State Consumer Disputes Redressal Commission
Smt. Srabani Bose vs M/S. Unnayan Builders Pvt. Ltd. on 26 April, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/616/2018 ( Date of Filing : 20 Aug 2018 ) 1. Smt. Srabani Bose W/o Sri Rajat Bose, Ruchira Residency, Flat-7/3, Tower-8, 369, Purbachal Kalitala Road, Kolkata - 700 078. ...........Complainant(s) Versus 1. M/s. Unnayan Builders Pvt. Ltd. Corporate office at 18/44, Ballygunge Place(E), Kolkata - 700 019, P.S. Ballygunge. ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE MANOJIT MANDAL PRESIDENT HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER PRESENT: Dated : 26 Apr 2022 Final Order / Judgement SHAMIKHSA BHATTACHARYA, MEMBER
The complainant has filed the instant case under section 17 of C.P. Act, 1986 against the OP alleging deficiency in service.
The facts of the case, in brief, are that being attracted by the advertisement of the OP(developer) the complainant was interested to purchase a plot of land from the OP for a total consideration of Rs. 21,25,000/- (Rupees twenty-one lakh twenty five thousand) only after making necessary development in a habitable condition measuring an area of land 3 Cottahs 0 Chittak 0 Sq.ft. area lying and situated at Mouza - Kulberia, Dag No. 680, under Khatian No. 1376 and an agreement was signed by and between the OP and complainant on 31.01.2015 to that effect. The complainant paid Rs. 21,25,000/- (Rupees twenty-one lakh twenty five thousand) only on different dates as per terms of conditions. The complainant paid Rs. 1,80,000/- and Rs. 1,62,500/- by way of two cheques both dated 08.09.2010 drawn on UCO Bank and SBI respectively. Thereafter, complainant paid 54 installments by way of cheques from 28.02.2011 to 31.12.2015.
It is pertinent to mention that the complainant entered into an agreement dated 21.05.2011 prior to the present agreement dated 31.01.2015 for the purchase of a the 2.5 cottah land being plot no. UG-B 285/1 for a consideration of Rs. 16,25,000/- with the OP where the complainant already made of a payment of 14,89,569/- by 31.10.2014 vide receipt copy issued by OP dated 20.01.2015. Thereafter on the offer of the OP the complainant exchanged the 2.5 cottah land with a 3 cottah land for the price of 21,25,000/- and complainant agreed with the same and entered into the present agreement dated 31.01.2015 and already made the remaining payment through 12 installments and the last installment was paid on 31.12.2015. It was agreed that the plot of land would be handed over by way of registered deed of conveyance in favour of complainant within the period of payment of EMIs. The complainant paid entire amount on 31.12.2015. But even after expiry of long period of time OP failed and neglected to hand over the possession of the land and the complainant was waiting for the final step of the OP regarding handing over the possession of the land. But the OP intimated the complainant by their letter dated 09.09.2013 that the project in question would be completed and handed over by December, 2015. The complainant made several communications through phone with the OP to know the status of the project but nothing fruitful result yielded. In January, 2017 the complainant came to Kolkata and visited the site and saw that there was no tangible progress and when the complainant visited the office she was informed the purchased plot by the complainant being Block - B would take more time to be completed and the complainant was offered to exchange her present plot with any remaining plot of Block-A then the complainant was interested and asked the official of the OP to make arrangement with an equivalent plot of Block-A and let the complainant know about the same but the OP never turned up. On 17.07.2017 the complainant received an e-mail suggesting plots of maps attached to the mail for their consideration then the complainant replied but the OP did not respond thereafter. Since the OP failed and neglected to hand over the possession of the land within the stipulated period of time the complainant has no other alternative than to file the instant complaint case praying for direction upon OP to refund the entire consideration of Rs. 21,25,000/- (Rupees twenty-one lakh twenty five thousand) only along with interest @ 18% p.a. on and from 08.09.2010 till the date of actual payment to the complainants. Complainant has also prayed for compensation of Rs. 10,00,000/- (Rupees ten lakh) from the OP for causing physical and mental harassment along with litigation cost of Rs. 50,000/- (Rupees fifty thousand) only.
