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 development of land. Upon believing the advertisement of the OP and their representative in the year 2012 complainant booked a plot being Plot No. B-152 measuring about 04 cottahs comprised in Dag No. 2149, under khatian No. 689, Mouza – Bogdoba Machibhanga, P.S. Rajarhat in a project “Tapoban” at a total consideration of Rs. 10,00,000/- which includes development of land and its infrastructures. Complainant paid a sum of Rs. 2,00,000/- to the OP. OP should have developed the project site within 48 months from the date of booking. Complainant allege to have paid an amount of Rs. 10,00,000/- towards sale consideration of the subject plot. Complainant allege further that the OP has miserably failed to develop the above mentioned project “Tapoban” in spite of receiving entire consideration amount. In view of gross deficiency  in service as committed by the OP, the complainant, via legal notice dated 25.09.2018 demanded refund of entire monies paid along with interest  at the rate of 9 percent per annum. Such notice was unattended.

In view of the gross deficiency in service and unfair trade practices of the OP, the complainant has thus filed the present consumer complaint with the following prayer :-

Direct the OP to physical possession of the subject plot being No. B-152 of Tapoban Project with all infrastructural development alternatively to refund a sum of Rs. 10,00,000/- along with interest  at the rate of 12  percent p. a. from the date of respective payment till realization along with compensation to the tune of Rupees two lacs towards mental agony and harassment.

Award Rs. 50,000/- as cost of litigation.

Pass any order or further order which this Hon’ble Commission may deem fit and proper.

The OP has filed its Written Version and has denied the contents of the complaint, further stating that the Agreement for Allotment dated 05.10.2012 is unstamped and it cannot be looked into as an evidence for a collateral purpose under section 35 of the Indian Stamp Act. Complainant miserably failed to pay EMIs on stipulated time which was condition precedent to avail the said benefit. OP vide their letter dated 30.07.2012 gave reminder to the complainant to pay EMIs.

The OP has further stated that the reasons behind re-allotment of the plot was assigned to the complainant vide letter dated 07.02.2015. 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 with costs.

Complainant and OP filed affidavit of evidence along with photocopies of documents which they have relied in respect of their cases.

We have heard the Ld. Advocate for the parties and perused the material available on record.

The OP has also objected to the maintainability of the complaint on the ground that neither there is any agreement between the parties to the complaint providing infrastructure to the complainant nor any averment made in the complaint. Complainant cannot claim himself as a consumer as a hirer of service as defined under section 2 (d) (ii) of the CP, Act because there is no agreement between the parties.

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

The Ld. Advocate for the complainant, with respect to maintainability of the complaint, has argued that clause - 6 of the Application for Booking Form clearly shows that construction of metal road to reach the plots of land along with side drains, gardening & other necessary works pertaining to the basic infrastructure shall be completed within the period of payment of all installments. OP allotted Plot No. B-152 of “Tapoban Project” to the complainant at a total consideration of Rs. 10,00,000/-. He has further argued that the complainant paid the entire consideration amount to the OP vide cheques. Consideration amount includes development of land and basic infrastructures for residential plot. OP has miserably failed to develop the project site with amenities, as promised. The complainant allege to have been cheated, fooled and taken for  a ride and consequentially, with no other option left, the complainant is before this Commission praying for refund of the monies paid along with interest and damages.

Ld. Advocate for the OP has argued that complainant miserably failed to pay EMIs on stipulated time which is a condition precedent to avail the said benefit and the complainant has paid a sum of Rs. 2,33,334/- only out of total sale price. Thereafter, there is no sign of payment from the side of the complainant. Complainant is complete silence in the complaint as regards to payment of the outstanding amounts. And, therefore, the complainant, being defaulters, cannot expect all the amenities in the project. The Ld. Advocate has thus prayed that, the complaint, as filed by the complainant be dismissed in view of the reasons as substantiated above.

