National Consumer Disputes Redressal
Unnayan Builders Pvt. Ltd. vs Nabhanil Mondal on 27 April, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 617 OF 2018 (Against the Order dated 06/03/2018 in Complaint No. 271/2015 of the State Commission West Bengal) 1. UNNAYAN BUILDERS PVT. LTD. 18/44 BALLYGUNGE PLACE (EAST) POLICE STATION GARIAHAT KOLKATA 700 019 WEST BENGAL ...........Appellant(s) Versus 1. NABHANIL MONDAL S/O. SHRI PRAFULLA KUMAR MONDAL A/9/166 KALYANI NADIA WEST BENGAL 741 235 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Appellant : Mohd. Adnan Ahmed, Advocate
Mr. Sujash Ghosh Dostidar, Advocate For the Respondent : NABHANIL MONDAL
Dated : 27 Apr 2018 ORDER
JUSTICE V.K. JAIN PRESIDING MEMBER (ORAL)
The appellant entered into an agreement with the complainant / respondent where-under it was to develop a plot of land and sell the same to the complainant / respondent for a total consideration of Rs.26 lakhs. The possession of the plot but for force majeure circumstances, was agreed to be delivered within 48 months from the execution of the agreement. The development work therefore should have been completed and the possession ought to have been delivered by 7.12.2014, when four years from the execution of the agreement expired. Since possession of the plot was not offered to him within the prescribed, the appellant / respondent sought cancellation of the transaction and refund of the amount paid by him, along with interest @ 10% per annum, in terms of Clause 22 of the agreement executed between the parties. The appellant informed the complainant that it could execute the conveyance deed of the plot in his favour or it could return the principal amount to him way of post-dated cheques. Being aggrieved, the complainant / respondent approached the concerned State Commission by way of a consumer complaint.
2. The complaint was resisted by the appellant who admitted the execution of the agreement as well as its having not completed the development and having not offered possession of the plot to the complainant within the prescribed time period.
3. The State Commission, vide its order dated 06.3.2018 directed the appellant to refund the amount received from the complainant, along with interest @ 10% per annum and cost of litigation quantified at Rs.10,000/-. Being aggrieved, the appellant is before this Commission by way of this Appeal.
4. It is submitted by the learned counsel for the appellant that in view of Clause 5(d) of the Schedule 1A, of the Stamp Act, as amended in the State of West Bengal, the same stamp duty was payable on the agreement as is payable on a conveyance deed. This is also his contention that since the requisite stamp duty was not paid, the State Commission ought to have impounded as per mandate of Section 33 of Stamp Duty Act. In support of contention, the learned counsel for the appellant relied upon the decision of Calcutta High Court in Chitra Ranjan Jana Vs. Arun Kumar Jana1999 2 Calcutta Law Journal 259 and decision of the Hon'ble Supreme Court in Avinash Kumar Chauhan Vs. Vijay Krishna Mishra, AIR 2009 SC 1489.
5. In my view, since all the facts relevant for the purpose of deciding the consumer complaint were admitted in the pleadings of the parties, I need no go into the question as to whether the agreement executed between the parties was adequately stamped or not. In my opinion, even if the aforesaid agreement is excluded from the consideration of being inadequately stamped, the complainant has been able to prove his case on the basis of the pleadings of the parties.
6. It is admitted case in the pleadings of the parties that the appellant had entered into a transaction with the respondent / complainant for developing plot and making the developed plot available to him for a consideration of Rs.26.00 lacs within a period of four years from the date on which the agreement was executed between the parties. The onus therefore was upon the appellant to prove either that it had developed the plot and offered its possession to the complainant within the stipulated time period or that the development could not completed on account of reasons beyond its control. I have perused the written version field by the appellant before the State Commission. The ground taken in the written version was that several plot buyers had failed to make payment to the appellant in time. In my view, if other plot buyers had failed to honour their commitment that the appellant, that could not have been a ground for not completing the development of the plot, subject matter of the agreement with the complainant. The appellant ought to have arranged finances from the alternative sources and completed the development work. It could have cancelled the allotment made to the other plot buyers on account of their failure to pay the agreed sale consideration and then disposed of those plots to other prospective buyers. But the complainant cannot be made to suffer without there being any default on his part.
7. It was also not disputed in the written version filed by the appellant before the State Commission that in terms of the Agreement, it was required to refund the amount received by it from the complainant along with 10% interest. Therefore, the order passed by the State Commission does not call for any interference by this Commission in exercise of its appellate jurisdiction. The appeal being devoid of any merits is hereby dismissed with no order as to costs.
......................J V.K. JAIN PRESIDING MEMBER