The sole OP appeared before this Commission and filed their written version. In their written version OP denied all material allegations inter-alia stated that there was no agreement between the parties relating the service of any description with regard to subject land and , therefore, the instant case should be dismissed as not maintainable. The OP has also stated that the payment chart showed by the complainant is not correct and the OP craves leave to refer the same at the time of hearing.
OP has stated in their written version that on 06.09.2010 the complainant through her husband Sri Rajat Bose booked a plot measuring 2 cottah 8 chitak from the OP. Thereafter, on 09.03.2011 the complainant and the OP entered into an agreement for the same. The price of the plot of land was fixed at Rs.16,25,000/- @ Rs. 6,50,000/- per cottah. As per terms and conditions appended with the booking application as well as agreement entered into by and between the complainant and the OP the complainant was to pay 20% of the total value of the plot at or before execution of the agreement and remaining amount would be paid by 48 EMIs. After execution of the agreement dated 09.03.2011 the complainant did not pay the EMIs in time. The complainant after making payment of some EMIs decided to buy a larger size plot with the object and with that object she requested the OP by her letter dated 17.01.2015. By the said letter she expressed her intention to book the plot no. being B 242 of Unnayan Garden and to cancel the plot no. B 285/1. Accordingly, she entered into separate agreement on 31.01.2015. She requested to cancel the booking of plot no. B285/1 and to adjust her deposited amount for the earlier plot with the plot being No. B242. Accordingly previous agreement was cancelled and new agreement was signed by and between the parties on 31.01.2015 which was notarized on 24.02.2015. As per complainant's request the amount of Rs. 14,89,569/- for the plot no. B285/1 was transferred to the credit of the complainant against plot no. B242 of the Unnayan Garden. It is stated that due to unforeseen reason including commission of default by huge numbers of allottees to pay their EMIs, there was some disruption of work on the land which was duly intimated to the complainant. The complainant having realized the genuine inconvenience of the OP and the OP wanted to shift their booking from Block - B to Block - A of the Unnayan Garden but unfortunately the complainant did not like any plot in Block - A. The OP has further stated in their written version that since the delay in completing the work was caused not due to any fault on their part, Force Majeure Clause as incorporated in Clause 12 of the said agreement applies in this case. It was also mentioned in the Clause No. 21 of the agreement that if the allottee avails the benefit of waiver of interest as provided in Clause 4 of the said agreement; in that event they would not be entitled to any interest while getting back the money in terms of Clause 21 of the agreement. The complainant availed the benefit waiver of interest and for that reason they cannot claim any interest from the OP. The OP has also stated that the case is barred by limitation and the complainant has not suffered any loss or injury. The Ld. Counsel for the OP has stated that the case is premature since the last payment was made in 2015 and thereafter before completion of 48 months complainant filed the instant case. There is no cause of action.The OP has also stated that as per agreement if the OP is at fault then the complainant could claim simple interest @ 10% p.a. but here the complainant has claimed simple interest @ 18% p.a. Since there was no fault on the part of OP therefore they prayed for dismissal of the complaint case.
