26....20.04.2021.....
Today is fixed for delivery of final order. Final order containing 6 pages is ready.
It is sealed, signed and delivered in open Forum/commission.
Fees paid are correct.
Hence,
ORDERED
That the complaint case be and the same is hereby allowed on contest against the O.P. with cost of Rs. 10,000/-. The O.P. is directed to refund the entire consideration amount of Rs. 4,50,000/- with simple interest @ 7% p.a. with effect from20.09.2014 till realization within a period of 60 days from the date of this order. The O.P. is also directed to pay Rs. 20,000/- for deficiency in service and mental pain and agony to the complainant by sixty days from the date of this order.
Let copies of final order be supplied to both the parties free of cost as per rules.
The Final order also be made available in www.confonet.nic.in .
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
SOUTH 24-PARGANAS
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C.NO. 95 OF 2018
DATE OF FILING DATE OF ADMISSION DATE OF FINAL ORDER
14.08.2018 28.08.2018 20.04.2021
Present : President : Asish Kumar Senapati
Member: Sangita Paul
COMPLAINANT : Subir Saha, S/o late Dhirendra Chandra Saha Residing at Cluster IX, Flat No. C/3, Purbachal, salt Lake,P.S. Bidhannagar (S), Kolkata 97.
Versus
O.P Unnayan Developers(P) Ltd, a Company under the Companies Act, 1956 having its office at 47/1K, Hazra Road, P.S. Ballygunge, Kol- 19 and 18/44, Ballygunge place (East) Kol 19 and 1A ,Ballygunge place (East) Kol 19 represented by its Managing Director, Mr. Partha Ghosh Dastidar.
Sri Asish Kumar Senapati, President
This is a consumer complaint U/s 12 of the C.P. Act, 1986.
One Subir Saha (hereinafter referred to as the complainant) filed the case against Unnayan Developers Pvt. Ltd. (hereinafter referred to as the O.Ps), praying for refund of Rs. 4,50,000/- with interest @ 18% p.a., compensation of Rs. 2,00,000/- and litigation cost of Rs. 50,000/- from the O.Ps.
The sum and substance of the complaint is as follows:
That the complainant entered into an agreement with the O.Ps. on 02.09.2007 for purchase of land of 3 kathas at a consideration of Rs, 4,50,000/-. That the complainant paid Rs. 4,50,000/- by installments but the O.P. did not complete all necessary works for development of the land within 4 years and 6 months from the date of sale agreement as per terms and conditions of the agreement. The complainant requested the O.P. to refund the entire amount with interest @ 18% p.a but the O.P. did not pay any heed to it. Hence, the case is filed paying for a direction upon the O.P. to refund the advance of Rs. 4,50,000/- with interest @18% p.a., compensation of Rs. 2,00,000/- and litigation cost of Rs. 50,000/- from the O.P.
The O.P. appeared on 27.09.2018 through an Advocate and filed W.V. on 29.10.2018 inter-alia denying the materials allegations made out in the complaint, contending that the complainant has not hired services of the O.P. and home stay land cannot come under the purview of the C.P. Act. It is asserted that the complainant is not a consumer. It is the specific case of the O.P. that the complainant was allotted plot no. A-133 of the scheme plan Shantiban and subsequently the plot no. was changed from the A-133 to A-139 and the fact was intimated by a letter dated 20.03.2015. It is the version of the O.P. that the O.P. is entitled to get Rs. 41,216/- as interest from the Complainant as the complainant failed to pay the EMI within time. It is denied that the O.P. did not develop the land in question and the complainant is entitled to get Rs. 4,50,000/- with interest @ 18% p.a., compensation of Rs. 2,00,000/- and litigation cost of Rs. 50,000/- from the O.P. The O.P. has prayed for dismissal of the complaint. Subsequently both parties filed evidence and BNA.
On the basis of the above versions, the following points are framed for proper adjudication of the case :-
- Is the complainant a consumer under the provisions of C.P Act, 1986?
- Has this Forum/Commission jurisdiction to entertain the complaint?
- Is there any deficiency in service on the part of the O.P. No. ?
- Is the complainant entitled to get any order against the O.P, as prayed for?
DECISION WITH REASONS
Point nos. 1 & 2:-
The Ld. Advocate for the complainant submits that the complainant is a consumer as he entered into an agreement with the O.P. dated 25.09.2007 for purchase of a plot after development to be made by the O.P. It is also urged that the complainant paid total consideration amount of Rs. 4,50,000/- in advance and through monthly installments.
In reply, the Ld. Advocate for the O.P. submits that the complainant is not a consumer and the present case cannot come under the purview of the C.P. Act, 1986 . It is urged that the complainant booked a plot and the said transaction cannot come within the jurisdiction of the District Commission.
We have gone through the written complaint and the materials on record submitted by both parties. It is apparent from the Xerox copy of notarized agreement dated 25.09.2007 that the complainant entered into an agreement with the O.P. for purchase of a plot being no. A-133 of Scheme Shantiban at a consideration of Rs. 4,50,000/- and the complainant paid the said amount of Rs. 4,50,000/- but the O.P. has not developed the plot no. A-133 of “Shantigan Project” even after lapse of period of 4 years 6 months as per clause 9 of the agreement. Considering the facts and circumstances, we find that the complainant is undoubtedly a consumer in terms of the C.P. Act, 1986. We find that the complainant paid Rs. 4,50,000/- to the O.P. for consideration and the cause of action also arose within the jurisdiction of this Commission. Hence, it is held that this Commission has both territorial and pecuniary jurisdiction to entertain the complaint.
