Order-17.

Date-10/08/2016.

This is an application u/s.12 of the C.P. Act, 1986.

          Complainant’s case in short is that the OP is developer/contractor.  The complainant booked a residential plot of land measuring about 3 cottahs more or less including development of basic infrastructures under the upcoming project of the OP being Unnayan Garden B being Plot No. B 310 at a consideration of Rs.16,50,000/- an agreement of allotment was also executed on 06-09-2010 in between the parties.  The complainant paid a sum of Rs.3,30,000/- as per the said agreement on 06-09-2010 and Rs.200/- for processing fee.  It was stipulated that the OP would hand over the residential plot within 48 months from the date of agreement.  The complainant also continued to pay instalment  at the rate of27,500/- per month to the OP.  The complainant has already paid a sum of Rs.9,35,000/- on several dates for which the OP also issued money receipts.  The complainant out of curiosity visited the project on 20-01-2016 and found that OP has not developed anything and the said project development has not been started also.  The complainant submits that the complainant and thousands of people have become prey in the hands of the OP.  It is alleged that no infrastructural development had taken place till date.  The complainant, therefore, has prayed before the Forum for refund of money along with other reliefs.

          OP has contested the case in filing written version contending, inter alia, that the present case is not maintainable in law and in fact and is liable to be dismissed.  It is stated that the complainant being satisfied with the title of OP over the said land in question booked the said plot no.B 300 and the consideration price was fixed at Rs.16,50,000/- being Rs.5,50,000/- per cottah.  It was agreed by the parties that at or before the signing of the application for allotment the complainant would pay 20 percent of the price of land and remaining consideration of the land would be paid by 48 equal monthly instalments.  It was also agreed that if there is any delay in payment the complainant would be liable to pay interest for the period of delay  at the rate of10 percent p.a.  It was also agreed by the parties that in case the allotment is cancelled either due to non-payment of instalment or on the application of the allottee the OP would refund 75 percent of the amount paid by her towards consideration.  It is alleged that the complainant has miserably failed to make payment of the monthly instalments and 22^nd instalment was paid on 20-01-2016 i.e. after 6 years.  However, on the request of the complainant the allotment was not cancelled.  The company has also informed that the complainant vide letter dated 07-10-2013 to make payment of outstanding EMIs and failing to pay the EMIs in time would cause delay in completing the project work.  This OP has prayed for dismissal of the case.

Point for Decision

1. Whether the OP is deficient in rendering service to the complainant in the matter of handing over the residential plot in question?
2. Whether the OP is guilty of unfair trade practice?
3. Whether the complainant is entitled to get the relief as prayed for?

Decision with Reasons

We have travelled over the documents on record namely offer letter, agreement of allotment dated 06-09-2010, money receipts in respect of EMIs as filed from the side of the complainant.  In terms of Clause 12 of the agreement it is stipulated that the OP developer shall complete all necessary works of the said land within 48 months from the date of execution of the said agreement dated 06-09-2010.  So, the OP developer is liable to develop the plot by 05-09-2014.  From the photographs filed from the side of the complainant, it appears that no work of development has been taken by the OP developer.  The complainant, as we find, from the money receipts paid a sum of Rs.9,35,000/- out of total consideration of Rs.16,50,000/-.  The complainant has stated that he agreed to pay the balance amount if the plot being developed handed over to the complainant.  But we find that no sort of development is initiated by the OP developer in respect of the project.  It is argued from the side of the OP developer that the said agreement stipulated several penal actions in case of default of payment.  We think that the agreement is bilateral.  The developer cannot expect to impose penal action when the developer has not developed the plot of land.  It appears that the OP developer has received Rs.9,35,000/- but has failed to make any development of the project.  It appears that the OP has used the aforesaid amount for its own purpose without investing the same for infrastructural development and no infrastructural development has taken place in respect of the project in question till date.  It appears that the upcoming project remains a fantasy on paper.  We think that OP developer is guilty of unfair trade practice.  OP developer was supposed to develop the plot by 05-09-2014 but has not developed any infrastructure.  We are constrained to hold that the OP developer has set up a gesture of unfair trade practice apart from establishing a bad example of deficiency of service.  We think that complainant is entitled to get the relief as prayed for.

In result, the case succeeds.

Hence,

Ordered

That the instant case be and the same is allowed on contest against the OP.

          OP is directed to refund the entire amount of Rs.9,35,000/- along with interest  at the rate of9 percent p.a. w.e.f. 06-09-2010 within 30 days from the date of this order.

          OP is also directed to pay an amount of Rs.50,000/- as compensation for prolonged harassment and mental agony caused to the complainant within the said stipulated period.

          OP is also directed to pay penalty of Rs.50,000/- to be paid to this Forum for unfair trade practice within the stipulated period.

Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act.