In the course of argument Ld. Advocate for the complainant has submitted that in the written version OP has admitted that they have taken the money from the complainants. As per agreement the OP is bound to deliver the plot of land within the period 48 installments (Clause No. 11 of the agreement dated 31.01.2015). It is not denied that the complainant and the OP entered into the said agreement for purchasing a plot of land for a total consideration of Rs. 21.25,000/- (Rupees twentyone lakh twenty five thousand) only after cancelling the previous agreement dated 21.05.2011 for which the complainant already paid 11,89,569/-. The said amount was adjusted with the new agreement . The complainant paid the entire amount by way of 55 installments as per previous agreement and subsequent agreement. The Clause II reads as follows :-
"the Company shall develop the said land on behalf of the Allottee with construction of metal road to reach the plot of the land along with side drains and other necessary works pertaining to the basic infrastructure such as water supply connection, electric connection and telephone connection which shall be completed within period of 48 installments." The complainant paid last EMI on 31.12.2015 which is evident from the petition of complaint, running page no. 28 to 85. From the act of the OP it is evident that the OP is deficient in service as well as OP has adopted unfair trade practice since they neither hand over the plot of land not refunded the money with interest 10% p.a. as laid down in the agreement in para no. 21. Therefore the Ld. Counsel for the complainant has prayed for allowing the complaint petition.
The Ld. Advocate for the OP has submitted that complainant has not hired any service U/s 2(7)(ii) of C.P. Act, 2019. As per 1986 C.P. Act the complainant is not the consumers. In the agreement there is no story of housing construction. The complainant has not paid any amount for hiring service. She paid the composite amount. The agreement was made for land not for hiring any service. Land does not come under service and/or good. The Ld. Advocate for the OP has also submitted that the Consumer Forum is not the appropriate place to agitate her grievance. The OP has not denied that they have not handed over the plot of land. The OP has also submitted that the agreement is not properly stamped and in this connection he has cited the judgement passed by Hon'ble High Court in Dr. Swapnadin Lahiri -vs- Tridip Das Roy reported in 1999 Volume. 2 CHN at page 369 (paragraphs 1, 14 & 15) and the judgement passed by Hon'ble Supreme Court of India in Avinash Kumar Chowhan -vs- Vijay Krishna Mishra reported in 2009 Vol. I, Supreme at page 58 under paragraph 22. He has also argued that the CP Act, 1986 does not override the Contract Act, 1872 and other enactments in force, applicable to the service availed by the consumer from the service provider. In this connection, he cited the judgement passed by Hon'ble Apex Court in Civil Appeal No. 5622 of 2019 (M/S. Magna Fincorp Limited vs. Rajesh Kumar Tiwari). Moreover, the Ld. Counsel for the OP has alleged that the complainant has not paid the amount in time and the last payment was made by the complainant on 31.12.2015. The case was filed before 48 months from the date of last payment and therefore the case is premature one. The Ld. Counsel for the OP has submitted that the development has been completed and due to Force Majeure Clause. OP did not complete the development work because of Clause No. 12. Hence, he prayed for dismissal of the complaint case.
Upon submission of both the parties and on perusal of entire material on record there was no dispute that the complainant has entered into the agreement with OP on 31.01.2015 for purchasing a plot of land measuring 3 Cottahs 0 Chittak 0 Sq.ft. area lying and situated at Mouza - Kulberia, Dag No. 680, under Khatian No. 1376. It is also not disputed that the complainant paid Rs. 21,25,000/- (Rupees twentyone lakh twenty five thousand) only as total consideration. Now the question is whether the complainant has paid in time or not. For the sake of argument if we consider that the complainant has not paid the amount in time in that case OP has to show the document that they have cancelled the agreement due to non-payment by the complainant in time. OP has failed to provide any such document to that effect. All the original money receipts have been showed by the Ld. Counsel on behalf of complainant and the OP has not denied the same. Therefore, the argument that complainant has not paid the amount in time cannot be sustainable. The second argument by the Ld. Counsel for the OP is that the agreement is not properly stamped. The judgements cited by the Ld. Counsel is not applicable here. The agreement in question is executed in an unregistered document by the OP as well as the complainant . Now, the OP cannot take advantage of its own wrong. The impounding agreement is not a matter to be considered by the Consumer Commission. When there is scope of the part of the purchaser to purchase the property in question by paying stamp duty and registration fee at the time of the execution of the agreement, the OP/Developer would not be prejudiced in