State Consumer Disputes Redressal Commission
Smt. Mahashweta Halder vs Apnidharti Developers Pvt. Ltd. on 27 December, 2021
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/921/2017 ( Date of Filing : 23 Aug 2017 ) (Arisen out of Order Dated 23/06/2017 in Case No. Complaint Case No. CC/266/2016 of District Kolkata-II(Central)) 1. Smt. Mahashweta Halder D/o- Lt. Dilip Kumar Bhattacharjee & W/o- Kanchan Halder, 6/B, 5th Phase, Adarsh Nagar, P.O.- Sonari, Jamshedpur, Jharkhand- 831011. 2. Sri Kanchan Halder S/o- Lt. Nalini Ranjan Halder,6/B, 5th Phase, Adarsh Nagar, P.O.- Sonari, Jamshedpur, Jharkhand- 831011. ...........Appellant(s) Versus 1. Apnidharti Developers Pvt. Ltd. Reality House, 59 Elliot Road, P.S.- Park Street, Kolkata-16. 2. Apnidharti Developers Pvt. Ltd. RTC House, 3rd Floor, 4 No. Dr.Suresh Sarkar Road, P.S.- Entally, Kolkata-14. ...........Respondent(s) BEFORE: HON'BLE MRS. SAMIKSHA BHATTACHARYA PRESIDING MEMBER PRESENT: Mr. Avijit Bhuina, Advocate for the Appellant 1 None appears ......for the Respondent Dated : 27 Dec 2021 Final Order / Judgement SAMIKSHA BHATTACHARYA, MEMBER
The instant appeal has been filed Under Section 15 of the CP Act, 1986 by Appellants/Complainants (hereinafter referred to as 'complainaints') against the judgment/final order dated 23.06.2017 passed by the erstwhile Ld. DCDRF (now the DCDR Commission), Kolkata , Unit II in Complaint Case No. CC/ 266/2016 where the Forum concerned while disposing of the said complaint case dismissed the petition of complaint exparte.
The facts of the case , in brief, are that after knowing from a local agent of the OPs/Respondents (hereinafter referred to as 'OPs') from the advertisement in daily newspaper the complainants were interested to purchase a plot of land of the project Join-149(Phase-II) at Joinpur, Sonarpur, South 24 Parganas from the OPs. The complainants on 17.04.2014 applied for purchasing the aforesaid plot of land measuring about 1080sq.ft. from the OPs and accordingly paid total consideration of Rs. 4,50,000/- to the OPs. Accordingly, an agreement of allotment was executed by the OPs in favour of the complainants on 17.04.2014 in respect of the said land under the project named as "Joinpur-149 (Phase-II)". The Complainants paid entire consideration and the OPs assured that the development works would be completed before execution and registration of the deed of conveyance. When the complainants asked regarding the status of the said project and also for certaindocuments relating toownership of the project, OPs avoided to handover those documents stating some unavoidable circumstances. Moreover, OPs demanded Rs. 45,360/- beyond agreement of allotment and the complainants were bound to pay the said amount on 08.08.2014. The complainants personally visited the office of the OPs requesting for some necessary documents and the OPs assured that those documents would be supplied within a short period but they did not supply those. The complainants made several telephonic conversations with OP to know the status of the project. Having no other option the complainants again visited the office of the OPs and OPs gave assurance that the project would be started very soon. In the month of December, 2015 when the complainants enquired personally about the status of the project by visiting the project site they found that no development of the project work took place till then. Then the complainants asked for cancellation of the allotment and demanded for refund of the amount paid by the them. In spite of the receipt of the aforesaid amount of Rs. 4,95,360/-, as per terms and condition of the same agreement dated 17.04.2014 OPs did not refund a single farthing nor offered any plot of land till date. Hence, the complainants filed the instant complaint before the Ld. DCDRF Kolkata Unit -II praying for a direction upon the OPs either to handover peaceful possession of land after development and to execute and registrar the deed of conveyance or to refund the amount of Rs. 4,95,360/- with interest @ 18% till payment along with Rs. 1,00,000/- as compensation and Rs. 50,000/- as litigation cost.
OPs did not appear in this case before the Ld. District Forum despite sending summons and subsequent newspaper publication and, therefore, the case was proceeded exparte against them.
The Ld. District Forum has observed that the complainant has filed the case relating to purchase of plot of land and the transaction is nothing but a transaction relating to sale simplicitor of land. The proposed sale of land or agreement for sale of land does not come within the purview of "service" as per CP Act or under goods as defined in Sale of Goods Act, 1830. Accordingly the case was dismissed exparte but on merit.
Being highly dissatisfied with and aggrieved by the aforesaid judgement/order passed by the Ld. District Commission the complainant filed the instant appeal before this Commission .
On the date of hearing of this appeal before this Commission none appeared on behalf of the Respondents. So the appeal was heard exparte.
