SAMIKSHA BHATTAHCARYA, MEMBER

The instant  Appeal has been directed  by the appellant against the order dated 16.07.2019 in complaint case No. CC.101/2019 passed by the Ld. District Commission, Kolkata, Unit-II (Central).

It appears from the record that the petition for condonation of delay has not been disposed of till date. Therefore, on the date of  final hearing, first of all, the petition  for condonation of delay was taken up for hearing. The cause shown for delay in filing  the instant appeal by the appellant  has been explained properly.

Therefore, the delay in filing the instant appeal is hereby condoned.

The facts of the case, in brief, are that the respondent/complainant (hereinafter referred to  as  the ‘complainant’) is the allottee of a residential  plot of land at Mouja  Kulberia.  The appellant/OP (hereinafter  referred to as the ‘OP’)  the company  represented  by  its  Managing Director. The OP is  a builder/developer   for selling plots of land at Mouja - Kulberia under Police Station  -  Kolkata  Leather Complex, District 24 Parganas (south). By way of advertisement in website as well as  publication and brochure the OP was selling of plots of land for construction of individual residential houses/bungalows under the Scheme Plan namely ‘Unnayan Garden-B’ lying and situated at Mouja - Kulberia at Bhangor in the District at South 24 Parganas.  Being allured by such advertisement, the complainant booked one plot of land measuring 3  cottahs  @ Rs.5,00,000/-  per  cottah at a total price of  Rs.15,00,000/- and paid a sum of Rs.3,00,000/- being  20% of total value of the land as booking money by two  cheques  @ Rs.1,50,000/- each drawn on ICICI Bank, Kolkata. The cheques were duly received and  encashed  by the OP. Thereafter, the OP entered into an Agreement of Allotment  with the complainant on 13.10.2009 for sale of one plot of land being No.  B-183  measuring 3 cottahs of land  at a  total price of 15,00,000/- under the project namely  ‘Unnayan-B’ within the Dag No. 674 Khatian No. 1954 under JL No. 7  Police Station KLC (South 24 Parganas). The agreement of   allotment was signed by the Managing Director on behalf of the OP/company and the complainant. The  complainant paid the  booking money and  all EMIs for the plot of land in question on the basis of this  agreement. The OP, in  their advertisement as well  as in their brochure, has represented  falsely that their project is  located in the prime  land with all modern facilities  through pictures showing multi-storied building and beautiful  bungalows. The OP allured the complainant that the said plot of land at Mouja  Kulberia, after development of basic infrastructure i.e.,  construction  of metal road to  reach the  plot along with the side drain,  other necessary works showing the basic infrastructure and other modern amenities, would be ideal and lucrative spot. Being allured  with such false assurance the complainant entered into the said agreement of allotment   with the OP.  The plot  was substantially water body  oriented   area  or an agricultural area as per the East Wetland (Conservation and Management) Act, 2006. After  payment of Rs.3,00,000/-  the complainant  further paid 42 EMIs @ Rs.25,000/-  each i.e.,  Rs.10,50,000/- by  A/c  Payee cheques drawn on ICICI Bank, Kolkata. Therefore, the total amount paid by the complainant  is   Rs.13,50,000/-. By a letter dated 04.09.2013, the OP addressed the complainant  apologizing  for the delay of  development of the plot in  question and   assured the complainant that the company had fixed the time for completion  of the project by December, 2015. The OP  advised the complainant to pay EMIs regularly to enable them to complete the said project. The complainant in good  faith paid  the EMIs till 29.09.2015. When  the complainant visited the  spot he found that no development work had been done. He was further  advised by the OP that the project would be completed  very soon . But the complainant was  compelled to stop paying remaining six EMIs. Then complainant waited for some time and visited the  site several times during 2018 and found that development work had not been done. It was the  term of the Agreement that  the OP would handover the possession of the plot to the complainant within four years from the date of agreement i.e.,  within October 2013. The complainant  has further  stated in his petition that the  OP is fully aware of the fact that the   East Kolkata wetland is one of the Ramsar designated wetland  and the company would not be able to obtain permission   from the respective authority to  construct any permanent structure on the land in question.  The agreement   for allotment dated 13.10.2009 was drafted by the OP in such a manner as to befool the intending purchasers by  means of false and misleading representation  mentioning  in Page No. 2 Paragraph No. 4, Page No. 3 Clause No. 11, Page No. 4 Clause No. 20, Page No. 4 Clause No. 21,  and in the  schedule mentioned in the Page No. 5 of the said Agreement. The complainant has further stated  that for the abovementioned clauses it reveals that OP is negligent, deficient in service and  the OP has adopted unfair trade practice  causing tremendous mental agony  and harassment to the complainant. The complainant is debarred  from  owning  a plot of land  for construction of a house for residential purpose of himself and  his family members.

Finding no other alternatives, the complainant has filed a complaint case  being No. CC/136/2019 before this Commission. But this  Commission has observed that  the application of the complainant lacks pecuniary jurisdiction. Then the Ld. Counsel for the complainant not pressed the petition of complaint.  However, this Commission has passed the order that this  order will not debar the complainant to approach the appropriate Forum in accordance with  the scheme of the Act. Thereafter,  the complainant filed the complaint case before the  concerned Ld. District Commission praying for direction upon  OP to provide a bastu land measuring 3 cottahs in place of allotted plot No. B-183 as per advertisement. The  complainant has further prayed for  direction     upon OP to refund paid  amount of Rs.13,50,000/- along with   interest @ 6%  p.a. as per Clause no. 21 of the Agreement  and  the compensation of  Rs.2,50,000/-.

Despite service of  notice the OP did not turn up before the Ld. District Commission and the  case was proceeded ex parte against the OP.  The Ld. District Commission  allowed the complaint case with the following directions:

“That the complaint case be and the same is allowed in part ex parte against the OP with litigation cost of Rs.5,000/- (Rupees Five thousand) only.

OP is directed to refund ofRs.13,50,000/- (Rupees Thirteen lakhs Fifty Thousand) only along with compensation  in the  form of interest thereon @ 6% per annum from the date of the payments   till its realization within 45 days from the date of  order along with litigation cost.

Liberty be given to the complainant to put the order in execution, if the OP transgresses to comply  the order.”

Being  aggrieved  by and dissatisfied with  such order, appellant has filed the instant appeal. Ld.  Advocate for the appellant has admitted that  according to the agreement the  value of  the land was  Rs.15,00,000/- and the allottee ought to have paid 20%  of the total value as booking money and  rest  amount by 48 equal EMIs. The Ld. Advocate for the OP has also admitted that  the  complainant has paid initial 20% i.e., Rs.3,00,000/-. The Ld. Advocate for the  OP has  further submitted that complainant has also paid  42 EMIs regularly. But after paying 42 installments, the  complainant  has  not paid any installment.  As per Clause No. 4 of the said agreement, the company will develop the land on  behalf of the allottee after completion of 48 installments.

 In the instant case, the complainant has not paid  48 installments, therefore, he cannot claim  anything for deficiency in rendering  service. Therefore, the impugned order is  bad  and the  same should be  set aside. As per Clause No.4 of the agreement, the complainant  should  have paid all  EMIs and as per Clause 8 of the agreement it is   mentioned that for non-payment  by the allottee, the company will  refund after deducting 25%  amount paid by the allottee.                                      

The Ld. Advocate for the Complainant  has submitted before this Commission that  the instant appeal is not maintainable  in law or in facts. So it is void ab initio . The argument on behalf of the OP in regard to Clause No. 26 of  the agreement that ‘ all disputes and /or differences whatsoever arising between the parties shall be referred to the sole arbitration of an Arbitral Tribunal appointed by the Managing Director of the Company whose decision shall be final and binding on the parties’ is not tenable.  The OP  in similar case made a revisional application before the Hon’ble High Court at Calcutta for an arbitral proceeding being Case No. 36 of 2015 between Unnayan Developers Pvt. Ltd. Vs. Bibartan Sen wherein the  Hon’ble Court  dismissed  the application vide its order dated 09.01.2015 stating  “The Court, therefore, does not find that  the Revisional Application is entertainable despite the existence of an alternative remedy and the same is hereby dismissed.”

The OP vide their letter dated 04.09.2013 apologized to the complainant for delay of development of the plot in question which is annexed with the complaint petition as well as with the memo of appeal. Therefore the  Ld. Advocate for the complainant prays  for dismissal of the  memo of appeal with exemplary cost.

The Ld. Advocate for the complainant cited the judgement passed by Hon’ble  Supreme Court in Kolkata West International City Pvt. Ltd. vs Devasis Rudra  has observed that “The Purchaser cannot be made to  wait indefinitely for  delivery of possession.” The Ld. Advocate for the complainant also cited the judgement passed by Hon’ble  National Commission in FA No. 617 of 2018 (Unnayan Builders Pvt. Ltd. vs. Nabhanil Mondal) where the Hon,ble National Commission has observed 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 for 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 be completed on account of reasons beyond its control.”

