State Consumer Disputes Redressal Commission
Mrs. Gayatri Hazra vs Greater Calcutta Developers Pvt. Ltd. & ... on 27 November, 2013
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal 11-A, MIRZA GHALIB STREET KOLKATA-700 087 S.C. CASE NO. : FA/40/2012 (Arisen out of Order No. 2 dt. 4.1.12 of DCDRF, South 24 Parganas in C.C.E.E.Case No. 265 of 2011) DATE OF FILING : 03.02.2012 DATE OF FINAL ORDER: 27.11.2013 APPELLANT Mrs. Gayatri Hazra Wife of Mr. Bani Kanta Hazra Residing at Quarter No. 25A, Street No. 72, P.O. & P.S. Chittaranjan Dist. Burdwan Pin-713 331 West Bengal. RESPONDENTS 1. Greater Calcutta Developers Pvt. Ltd. Having office at 2nd Floor 522B/1, Diamond Harbour Road Behala, 24, Parganas (South) Kolkata-700 034. 2. Mr. Partha Sarathi Saha Director Greater Calcutta Developers Pvt. Ltd. Residing at 4/3, Bhukailash Road Ekbalpur, Kolkata-700 023. 3. Mr. Gautam Ray Director Greater Calcutta Developers Pvt. Ltd. Residing at Flat No. 2B, 2nd Floor, Roopkatha 161, Banamali Naskar Road Parnashree, Kolkata-700 060. 4. Mr. Madhusudan Gupta Director Greater Calcutta Developers Pvt. Ltd. Residing at 11C, Mohini Mohan Road Kolkata-700 020. BEFORE : HONBLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT MEMBER : MRS. MRIDULA ROY FOR THE APPELLANT : Mr. Indra Prosad Mullick, Ld. Advocate FOR THE RESPONDENT : Mr. Tapas De, Ld. Advocate : O R D E R :
MRS. MRIDULA ROY, LD. MEMBER The instant Appeal is directed against an order bearing No. 2 dated 4.1.2012 passed by the Ld. District Consumer Disputes Redressal Forum, 24 Parganas (South) in C.C.Case No. 265/2011 wherein the Ld. District Forum, hearing the Ld. Advocate for the Complainant and perusing the complaint along with annexures found that the complaint could not be admitted since the complaint was filed in respect of a dispute concerning proposed sale of land, which was outside the ambit of the Consumer Protection Act.
Being aggrieved by and dissatisfied with the order the Complainant has preferred the instant Appeal.
The Complaints case, in brief, was that the complainant with an intention to have a plot of land, wherein her own residential home could be built up, approached the Ops who floated a residential scheme under the name and style Project Park View in the vicinity of Joka, Pailan, P.S. Bishnupur, Mouza-Daulatpur, Kolkata-700 104 and did the needful including payment of booking amount of Rs. 55,000/- for that and the Ops, accordingly, allotted a residential plot being No. 146 to the Complainant at a consideration of Rs. 1,83,750/-, vide a letter dt. 19.11.2005. Subsequently, a Certificate of Allotment containing the terms and conditions of the allotment was also issued to the complainant on 15.02.2006. Receiving the said certificate the Complainant deposited Rs. 5,000/- with the Ops towards the 1st instalment of consideration amount on the same date. Thereafter, the Complainant deposited the amount of subsequent instalments and in this manner, the complainant deposited Rs. 85,000/- in total within the period from 19.11.2005 to 23.02.2007.
The Complainant further submitted that as per Clause-11 of the Allotment Certificate an Agreement for Sale should have been executed after receipt of 30% of the total amount of consideration. Further, as per Clause 4(c) of the Allotment Certificate the plots of the land would likely be developed and delivered phase-wise within a period of 24 months from the date of allotment and the process of handing over the same to the intending purchaser would be started within 12 months from the date of issuance of Allotment Certificate. But, in spite of that, the Ops neither executed the Agreement for Sale nor did develop the site or offer the possession of the allotted plot.
However, the complainant contacted the Ops on several occasions by letters, over telephone etc. requesting to execute the Agreement for Sale and to deliver the possession in respect of the said plot of land, but all were in vain. Subsequently, the Complainant served a legal notice dt. 16.6.2010 upon the Ops, but that too yielded no fruitful result. Hence, the Complainant filed the complaint before the Ld. District Forum praying for direction upon the Ops to execute the Agreement for Sale in terms of the Certificate of Allotment in favour of the complainant, alternatively, to refund the entire deposited sum, i.e. Rs. 85,000/- to the Complainant, to pay Rs. 7,26,600/- in terms of Para-16 of the petition of complaint, i.e. to pay for callous response, inaction, inordinate delay in execution of Agreement for Sale and in handing over the possession in respect of the said plot along with refund of money with interest @ 24% p.a. from 19.11.2005 till realization thereof.
In support of his contention the Complainant annexed some documents to the petition of complaint including photocopies of Brochure, Certificate of Allotment, Receipts of payments etc. DECISION WITH REASONS Ld. Advocate for the Appellant is present but none appears on behalf of the Respondents. Therefore, the Appeal is heard ex parte.
In course of argument the Ld. Advocate for the Appellant has submitted that the transaction is not sale simplicitor in respect of the plot of land. The Ld. Advocate for the Appellant has further submitted that the Respondents have engaged themselves in development works in respect of the plots of land including the plot in question and, therefore, they shall be considered as service provider to the Complainant in respect of the said plot of land. In support of his contentions the Ld. Advocate for the Appellant has cited the decisions, namely, (1994) 1 Supreme Court Cases 243- [Lucknow Development Authority Vs. M.K.Gupta] and AIR 2005 Calcutta 108 [Mandira Mookerjee Vs. District Consumer Disputes Redressal Forum and others]. But those decisions relate to a different context and the same have no application in the instant case.
On perusal of record it appears that in the brochure issued by the Respondents that the Respondents undertook to facilitate the insurance coverage apart from extending other facilities to the intending purchasers. However, facilitating insurance coverage and other facilities shall be within the ambit of service. Therefore, in the instant case the Complainant/Appellant hired the services of the Ops/Respondents by paying a part consideration and thus becomes the Consumer under the Respondents and the case is well within the purview of the Consumer Protection Act. The Ld. District Forum was not justified in dismissing the complaint. In the result, the Appeal succeeds.
Hence, it is ORDERED that the Appeal is allowed ex parte without cost. The impugned order is set aside. The Ld. District Forum will try to dispose of the case on merits according to law as early as possible.
MEMBER PRESIDENT