Ld. Advocate of the complainants drew our attention by showing Clause 6, 10 and 11 of the Agreement of Allotment dated, 17.04.2014 entered between the complainant and OPs . In the said agreement OP is called as 'developer'. In the Clause 6 of the Agreement it is stated that 'Construction of road to reach the plots, landscaping and other necessary works pertaining to the basic infrastructure shall be completed within the period of payment of 24 installments.' In the Clause 10 it is stated that 'Physical possession of the scheduled below and will be handed over to the Allottee within 24 months from the date of issuing allotment.' In the Clause 11 it is written that the "Plot of land will be given by the developer for Residential purpose only. If any Allottee(s) want to use it for commercial purpose then he / she must submit application to take prior approval or permission from the company. The company may accept or reject any application at its sole discretion.' Therefore, the case is not related to sale of any plot of land, the said plot of land is to be sold after development and only for residential purpose as per Clause 12 which states that 'The Allottee can build up constructions of his / her / their own choice but exterior wall colour of constructions should be same and decided by the Company. After possession of common areas and facilities handed over to the Plot Owner Association and the same shall be undertaken by the company.' As per Allotment of Agreement complainants paid the full consideration amount of Rs. 4,50,000/-. Thereafter, complainants also paid Rs. 45,360/- by cheque on 08.08.2014. In support of his submission, Ld. Advocate for complainants filed the receipts to that effect. Ld. Advocate for the complainants has also submitted that the complainants are very much entitled to relief and he cited the judgment passed by Hon'ble National Commission passed in Sewa Ram vs Estate Officer, Huda reported in 1(2021)CPJ 220 (NC) where the case was related with the resumption of plot. Ld. Advocate for the complainant also cited judgement passed by Hon'ble National Commission in Jalandhar Improvement Trust & Anr. vs Jaswinder Singh Virdi where breach of agreement alleged and complainant prayed for refund of amount. The refund was directed along with interest @ 9% p.a. On perusal of entire materials on record and upon submission of Ld. Advocate of the complainants, we are in view that the case is not related to only plot of land. Where the development work is associated with the plot and the plot and in the Agreement Ops are called as 'Developer' and the plot is sold for residential purpose that subject matter is applicable in Consumer Forum. In the instant case complainant can be termed as 'consumer' and OPs can be termed as 'service provider'. In terms of Clause 6, 10, 11 and 12 of Agreement of Allotment neither any development work was done by the OPs nor they returned the amount taken from the complainants. The complainants entered into the Agreement with the OPs to fulfill their dream that they would use the land for residential purpose. The OPs kept themselves mum after taking the full amount from the complainants.As per Clause (4) of the Agreement, in case of non-payment of six consecutive installments, the allotment shall stand terminated and in that case also company shall refund the amount receipt from the Allottees deducting 30% of the paid amount within sixty days. In the instant case the complainants have paid the full amount but year after year the OPs neither deliver the possession of land after development work nor refunded the amount. I am in the view that the complainants cannot be made to wait indefinitely for the delivery of possession. OPs did not give any reply informing the complainants what prevented them to develop the land in question for so many years. Possession was not offered even after seven years after the date for which the possession ought to have been offered. So there is deficiency in service on the part of the OPs and as such they are bound to refund the amount along with interest. In the instant case OPs had taken the full amount but did not provide any service to the consumers/complainants. The Ld. District Commission has erred in its findings and since there is material irregularity the judgment of Ld. District Forum is liable to be set aside.
The appellants/complainants prayed in the petition of complaint for direction upon OPs to handover the peaceful possession after development and to execute and registrar the deed of conveyance of the plot of land in question or to refund the amount paid by them.
Ld. Advocate for the complainantshas submitted before this Commission that till date no development work was done by the OPs/Respondents and he prayed for refund of consideration amount along with interest and compensation . Therefore, I am in the view that it would be infractuous to direct the OPs/Respondents to handover the peaceful possession after development and to execute and registrar the deed of conveyance of the plot of land in favour of complainants. When the OPs are reluctant to develop the land for the reasons, best known to them, for so many years after receiving the full considerations from the complainants, it cannot be expected that they would develop the land and give the possession within a few days. Due to unchallenged testimony I am in the view that it would be wise to direct the OPs/Respondents to refund the amount with interest since a lumpsum amount of Rs. 4,50,000/- was paid by the complainants vide cheque dated 08.08.2014 and Rs. 45,360/- which was taken for service tax since OPs have not supplied any document to the complainants towards payments of service tax.
Therefore, the appeal is allowed exparte. OPs/Respondents are directed to refund the amount of Rs. 4,95,360/- to the appellants/complainants along with simple interest @ 6% p.a. from 08.08.2014 till the date of realization along with litigation cost of Rs.10,000/- within 45 days from the date of this order.
If the OPs/Respondents fail to comply with the aforesaid order within the stipulated period, the Complainants / Appellants are at liberty to put the decree into execution.
Thus the appeal is allowed and disposed of accordingly. [HON'BLE MRS. SAMIKSHA BHATTACHARYA] PRESIDING MEMBER