any way. The third argument of the OP is that the land is already developed and they are ready to deliver the plot of land to the complainant . It is astonishing that without supporting any document the OP has argued that the land has been developed. Neither a single piece of proof has been annexed nor any communication made to the complainants in support of his argument. OP never intimated the complainant that they are ready to deliver the plot of land. The fourth argument of the OP is that they did not develop the land in time due to Force Majeure Clause. Ld. Counsel for the OP has failed to show any reason which is beyond their control and which can be termed as Force Majeure Clause. Moreover OP has not placed any document which can show what prevented them to develop the plot of land after receiving the money and retaining the amount for so many years. It was agreed in the agreement that the plot of land would be developed within 48 months. The last payment was made by the complainant in 2015. Seven years have already been elapsed. If the plot of land is developed then also complainant is not bound to take the possession of land. The complainant cannot wait for inordinate delay. In the case in hand no question of taking possession of the land would arise since the land is not developed yet. As per Clause No. 21 of the agreement it was agreed that if the OP fails to complete the project within the stipulated time the allottee may take refund of the full money paid by him/her towards price of the land with interest @ 10% p.a. As per Clause 22 of the agreement the company shall prepare and hand over the draft deed of the said land to allottee within 15 (fifteen) days from the date of receipt of last installment along with interest and other payments, if any. The last installment was paid by the complainant on 31.12.2015. This is 2022 but no offer letter was sent by the OP to the complainant . The argument on the part of the OP that the case is prematured cannot be taken into cosideration since as per 11 the OP has to develop the land with basic infrastucture and amentinties within the period the payment of 48 installments. The last payment was made by the complainant on 31.12.2015 and the case has been filed in 2018 and as such the case is not prematured one.
The argument on behalf of the OP that the complainant has availed the waiver of interest but in the case in hand the OP fails to show any document that complainant has failed to pay the amount in time and OP has given them the waiver of interest benefit. If the complainant failed to pay in time there was right of the OP that they would cancel the agreement or they can communicate the complainant to that effect. But in this case OP has accepted the full amount. No question was arisen for the payment by the complainant . After receiving a huge amount of Rs. 21,25,000/- (Rupees twentyone lakh tweenty five thousand) only from the date of previous agreement dated 21.05.2011 till the last date of EMI i.e31.12.2015 OP kept themselves mum. No single Force Majeure Clause has been showed by the OP. OP has admitted that they could not fulfill the agreement within sitpulated time. But no cause has been shown for what reason they could not develop the plot of land yet which was God's act and beyound the control the OP.
In view of foregoing discussion we are of the view that OP is very much deficient in service and there is gross negligence on their part. Therefore the complainant is entitled to relief. Now the question is whether the complainant is entitled to get interest @ 10% p.a. as per Clause 21 of the agreement or more. It is beyond any question that OP has failed to complete the project within the stipulated time. Therefore, Clause 21 would be applicable if the OP would offer refund after the stipulated period of time if OP offered in that way the complainant has not taken the recourse of law. Finding no other alternative complainant has come before this Commission for the prayer mentioned in the petition of complaint. Therefore, we are of the view that complainant is entitled to refund of deposited amount along with interest 15% p.a. from the date of last payment till the date of realization in the form of compensation.
As a result the complaint case succeeds.
Hence, Ordered The complaint case being no. CC/616/2018 be and the same is allowed on contest.
The OP is directed to refund the amount Rs. 21,25,000/- (Rupees twenty one lakh twenty five thousand) only to the complainant along with compensation in the form of simple interest @15% p.a. from the date of respective payment till the date on which the aforesaid amount is refunded along with the compensation in terms of this order. The payment in terms of this order shall be made within two months from today.
The OP is also directed to pay sum of Rs. 10,000/- (Rupees ten thousand) only for litigation cost to the complainant within the aforesaid stipulated period.
If the OP fails to pay the amount within the aforesaid stipulated period of time the complainant is at liberty to put the decree into execution.
Thus the complaint case is disposed of accordingly.
[HON'BLE MR. JUSTICE MANOJIT MANDAL] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER