Dt. of filing -14/08/2019

Dt. of Judgement – 25/02/2020

Mrs. Sashi Kala Basu, Hon’ble President

        This consumer complaint is filed by the Complainant namely Ashwani Kumar under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties namely 1) Walden Estates Ltd. 2) Sri Dipankar Naskar and  3) Smt. Nisha Naskar, alleging deficiency in service on their part.

          Case of the Complainant in short is that on getting information about declaration by the Opposite Parties of establishing a residential township under the name and style “JOKA NEW TOWN” he booked a plot of land being Plot No.459 measuring about 2 Cottahs in the said project comprised in Dag No.1212 under Khatian No.178 at a total consideration of Rs. 6,60,000/- and an Agreement for Sale was also entered into by and between the parties on 16/03/2016. Opposite Party No.1 is the Company and is represented by its Director namely Opposite Party No.2 & 3. Time to time Complainant has made the payment of Rs.2,95,000/- in total out of the consideration of Rs.6,60,000/-. But subsequently Opposite Party No.2 informed the Complainant that the agreed plot was not available and told him that he will be allotted different plot of land. But inspite of the same no plot of land was allotted to the Complainant. On 30/8/2018 Opposite Parties sent a letter informing that the project was not existing due to non-availability of the land and they wanted to refund the sum paid by the Complainant. But on several occasions Complainant went to the Office of the Opposite Parties but till date neither any alternative plot of land has been delivered nor the amount paid by the Complainant has been refunded. So the present complaint has been filed by the Complainant praying for directing the Opposite Parties to handover possession of the plot of land as per agreement for sale dated 16/3/2016 and to execute and register the Deed of Conveyance upon receiving the balance consideration from the Complainant or in alternatively to refund Rs.2,95,000/- paid by the Complainant along with interest from the date of last payment i.e. 20/03/2016, to pay compensation of Rs.3,00,000/- and litigation  cost of Rs.30,000/-.

Complainant has annexed with the complaint, copy of the agreement for sale dated 16/3/2016 entered into by and between the parties, money receipts showing payment to the Opposite Parties and the copy of the letter dated 30/3/2018.

On perusal of the record it appears that notice was sent. But inspite of service no step was taken by the Opposite Party No.1 & 3. However, one of the Directors namely Opposite Party No.2 had appeared through his Ld. Advocate. But subsequently did not take any step neither filed any written version. So vide order dated 22/10/2019 the case came up for ex-parte hearing.

During the course of evidence, Complainant filed affidavit-in-chief and ultimately argument has been advanced.

          So the only point requires determination is:

          Whether the Complainant is entitled to the relief as prayed for?

Decision with reasons

          Complainant has claimed that agreement was entered into between Opposite Party No.1 being represented by its Director with the Complainant to sale the plot of land being no.459 in the project called “JOKA NEW TOWN”, after its development. In support of his case, Complainant has filed the agreement dated 16/3/2016 wherefrom it appears that the Complainant agreed to purchase the said plot of land at a consideration of Rs.6,60,000/-. It was agreed between the parties that the Opposite Party shall complete the development of the said plot and the Opposite Party shall execute and register the Deed of Conveyance within 36 months from the date of the said agreement. Accordingly Complainant has paid Rs.2,95,000/- out of total consideration of Rs.6,60,000/- and in support of such payment, he has filed the several receipts showing payment. Copy of the letter dated 30/3/2018 is also filed by the Complainant which is written by the Opposite Party No.2 to all his customers declaring that due to non-availability of the land, said project is not in existence and he would refund money paid by the customers. So the said letter supports the claim of the Complainant that the project was not completed and he has not been handed over the plot as agreed. On consideration of the money receipts issued by the Opposite Party No.1 Company, Complainant is entitled to the relief as prayed for. However, it may be pertinent to point out that as it is apparent from the letter dated 30/3/2018 that the project does not exists, any direction to Opposite Party to hand over the plot of land, will be ineffective. So it would be appropriate to direct the Opposite Parties to refund the sum.  Ld. Advocate appearing for the Complainant has also pressed for directing the Opposite Parties to refund the money.

So Complainant is entitled to the refund of money along with interest on the said sum from the date of last payment. Since interest is allowed, we find no justification to allow compensation as prayed by the Complainant.

Hence,

                 ORDERED

CC/418/2019 is allowed ex-parte.

Opposite Parties are directed to refund Rs.2,95,000/- to the Complainant along with interest on the said sum @ 12% p.a. from the date of last payment  i.e. 20/03/2016 to till this date within 60 days in default, the entire sum shall carry interest @ 12% p.a. till realisation.

Opposite Parties are further directed to pay litigation cost of Rs.12,000/- within the aforesaid period of 60 days.