Upon hearing the parties and on perusal of the record, it appears that  there is no dispute that the complainant and  OP entered into Allotment of Agreement for purchasing the plot in question on 13.10.2009 . There is also no dispute that the complainant paid Rs. 3,00,000/- i.e.,  20% of total value of the land as booking money to the OP. Thereafter  complainant paid  42 EMIs @ 25,000/- p.m. i.e. Rs/ 10,50,000/-.  The OP has admitted that complainant paid Rs. 13,50,000/- in total.

The only argument on behalf of the OP is that the complainant is defaulter since he has not paid last 6 EMIs. Moreover he has pointed out  that as per Clause No. 8the OP is  liable to refund the amount after deducting 25% of the paid amount by the complainant.

Now we have to consider whether the OP will refund the amount after deducting 25% deposited amount or the deposited amount along with interest. As per agreement the possession would be delivered to the purchaser/complainant within 4 years  from the date of  Agreement i.e. within 13.10.2013 . Moreover, by their letter dated 04.09.2013 OP informed the complainant  that they apologized for delay and fixed the time for completion of the project by December, 2015. But, when the complainant  visited the site in the year 2018, the complainant noticed that  no development was started at all.  The Agreement of Allotment was signed on 13.10.2009 The Consumer Case was filed in the year 2019 before the Ld. DCDRC. It is now 2023 and the OP  has not completed the project till date. In the course of hearing Ld. Advocate for the OP has submitted with all fairness that  they would refund the deposited amount to the complainant but he has prayed for waiving the interest.  The complainant has deposited the amount  from 22.09.2009 till  26.06.2015with a hope to get the plot/bungalow of land for residential purpose. The amount of Rs. 13,50,000/- has been retained by the OP for so many years.  The argument on behalf of OP that the complainant has not paid the last six EMIs cannot be acceptable since the OP has not sent any demand notice to the complainant charging interest @ 18% p.a. for the period of delay as per Clause No.4 (internal Page 2) of the Agreement of Allotment.   As per Clause No.7, OP has to issue reminder notice to the allottee asking him to make the payment with interest.  But the OP has not sent any reminder.  Therefore, the plea taken by OP that the complainant is defaulter in respect of payment of only six EMIs by the complainant is nothing but afterthought.  The OP has not shown any cogent reason that why they have failed to start the project work till date.  The Agreement is a bilateral agreement.  Therefore, both parties are binding upon the terms and conditions of the agreement.  But in the case in hand, the OP has cited the clause for non-payment of six EMIs whereas the OP has not fulfilled their task at all.  As per Clause No.21, if the company fails to complete the project within the stipulated time, the allottee may take refund of full money paid by him.  As per Clause No.11, the company shall develop the said land on behalf of allottee with construction of metal road to reach the plots of land along with side drains & other necessary works pertaining to the basic infrastructure, which shall be completed within the period of payment of 48 installments. As per Clause No.12, unless prevented by force majeure clause, the company shall ensure to complete all necessary works of the said land within 48 months from the date of execution of the Agreement.  The OP has not showed any force majeure clause which prevented them to complete the construction work.

 The OP has not disclosed any reason which prevented them to complete the project within the stipulated time.  Rather, it may be specially said that  no development work has been started till date. As per agreement OP was bound to deliver the possession of the plot within 4 years from the date execution  of agreement for allotment. Therefore, we find deficiency of service and unfair trade practice on the part of the OP.  As per Clause 21 of the agreement for allotment it is specifically mentioned that in the event of failing to complete the project by the company within the stipulated time  the alottee may take  refund of all money paid by him/her towards price of the land with interest @ 6% p.a. The Ld. DCDRC has passed the order following the Clause No. 21 of the agreement for allotment. The Ld. DCDRC has rightly observed that the complainant can not be suffered without being any default on his part. Therefore, we think  there is no scope to interfere with the judgement passed by the Ld. DCDRC concerned.

We find no error apparent, either in law or in fact, in the impugned order , warranting appellate jurisdiction.

The impugned order passed by the Ld. DCDRC, Kolkata unit II (central) is hereby affirmed.

In view of above, the appeal is dismissed  on contest.

There is no order as to cost.

The appeal is disposed of accordingly.