FINAL ORDER/JUDGEMENT           

SHRI SWAPAN KUMAR MAHANTY,   PRESIDENT

The facts, as stated in the complaint  are that the OP is engaged in the business of land. Upon believing the advertisement published on the website of the OP, complainants booked a plot of land measuring about 02 cottahs and 08 chittaks @ Rs. 6,50,000/- per cottahs at a total price of Rs. 16,25,000/- and they have paid a sum of Rs. 3,50,000/- being 25 % of total value of the land as booking money by issuing two account pay cheques amounting to  Rs 1,62,500/- each   drawn at SBI Haldia Branch and OP encashed such Cheques. The OP had entered into an Agreement of Allotment dated 21.11.2011 with the complainants for sale of plot of land being No. EX-7 measuring about 02 cotthas 08 chittaks of land under the project “Unnayan Garden-B” within Dag No.  680, Khaitan No. 681, under JL No.7 , PS- Kashipur Leather Complex within the District of 24 Pgs (S) at a total consideration of Rs. 16,25,000/- which includes development of basic infrastructure i.e. construction of metal road to reach the plot along with side drains and other necessary works such as water supply connection, electricity, telephone connection and other modern amenities. OP should have developed the project site within 48 months from the date of booking. Complainants further allege that they have paid the entire consideration amount to the OP as per agreement of allotment towards sale consideration including the development of subject plot. Complainants alleged further that the OP has miserably failed to develop the above mentioned project Unnayan Garden-B. Despite receiving entire consideration amount, the OP Company is fully aware the fact that East Kolkata Wetlands is one of the Ramsagar designated Wetlands and the OP would not be able to obtain any permission from the respective authority to construct any permanent structure in Mouza, Kulberia within East Kolkata Wetlands areas. In view of gross deficiency in service as committed by the OP, the complainant No. 1 Tilak Chandra Pal requested the OP vide letter dated 03.04.2018 to refund the entire consideration amount along with interest @ 10 % p.a. OP replied such letter and assured to refund the consideration amount by six equal installments and such refund will be started from January, 2020.

In view of the gross deficiency in service and unfair trade practice of the OP, the complainants have thus, filed the present consumer complaint with the following reliefs:-

Direct the OP to provide  a Bastu Land measuring about 02 cottahs and 08 chittaks instead of allotted plot being No. EX-07, in default, to refund the total deposited amount of Rs.  16,24,984/- along with interest @ 10 % p.a. in terms of clause No.  21 of the agreement of allotment, to pay compensation of Rs. 3,00,000/-  for mental agony and litigation cost.

OP has contested the case by filing WV and has denied the contents of the complaint, further stating that the agreement for allotment dated 21.11.2011 is unstamped and it cannot be looked into as evidence for a collateral purpose U/s 35 of the Indian Stamp Act. Complainants measurably failed to pay EMIs on stipulated time which was condition precedent to avail the said benefit. The OP has further stated that the instant complaint is barred by limitation and there is no deficiency in service and unfair trade practice on the part of the OP.

In view of the aforesaid contentions, the OP has sought dismissal of the consumer complaint.

Complainants and the OPs have filed their evidence supported by affidavits along with photo copies of documents which they have relied in respect of their cases. Both parties have also filed their BNAs.

We have heard the Ld. Advocate for the parties and perused the evidence on record as well as photocopies of documents.

The OP has objected the maintainability of the complaint on the ground that neither there is any agreement between the parties to the complaint providing developmetn of  infrastructure to the complainants nor any averment made in the complaint. Complainants cannot claim themselves as a consumers as well as a hirer of service under the CP Act. Ld. Advocate of the OP has alleged  that the complainants miserably failed to pay EMIs on stipulated time which is a condition precedent to avail the said benefit.  On the contrary, the Ld. Advocate for the complainants with respect to maintainability of the complaint, has argued that clause 11 of the agreement for allotment clearly shows that construction of metal road to reach the plots of land along with side drains and other necessary works pertaining to the basic infrastructure such as water supply connection, electricity, and telephone connection, which shall be completed within the period of payment of 48 installments. OP allotted plot No. EX-7 measuring about 02 cottahs 08 chattaks 0 sq.ft. under the Mouza Culberia, comprised the Dag No. 680, khatian No.  681 under  PS KLC within the District of 24 Pgs (S)   to the complainants at a total consideration of Rs. 16,25,000/- in  Unnayan Garden-B Project. He has further argued that the complainants paid the entire consideration to the OP in terms of the agreement  of allotment and the OP accepted the entire consideration amount. Consideration amount includes development of land and basic infrastructure for residential plot. OP has miserably failed to develop the project site with all amenities as promised. Complainants alleged to have been cheated and consequently, with no other option left the complainants are before this commission praying for replacement of Bastu Land measuring about 02 cottahs and 08 chittaks alternatively to refund the monies paid along with interest, compensation and litigation cost.   

