MRS. SAMIKSHA BHATTACHARYA, MEMBER
This Appeal U/s 15 of C.P.Act., 1986 has been preferred by the Opposite Parties No. 1, 2 and 3 /Appellants against the order/judgment dated 15.9.2016 passed by ld. D.C.D.R.F., South 24 Parganas in Complaint Case No. 13 of 2015. In original Complaint Case the Opposite parties No. 1, 2 and 3 are the Appellants here and Complainants No. 1 and 2 are the Respondents No. 1 and 2 in this Appeal and OP No. 4 in the original Complaint Case is the Respondent No. 3 in the instant Appeal.
The brief facts of the case are the Appellant NO.1 /OP No.1 is a Developer Company and used to develop different nature of plots of land and they have decided to develop land under the brand name ‘Green Heaven Reality Pvt. Ltd.’ with several bighas of land lying and situated in mouza Sangur within P.S. Sonarpur, divided in various scheme of plots of land measuring an area 2,4,6 and 10 cottahs in each plot and developer has undertaken to execute the development works such as preparation , conversion and drawing suitable Plan etc. for necessary approval by the Competent Authority . In the year 2011 Respondents/Complainants were interested to purchase the plot of land to build their own house in the State of West Bengal. Accordingly, negotiation was going on and the Respondent no.1 paid Rs.94,000/- vide cheque No. 679477 dated 2.11.11 drawn on S.B.I. as 20% valuation of the Plot to the Appellant/OP company. The OP/Company acknowledged the same vide their letter 6.1.2012 and intimated the complainants that the plot being 4B110, in the Township project GREEN CITY SONARPUR, has been allotted. Thereafter, the complainants regularly paid instalments as per the terms of the OP/Company. Subsequently, the OP/Company entered into an Agreement for Sale date 23.4.2012 with the complainants at a total consideration of Rs.4,30,000/- in respect of the schedule land measuring about 4 cottahs being scheme plot No. 4B110 lying and situated at mouza Sangur , J.L. no.108, P.S. & Sub Registry office at Sonarpur , District South 24 Parganas . OPs agreed to take care of electricity, tap water, telephone, 20 ft. wide common passage adjacent to the said plot together with easement rights and appurtenance thereto. Complainants paid Rs.4,30,000/- in total through cheques by ways of EMIs as per terms of the OP Company. Thereafter, complainants visited several times the office of the OP Company with request to execute the Deed of conveyance in favour of the complainants but OPs did not take any necessary steps. In the month of April, 2014 the OPs came with another proposal that they had decided to modify their projects as plot with bunglow and asking for further payment towards additional cost. The complainants declined to such offer and asked for refund of their deposited amount with Bank interest along with compensation. On 09.05.2014 complainant No.1 met the OPs and clearly acknowledged that they were not interested in modified and revised project. On 11.5.2014 complainant no.1 sent an e-mail for refund of deposited amount of Rs.4,30,000/- along with interest and compensation. Thereafter, complainant sent several emails and OP No.4 (Respondent No. 3 in the present Appeal) assured them that he would place the complainants’ grievance in the Board of meeting for a suitable resolution. On 16.8.2014 OP NO.1 issued the letter with signature of OP No.4 intimated the complainants that they sent an amount of Rs.6,00,000/- through cheque being no.098879 dated 16.9.2014 drawn on ICICI Bank , Kasba branch. The cheque was issued by OP No.2 but the cheque was dishonoured with the remark insufficient fund. Thereafter, complainant no.1 served one legal notice U/s 138(b) read with Section 141 of N.I. Act 1881 through his ld. Advocate. Though the notice was served and delivered on 9.12.2014 Ops took no step.
Finding no other alternative complainant filed the consumer complaint before the Ld. District Forum, South 24 Paraganas.
The Ld. District Forum allowed the complaint case on contest against OP No. 1 and ex parte against rest of the OPs.