Having given our thoughtful consideration to the various pleas raised by the Ld.  Advocate for the parties, we find that the complainant has paid the entire consideration amount against subject plot as per statement filed by the OP (Annexure-A) in their WV. Thus, the allegation of non-payment of EMIs is not correct. Fact remains that the complainant failed to pay EMIs in schedule date. OP did not deny with regard to Agreement of Allotment in their WV but in course of argument such plea is taken by the Ld. Advocate for the OP. It is an admitted fact that Annexure-A of the consumer complaint, It appears to us that such Allotment Agreement dated  05.10.2021 is not signed by the parties. As such, there is no averment providing infrastructure development in the complaint petition. There is a specific averment in para-06 of the complaint petition that the OP ought to hand over the subject plot bearing No.  B-152 at Tapoban Project along with all basic infrastructure like electricity, metal road,  drainage system etc. by 2012. It is pertinent to mention here that the OP in para-8 of their WV  as well as Annexure-A of the WV admitted regarding existing of agreement. Booking Application and Allotment Agreement appeared to be speaking about development of infrastructures like metal road, drainage electricity etc, and the OP was supposed to provide such services. The issue involved the hiring of services by the complainant  from the OP as service provider making the complainant consumer of the OP/Developer within the ambit of Consumer Protection Act.

Since, as per terms of the Agreement, the subject land was supposed to be developed being provided with required infrastructures like metalled road, drainage, electricity etc, and the OP was supposed to provide the required services for the said development, the issue involved the hiring of services by the complainant from the OP as service provider making the complainant Consumer of the OP/Developer within the meaning of Section 2 (6) (i) of the CP Act, 2019.

That the complainant had paid the entire consideration of the plot of land to the OP and it is  admitted by the OP itself. As regards acceptability of the Agreement with improper stamp duty , we are of the opinion that the spirit of the Consumer Act is not to indulge in hyper technicalities to intervene to the detriment of the progress of the consumer cases. The basic objective of the Act is to protect the interest of the consumer reaching them justifiable benefit in minimum most time. OP’s contention towards refusal of the acceptance of the validity of the Agreement for the same being not properly stamped was of little significance as insufficient stamp duty does not determine the degree of deficiency in rendering services particularly as on the instant occasion, where the full consideration has been received by the OP without playing his role in terms of an Agreement with which the parties have tied down themselves. The OP probably lacks the authority to raise an unconscionable plea at this stage as the facts of transaction and the purpose which the same was made for are now transparent.

Peculiarly enough, the Ld. Advocate  carefully chose the buttered portion of the bread while refusing to accept the validity of the Agreement on one hand and on the other hand, claiming at the same time as per provision of the said agreement  interest against installment defaulting and deduction of a huge percentage of money against refund of the paid amount. What was more, the Ld. Advocate did not even consider the facts of the client’s enjoying interest on a huge amount of consideration paid for purchase of the said property for a pretty long period of time.

The claim of interest for 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 complainant  subjecting them to immense financial loss without getting either the land as per Agreement or the refund of entire money they paid for purchase of the said property.

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 viod 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-Vs-M/S 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 views 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 complainant cannot be made to wait indefinitely for possession of the subject plot in Tapoban Project as the OP did not complete its infrastructures. Therefore, we are of the considered view that the complainant is entitled for refund of the principal amount with reasonable interest, which we quantify  at the rate of  9 percent p.a. from the date of respective date of deposit till the date of actual refund with litigation cost of Rs.  5,000/-.

The OP is directed to refund Rs. 10,00,000/- (Rupees. Ten lacs) only to the complainant along with interest  at the rate of 9  percent p.a. from the date of respective date of deposit till the date of actual refund along with litigation cost of Rs. 5,000/- (Rs.  five thousand) only.

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  percent to 12 p.a.

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

A copy of judgment be provided to the parties as mendated by the Consumer Protection Act. The Judgment be uploaded fortwith on the website of this commission for perusal of the parties.