State Consumer Disputes Redressal Commission
Debrupayan Housing Co. Ltd. vs Smt. Bandana Barai on 17 January, 2014
DRAFT STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, MIRZA GHALIB STREET KOLKATA 700 087 S.C. CASE NO.FA/76/2013 (Arising out of order dated 09/11/12 in Case No.CC/256/2011 of District Consumer Disputes Redressal Forum, Barasat, North 24-Parganas) DATE OF FILING:22/01/13 DATE OF FINAL ORDER:17/01/14 APPELLANT : Debrupayan Housing Co. Ltd. 102/A, Central Road, H.B. Town P.O. Sodepur, P.S. Khardah District-North 24-Parganas RESPONDENTS : Smt. Bandana Barai W/o-Sanjay Barai 2) Sunita Barai Both of 41, Bansrasi Ghosh Street P.S. Girish Park,P.O. Barabazar Kolkata-700 007 BEFORE : HONBLE JUSTICE : Sri Kalidas Mukherjee President HONBLE MEMBER : Smt. M. Roy FOR THE APPELLANT : Mr. Tarun Chakraborty Ld. Advocate Mr. Anjan Datta Ld. Advocate FOR THE RESPONDENTS : Mr. Tarun Jyoti Banerjee Ld. Advocate ------------------------------------------------------------------------------------------------------------ : O R D E R :
HONBLE JUSTICE SRI KALIDAS MUKHERJEE, PRESIDENT This appeal is directed against the judgment and order passed by Learned District Forum, Barasat, North 24-Parganas in case no.CC 256 of 2011 allowing the complaint and passing the order as follows:
Hence ordered, that the complainant be and the same is allowed on contest with a cost of Rs.3,000/- against the O.P. O.P is directed to hand over possession of the plot as described in the schedule of agreement to sale dated 09.02.07 and to execute sale deed and register the same within one month from the date of this order, failing which for each days delay a sum of Rs.400/- per day shall be assessed as interest for non compliance and disobeyance of the Forums order and till execution and registration of the sale deed and said assessed total amount shall be deposited by the O.P to State Consumer Welfare Fund.
O.P is also imposed a penalty of Rs.25,000/- for adopting unfair trade practice in this case only to deprive the bonafide consumer to transfer the plot of agreement to sale even after grabbing entire consideration of sale from complainant and O.P shall deposit the same to State Consumer Welfare Fund.
O.P is directed to comply the order very strictly, failing which for violation and disobeyance of Forums order, O.P shall have to pay further interest at the rate of Rs.200/- per day till full satisfaction of the present order and said amount shall be paid to the State Consumer Welfare Fund.
Let copies of the order be supplied to the parties free of cost when applied for.
The case of the complainant/respondent, in short, is that the OP is the owner of scheduled land appertaining to Dag No.569, Khatian No.328 of Mouza Mohispota, P.S. Ghola, District-North 24-Parganas.
The OP took initiative to make a SABUJ SWAPNER UPANAGRI under the name and style DEBRUPAYAN NAGAR over a few acres of land within Mouza Mohispota. The OP by circulating brochures offered the vacant land for residential flat, bungalow, commercial plot and commercial complex with common facilities, namely, plenty of plants, flowers, childrens park, meditation centre, library, main entrance road, super markets and shopping mall, school, hospital, equipped with modern amenities etc. The Complainants agreed to purchase land measuring 2 cottahs 14 chattaks in plot no.126 as mentioned in the schedule of the complaint. The OP prepared an agreement for sale. The Complainants on good faith used to pay the due amount. The price of the B Schedule property was fixed at Rs.4,49,075/-. The total consideration money shall be paid by the Complainants in 60 equal monthly instalments amounting to Rs.5,239/- each.
The Complainants paid Rs.1,34,723/- out of Rs.4,49,075/- as earnest money. The last payment was made on 26/04/11 and at that time the OP made no whisper as to the alleged acquisition of land in question. The OP took a false plea and the Complainants served legal notice dated 25/06/11 upon the OP. The Complainants were informed by a Ld. Advocate for the OP that the Complainants might get the sale deed of the plot registered as per the draft deed handed over to them. But no draft deed was handed over to the Complainants. The delivery of the plot of land and the registration of the sale deed were deferred by the OP. The Complainants got another brochure in respect of the self-same project and found that the OP omitted the B Schedule plot from the brochure. The Complainants have enough reasons to believe that B group residential plot was certainly amalgamated with other plots of higher value and for that reason a false story of acquisition was made by the OP. There was deficiency in service on the part of the OP and, as such, the petition of complaint was filed.
