Date of filing :11.5.2018
Judgment : Dt.31.12.2019
Mrs. Sashi Kala Basu, Hon’ble President
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Lopamudra Mondal alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) ABS Land Development and Construction Pvt. Ltd.
Case of the Complainant, in short, is that she booked a plot being plot No.A89 measuring 1440 sq.ft. in the project namely Baruipur Enclave on 30.3.2011, paying the initial booking amount of Rs.68,000/- to the OP. OP issued the allotment letter in favour of the Complainant and an agreement was also executed between the parties on 30.5.2011, whereby OP agreed to sell the plot as described in the schedule B of the agreement at a consideration of Rs.3,40,000/- and deliver the possession after its development within three years from the date of agreement. Complainant h as paid the entire sum of Rs.3,40,000/-. But the OP Company has failed to execute the sale deed in favour of the Complainant. On physical inspection of the site, it was noticed that no remarkable development of the project was done. So, Complainant wrote a letter to the OP on 9.7.2016 to refund the sum along with interest @ 9%. But, no such payment has been made. Thereafter a demand notice has also been sent on 9.7.2016 and in response to the said notice OP assured that by January, 2017 the plot would be demarcated and handed over, but all in vain. So, the present complaint has been filed by the Complainant praying for directing the OP to pay the sum of Rs.3,40,000/- along with interest @ 12%, to pay compensation of Rs.3,00,000/- and litigation cost of Rs.20,000/-.
Complainant has annexed with the complaint petition, copy of the allotment letter dt.20.8.2011, copy of statement showing payment of sum of Rs.3,40,000/- by cheque, copy of the letter dt.17.8.2015, notice dt.9.7.2016 and the reply by the OP dt.22.10.2016.
OPs have contested the case by filing written version contending inter alia that the OPs have already demarcated and physically handed over the said plot after its development as agreed. It is the Complainant himself who has taken no step for registration of the deed of sale. So, the OPs have prayed for dismissal of the case with exemplary cost.
During the course of the evidence parties adduced their respective evidence followed by filing questionnaire and reply thereto. Ultimately argument has also been advanced.
So, the following points require determination :-
- Whether there is any deficiency in service on the part of the OP?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Both the points are taken up together for a comprehensive discussion.
Complainant has claimed that she booked the plot in the project namely Baruipur Enclave and an agreement was also executed between the parties on 30.5.2012. Complainant has filed the said agreement wherefrom it appears that the OP agreed to sale the plot described in the B schedule of the agreement, after its development, at a total consideration of Rs.3,40,000/- and agreed to complete the development work within the month of December, 2015. Complainant has also filed the receipts showing payment of the entire consideration price.
On perusal of the written version filed by the OP, it appears that the execution of the agreement and the payment by the Complainant, has not been disputed and denied. The only contention which has been raised by the OP is that they have already physically handed over the said plot to the Complainant after its development and demarcation. It is contended that it is the Complainant himself who did not take any step to register the deed of sale in his favour. But in support of their claim that the said plot has already been demarcated and physically handed over, no document has been filed by the OP. Barring a bare statement in the written version, neither any document of such handing over has been filed nor any date of alleged handing over of such possession has been stated. So, in the absence of any document, contention of the OP that the possession has already been handed over cannot be accepted and the same is nothing but a subsequent development and an after thought. In such a situation, as neither the plot has been handed over and registered in favour of the Complainant, nor the money has been refunded to the Complainant, she is entitled to the relief as prayed. So, the Complainant is entitled to refund of the said sum of Rs.3,40,000/- along with interest @ 12% (in the form of compensation).
Hence
ordered
CC/246/2018 is allowed on contest. OP is directed to pay the sum of Rs.3,40,000/- to the Complainant along with interest on the said sum @ 12% p.a. from the date of last payment to till this date within two months from the date of this order. OP is further directed to pay litigation cost of Rs.12,000/- within aforesaid period of two months, in default the entire sum shall carry interest @ 12% till realization.