Point Nos. 3 & 4:
The Ld. Advocate for the complainant submits that the complainant paid Rs. 4,50,000/- for consideration but the O.P. did not develop the land as per agreement. It is urged that the complainant requested the O.P. more than once even in writing to refund the consideration amount along with interest @ 18% p.a. but in vein. It is contended that the complainant is entitled to get refund of Rs. 4,50,000/- along with interest @ 18% p.a., compensation of Rs. 20,000/- and litigation cost of Rs. 50,000/- from the O.P. It is also urged that the O.P. has deficiency in service as the plot in question has not been developed and handed over to the complainant. It is further urged that the complainant neither gave any consent nor accepted the change of plot number A-139 in lieu of A-133.
In reply the Ld. Advocate for the O.P. submits that the complainant was not regular in payment of installment and there was realignment of the said scheme of “Shantiban Project” for which the allotment of the complainant’s plot No. A-133 was changed to A-139 and the change of plot number was intimated to the complainant by a letter dated 25.03.2015. It is argued that the complainant paid only Rs. 4,50,000/- but he has not paid Rs. 30,000/- for water supply, electricity and telephonic connection and due to delayed payment made by the complainant, the complainant is to pay interest of Rs. 41,216/-. He further argues that the agreement relied by the complainant cannot be admitted into evidence for collateral purpose because of bar provided under section 35 of the Indian Stamp Act in view of decision of the Hon’ble Supreme Court passed in Avinash Kr. Chowhan Vs Bijay Krishna Mishra, reported in 2009, volume – 1, SCC at page 58 and Chilakani Gangulappa Vs Revenue Divisional Officer, Madanapalle reported in SCC, 2001,Vol II at page 365. It is urged that the ocalled agreement is not properly stamped , so it cannot be admitted as evidence. It is urged that the complainant is not entitled to get any relief in this case.
In reply the Ld. Advocate for the complainant submits that the agreement between the parties was executed on 25.09.2007 and notarized on 23.04.2008. It is urged that the Commission may consider the agreement dated 25.09.2007 for proper adjudication of the case and section 35 of the Indian Stamp Act has no application in this case.
We have gone through the written complainant, written version, evidence adduced by both parties documents and BNA submitted by both parties. Admittedly, an agreement between the parties was executed on 25.09.2007 for allotment of plot no. A-133 at “Shantigan Project” measuring about 3 Katha after development at a consideration of Rs. 4,50,000/-. There were certain terms and condition regarding payment of total consideration amount of Rs. 4,50,000/-. The complainant paid the entire amount of Rs. 4,50,000/- as consideration. It is the version of the complainant that the O.P. did not handover the plot after development even on receipt of Rs. 4,50,000/- after expiry of 4 years 6 months from the date of agreement as per clause 9 of the agreement. The Ld. Advocate for the O.P. raised a question that the notarized agreement between the parties is not admissible in evidence as the agreement is not properly stamped in view of section 35 Indian Stamp Act. He also relies 2 decisions of the Hon’ble Apex Court. On a careful consideration of the submission of both sides and with due regard to the decisions of the Hon’ble Supreme Court, we are of the considered view that the said decisions are not helpful in the present case. The strict compliance of Indian Evidence Act / Indian Stamp Act is not necessary for adjudication of a consumer complaint under the C.P. Act. We find that the O.P. received Rs. 4,50,000/- on the strength of an agreement between the parties dated 25.09.2007 and the plot in question has not been developed and handed over to the complainant as per agreement. Therefore, we have no hesitation to hold that the O.P. has deficiency in service. The complainant requested the O.P. for refund of his advanced amount of Rs. 4,50,000/- with interest @ 18% p.a but of no result. The O.P. has asserted that the complainant has informed about the change of allotment over plot no. A-133 to A-139 in “Shantigan Project” vide letter dated 25.03.2015 but the O.P. has failed to produce any document to substantiate that the said notice was received by the complainant. We find that the O.P. received the last installment on 20.09.2014. Therefore, it can be safely said that the O.P. realized that the entire consideration amount of Rs. 4,50,000/- on 20.09.2014. In our considered opinion, the complainant is entitled to get compensation of Rs. 20,000/- for deficiency in service and mental pain and agony. We also think that the complainant is entitled to get refund of the entire consideration of Rs. 4,50,000/- with simple interest @ 7% p.a. with effect from 20.09.2014 till realization of the entire amount. The complainant is also entitled to get litigation cost of Rs. 10,000/- from the O.P.
In the result, the CC case succeeds.
Fees paid are correct.
Hence,
ORDERED
That the complaint case be and the same is hereby allowed on contest against the O.P. with cost of Rs. 10,000/-. The O.P. is directed to refund the entire consideration amount of Rs. 4,50,000/- with simple interest @ 7% p.a. with effect from20.09.2014 till realization within a period of 60 days from the date of this order. The O.P. is also directed to pay Rs. 20,000/- for deficiency in service and mental pain and agony to the complainant by sixty days from the date of this order.
Let copies of final order be supplied to both the parties free of cost as per rules.
The Final order also be made available in www.confonet.nic.in .
Dictated and corrected by me
