HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. The present appeal has been filed under section 41 of the Consumer Protection Act, 2019 (in short, 'the Act') against the order dated 13.03.2020 passed by the Learned District Consumer Disputes Redressal Commission, Kolkata, Unit-III (South) (in short, 'the District Commission) in connection with consumer case No. CC/666/2017, whereby the District Commission allowed the complaint filed by the complainant.  

2. The complaint case in short is that the complainant booked a plot of land being plot No. SO 119 in Sunlight City Abasan Housing Project proposed to be constructed by the opposite party No. 1 as Managing Director of opposite party No. 2 at a total consideration price of Rs.3,12,500/-. The complainant has paid a total sum of Rs.1,45,000/- out of the said total consideration price to the opposite party No. 1. An agreement for sale was also executed between the parties. But inspite of making such payment, it was noticed by the complainant on visiting the site that no work of development of the said project was carried out. On being approached by the complainant, the opposite parties avoided meeting him or receiving his phone calls. The opposite parties have left abandoned the project. So, the complainant sent a notice dated 08.05.2017 to the opposite party No. 1 through his Learned Advocate claiming refund of the sum paid by him. But as no payment was made, present complaint has been filed by the complainant praying for directing the opposite parties to refund the amount of Rs.1,45,000/- paid by the complainant with interest @18% per annum, to pay sum of Rs.3,00,000/- as compensation and Rs.50,000/- as litigation cost.

3. The opposite parties resisted the complaint.  The opposite parties in their written version stated that no agreement for sale was ratified by and between the complainant and the opposite parties.  The Commission has no jurisdiction to entertain the case as the same is simplicitor sale of land and so, to enforce the agreement for sale, suit for specific  performance will lie before the Competent Civil Court. It is also contended that the said agreement for sale is in a non-judicial stamp paper of Rs.10/- and thus cannot be enforced for specific performance. Thus opposite parties have prayed for dismissal of the case.

4. On the basis of evidence and record, the District Commission allowed the complaint of the complainant. 

5. Being aggrieved by and dissatisfied with the impugned order the opposite parties/ appellants have filed the present appeal.

6. Heard the Learned Counsel for both the parties.  

7. Perused the impugned order, memo of appeal and the documents.  

8. Learned Counsel for the appellants has submitted that the Learned District Commission below passed the impugned order without considering that the respondent has violated the specific terms and conditions of the agreement for sale executed between the parties on 02.03.2016. 

9. He has further submitted that the Learned District Commission below erred in directing the appellants / opposite parties to refund the sum of Rs.1,45,000/- (Rupees one lakh and forty-five thousand only) to the complainant within two months from the date of passing of the order, and in default, the amount shall carry interest @ 12% per annum. In addition, the appellants/ opposite parties have been directed to pay Rs.12,000/- (Rupees twelve thousand only) towards litigation cost within that period. In default, that amount shall carry interest @ 12% per annum till realization. 

10. The Learned District Commission should have considered that the complainant/ respondent from his own volition choose to cancel and / or not to purchase the plot. For that reason, 30% of his booking amount should be deducted.  Therefore, the Learned Advocate appearing for the appellants has prayed for dismissal of the complaint case. 

11. On the other hand, the arguments on behalf of the respondent / complainant are that the Learned District Commission below rightly passed the judgment on relying upon the complaint petition with Annexures, written version, evidences, questionnaires and replies filed by the parties.  

12. He has further urged that the Learned District Commission below has rightly considered the specific terms and conditions of the agreement for sale. Therefore, the Learned Advocate appearing for the respondent has prayed for dismissal of the instant appeal with costs. 

13. Having heard the Learned Advocate appearing for the parties and on perusal of the petition of complaint with Annexures, written version, evidences, questionnaires and replies filed by the parties.  I find that it is an admitted position that the complainant booked a plot of land being plot No. SO 119 in Sunlight City Abasan Housing Project proposed to be constructed by the appellant No. 1 as the Managing Director of the appellant No. 2 at a total consideration price of Rs. 3,12,500/- ( Rupees three lakh twelve thousand and five hundred only). It is also an admitted position that the complainant has paid a total sum of Rs. 1,40,000/-  ( Rupees one lakh and forty thousand only) out of the said total consideration price to the appellant No. 1. It is also an admitted position that an agreement for sale was also executed  between the parties.  

14. Now , I shall have to consider as to whether there has been any deficiency in service on the part of the opposite parties. 

15. The overwhelming evidence on record makes it abundantly clear that in spite of making payment by the respondent to the appellant it was noticed by the complainants on visiting the site that no work of development of the said project was carried out.  On being approached by the complainant, the opposite parties avoided meeting him or receiving his phone calls. The opposite parties have left abandoned the project.  The complainants sent a notice dated 08.05.2017 to the appellant No. 1 through his Learned Advocate claiming refund of the sum paid by him. But no payment was made by the appellants.

16. Copy of application for booking discloses that the complainant booked a plot of land being plot No. SO 119 in Sunlight City Abasan Housing Project to be constructed by the appellants.  

17. The said agreement also discloses that the complainant had already paid a sum of Rs. 1,35,000/- out of total consideration of Rs.3,12,500/- . The said agreement also discloses that Samir Naskar who is the appellant No. 1 in this case signed in the agreement as Managing Director of the appellant No. 2.  Therefore, the said agreement proves that the company was represented by its Managing Director.  

18. The evidence on record and the above mentioned documents clearly proves that the terms and conditions as mentioned in the agreement clearly indicates that the complainant hired service of the opposite parties to develop the said plot and thus the contention of the opposite parties that it was a simplicitor sale of land cannot be accepted. 

19. The opposite parties have failed to prove by evidence as well as by documents that they have carried out any work towards the development of the said project.  Rather the respondent has proved by evidence that the appellants have abandoned the project and no work has been done towards the development.  

20. Under this facts and circumstances it may be concluded that in absence of any document filed by the appellants the case of the complainant cannot be disbelieved that the said project has been left and abandoned by the opposite parties is well established.  

21. Under this facts and circumstances and on consideration of the evidence and the materials on record I hold that the impugned order dated 13.03.2020 passed by the Learned District Commission below in connection with CC/666/2017 calls for no interference by this Commission, and, as such, it is liable to be affirmed and the appeal is also liable to be dismissed.  

22. In the result, the appeal be and the same is dismissed. There will be no order as to costs.  

23. Let a copy of this order be sent to the Learned District Commission below for their information.  

24. Office to comply.