All the OPs jointly and/or severally are directed to refund Rs. 4,30,000/- along with interest @ 15% p.a. from the date of filing of the case that is on and from 13.01.2015 till its realiation to the complainants within 45 days from the date of this order along with compensation to the tune of Rs. 2,00,000/- and litigation cost of Rs. 25,000/- payble to the complainants within 45 days from the date of order, failing which further interest will carry @ 10% p.a. on the total awarded amount from the date of default till its realization.
Ld. Forum has also awarded punitive damage which is assessed at Rs. 2,00,000/- out of which Rs. 1,00,000/- will be deposited the Consumer Legal Aid Fund and Rs. 1,00,000/- will be given to the Complainants and that amount has also to be paid by the OPs jointly and/or severally within 45 days from the date of order.
Being aggrieved by and dissatisfied with the aforesaid order OPs 1, 2 and 3 filed the instant Appeal praying for setting aside the impugned order.
Ld. Advocate for the Appellant argued that the case is not maintainable since the subject matter is related with a land. In this connection Ld. Advocate cited one judgment passed by Hon’ble National Commission in 2017 (2) CPR 477 (NC). We have gone through the judgment passed by Hon’ble Commission and we find that the decision is not squarely applicable with the instant case. The case was cited by the Ld. Advocate is related with agricultural land. The present case is not related with the agricultural land to be sole to the Complainants. Here, the Complainants were interested to purchase a plot of land as to build their own house in the State of West Bengal. We have gone through the Agreement for sale dated 23.04.2012 signed between the OPs and the Complainants. Clause (3) of page (3) of Agreement for sale dated 23.04.2012 signed between the parties clearly states the development criteria of the project. In Clause (8) of page 7 of the Agreement says the development clause which clearly relates to a development project. In this connection, we rely upon paragraph 6 of the decision of the Hon’ble Apex Court in case of Ganesh Lal –Vs—Shyam (Civil Appeal No. 331 of 2007 decided on 26.09.2013). Paragraph 6 of the said order reads as follows:-
“6. It is submitted that failure to hand over possession of the land simpliciter cannot come within the jurisdiction of the District Consumer Forum, State Commission or National Commission. We quite see merit in this submission of Mr. Lambat, particularly having seen the definition of ‘deficiency’ as quoted above. We may, however, note that when it comes to ‘housing construction’, the same has been specifically covered under the definition of ‘service’ by amendment inserted by Act 50 of 1993 with effect from 18th June, 1993. On the other hand, where a sale of plot of land simpliciter is concerned, and if there is any complaint, the same would not be covered under the said Act.”
The observation of the Hon’ble Supreme Court indicates that if the Agreement for Sale is not a mere simpliciter and the same is attached with the condition of development of the project, certainly it cannot be termed as sale of plot of land simpliciter. In the instant case, it is quite apparent that the OP entered into the Agreement with the complainants to sell the plot of land with other necessary development works pertaining to the basic infrastructure. Therefore, the submission of Ld. Advocate for the OP has no force at all.
Therefore, the nature of transaction is covered by the expression “service” within the meaning of Section 2(1)(o) of CP Act, 1986 and the Complainants are the consumer as per definition u/s 2(1)(d) of this Act.
Ld. Lawyer for the Respondents submits that there is no irregularity in the judgment passed by the Ld. District Forum, so the order be affirmed by this Commission.
Based on the above discussion and on scrutiny of entire material on Record we find no ground to interfere with the well reasoned order of the Trial Forum for refunding the deposited amount by the OPs to the Complainants but we modify the rate of interest and the period of interest on the awarded sum of Rs. 4,30,000/-. We set aside the order of compensation of Rs. 2,00,000/- to be given by the OPs. We also set aside the order of punitive damage since there is no such prayer in the prayer clause of complaint petition.
Thus the impugned order is modified in the following manner:
All the OPs i.e, the Appellants and the Respondent No. 3 are jointly and/or severally directed to refund Rs. 4,30,000/- to the Complainants/Respondents No. 1 and 2 along with interest @ 10% p.a. from the date of last payment by the Complainants till its realization.
That all the OPs i.e, the Appellants and the Respondent No. 3 are also directed to pay litigation cost of Rs. 25,000/- to the Complainants.
The Appeal is disposed of in aforesaid manner.