Having given our thoughtful consideration to the various pleas raised by the Ld. Advocate for the parties, we find that the complainants have paid the entire consideration amount against subject plot fully mentioned in the complaint petition. The OP accepted all the payments paid by the complainants. Thus, the allegation of non-payment of EMIs is not correct. Fact remains that the complainants failed to pay two EMIs with the stipulated period but the OP accepted such payment without any objection. The OP did not deny with regard of allotment of plot in their WV. There is specific clause being No. 11 in the agreement of allotment that “the Company shall develop the said land on behalf of the allotee on construction of metal road to reach the plots of land along with side drains and other necessary works pertaining to the basic infrastructure such as water supply connection, electricity connection and telephone connection, which shall be completed within the period of payment of 48 installments”. OP in their WV admitted regarding existence of allotment agreement. Thus, the issue involved the hiring services by the complainants by the OP as service provide making the complainants consumers of the OP/developer with ambid of CP Act.   

Since, as per terms of the agreement of allotment, the subject plot of land was supposed to be developed being provided with required infrastructure like metal road, drainage, electricity etc. and the OP was supposed to provide the required services for the said development, the issue involved hiring services by the complainants from the OP as services provider making the complainants consumers of the OP/developer within the meaning of Section 2 (6) (i) of the CP Act, 2019.

That the complainants had paid the entered consideration of plot of land and it is admitted by the OP itself as regards acceptability of the agreement with in proper stamp duty. We are of the opinion that this spirit of the consumers act is not indulged in hyper technicalities to intervene determent of the progress of the consumer cases. The basic objective of the act is to protect the interest of the consumers reaching them justifiable benefit in minimum most time. OP’s contention towards refusal of the acceptance of validity of the agreement for the same being not properly stamped of little significance insufficient stamp duty does not determine the degree of deficiency in rendering services particularly as on the instant occasion where the fully consideration has been received by the OP without playing their role in terms of agreement with which the parties have tied down themselves. The OP probably lacks the authority to raise and unconscionable plea at this stage and the facts of transformation for which the same was made for are now transparent.

Peculiarly enough, the Ld. Advocate carefully choose the buttered portion of the bread while refusing to accept the validity of the agreement in one hand and other hand claiming at the same time as per provisions  of the said agreement interest against installment deaulfing and deduction of a huge percent of money against refund of the paid amount. What was more the ld. Advocate did not consider the facts of the client’s enjoying on a huge amount of consideration paid for purchase of the plot of land for a pretty long period of time.

The claim of interest of installment defaulting and deduction against refund as mention above, if given effect to as per agreement will only lead to the deriving of unlawful gain by the OP out of no investment or rendering no service prejudicing seriously the interest of the complainants subjecting them to immense financial loss without getting either the plot of land as per     agreement or to refund of entire money they paid for purchase of the said plot of land.

Since the provisions of the agreement appear to have been drafter with a view to protecting unilateral interest of the Developer/OP aiming at providing him an unlawful enrichment, we intend to consider the provisions to be treated as void abinitio. In this context, we place our reliance to the decision of the Hon’ble NCDRC  in FA No. 1378/2016 [Rakesh Anand and Anr. Royal Empires] reported in 2018 (2) CPR 503 (NC) wherein the Hon’ble NCDRC was pleased to observe that the consumer Fora should not be expected to accept the terms and conditions of the unconscionable  contract between parties which might go against the interest of the consumers.

Above being our observations, we are of the considered view that the OP has committed as serious deficiency in rendering services and has resorted as well to unlawful trade practice.

In the instant case also the complainants cannot be made to wait indefinitely for possession of the subject plot in Unnayan Garden-B Project as the OP did not complete its infrastructures. Therefore, we are of the considered view that the complainants are entitled in replacement of allotted plot being No. EX-7 measuring about 02 cottahs and 08 chittaks alternatively, the OP to  refund Rs. 16,24,984/-  with interest @ 9 % from respective date of payment till the date of actual refund along with litigation cost of Rs. 5,000/-. The OP shall pay the aforesaid awarded amount within 60 days from the date of passing of this order, failing which the rate of interest will increase from 9 % to 12 % p.a.

Thus, the consumer case is allowed on contest in above terms.

There is inordinate delay in disposal of the case due to heavy pressure of judicial work of the commission and also due to Covid-19 pandemic.

A copy of judgment to be provided to the parties free of cost as mandated by the CP Act. The judgment be uploaded forthwith on the website of this commission for perusal of the parties.