The Learned Counsel for the Appellant/OP has submitted that as per agreement there were two parties, vendor and vendee and there was no stipulation as to the services to be rendered by the vendor.
It is contended that it was an agreement for sale simpliciter and the Complainant in no way hired any service from the OP/Appellant. It is contended that as per Clause-8 of the agreement a society will be formed by the vendor company for maintaining development of the common facilities and it was not the liability of the vendor to provide services. It is submitted that although the EMI was not completed within 9 months as stipulated in the agreement, the Appellant/OP did not cancel the agreement.
The Learned Counsel has referred to the decision reported in AIR 1966 Allahabad 156 [Bux Singh Vs. Joint Director of Consolidation, U.P. & Ors.]; III (1993) CPJ 281 (NC) [Krishan Baldev Gupta Vs. Haryana State Industrial Development Corporation & Anr.] wherein it was held that complaint filed relating to immovable property and the price chargeable was not a consumer complaint. The Learned Counsel has also referred to a decision reported in 2011 CTJ 365 (NC) [Sahara India Commercial Corporation Ltd. & Anr. Vs. C. Madhu Babu] wherein it was held that when there is a written agreement between the parties, the Consumer Forum has to consider rendering relief to the consumer in the light of such agreement; it was not open to them to add or subtract in all the conditions or words thereof.
The Learned Counsel for the Respondent, on the other hand, has submitted that the copy of the agreement was not served upon the Complainant and, as such, the Complainant had no scope to know that the EMI was to be completed within 9 months, but the last EMI also paid and it was accepted by the Complainant. It is contended that no document was filed to prove that the land was going to be acquired by the Government.
We have heard the submission made by both sides and perused the papers on record. It appears that the Complainant filed the petition of complaint with a copy of the agreement. It, therefore, cannot be said that the Complainant was not aware of the terms and conditions of the agreement. The main question that arises from the pleadings of the parties is that whether or not the Complainant can be said to be a consumer within the meaning of Section 2(1)(d) of the C. P. Act. The contention of the Learned Counsel for the Appellant is that it was a sale simpliciter and not an agreement for sale with conditions for rendering services. On perusal of the agreement in question dated 09/02/07 at Page-3 there appears a clause as follows:
THAT THE SAID VENDOR DURING THE INTERIM PERIOD UNDERTAKES TO DEVELOP THE LAND ALONG WITH ADJOINING PLOTS IN ALL RESPECTS BY PROVIDING ROAD, DRAIN, ELECTRICITY, DRINKING WATER AND OTHER AMENDITIES AS IN THE LAY OUT PLAN NO.M/10.
From the said clause in the agreement it is clear that there was a stipulation for development of the plot. In other words, the Complainants hired services of the OP/Appellant. The consideration money was paid, but the possession of the plot has neither been delivered nor the registration of the deed has been made.
No document has been filed by the Appellant that there was acquisition of land by the Government. It is also the specific contention of the Complainant/Respondent that with the false plea of acquisition the Appellant/OP wants to sell the land at higher price, thus depriving the Complainants of his lawful right to get the plot of land. Having heard the Learned Counsel for the parties and on perusal of the papers on record, we modify the impugned judgment as hereunder.
The appeal is allowed in part. The Appellant is directed to deliver possession of the plot of land as mentioned in the schedule of the petition of complaint and in the schedule of the agreement for sale and also to execute and register the deed of conveyance in favour of the Respondent/Complainant within 45 days from this date. The Appellant is directed to pay the compensation of Rs.25,000/- and litigation cost of Rs.3,000/- to the Respondent/Complainant within 45 days from this date failing which interest @ 9% p.a. shall accrue thereon from the date of filing of the petition of complaint till realisation. The impugned judgment stands modified accordingly.
MEMBER(L) PRESIDENT