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Bibhas Chandra Guha v/s Desire Agro Resorts Development Pvt. Ltd.

    First Appeal No. 856 of 2014

    Decided On, 23 November 2016

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY
    By, PRESIDING MEMBER & THE HONOURABLE MRS. MRIDULA ROY
    By, MEMBER

    For the Appellant: Priyankar Deb Sarkar, Sibajisankar Dhar, Priyanka Das, Advocates. For the Respondent: Saikat Mali, Advocate.



Judgment Text

Samaresh Prasad Chowdhury, Presiding Member

Challenge in this appeal u/s 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of Complainant Sri Bibhas Chandra Guha to impeach the Order no.7 dated 11.07.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-I (for short, Ld. District Forum) in Consumer Complaint no.618/2013 whereby the consumer complaint initiated by the Appellant under Section 12 of the Act was dismissed simply on the ground that the copy of Agreement for Sale between the parties dated 09.09.2004 does not contain the signature of purchaser/Appellant and signature of witnesses.

The Appellant herein being Complainant lodged the complaint asserting that in response to an advertisement made by the Opposite Party to develop the property, he offered to purchase one plot of land being Plot no.80 in the project named and styled ‘Dakshianayan’, Type-‘A’ having an area of 2 cottahs measuring about 1440 sq. ft. approximately at a consideration of Rs.1,30,000/-, being Rs.78,000/- for the price of plot of land and Rs.52,000/- for development fees. Accordingly, Complainant paid Rs.26,000/- by cheque to the OP/developer and it was agreed that the balance amount would be paid by way of 36 equated monthly instalments of Rs.2,888/-. On 09.09.2004 a formal agreement was executed and the Complainant at regular interval paid the instalments and ultimately paid the full and final consideration amount on 14.07.2007. Thereafter, the OP has caused unnecessarily delay in handing over the plot in question for which sometimes in July, 2010 the Complainant visited the office of the OP and had made an application for refund of price of land on 23.07.2010 and the OP initially giving dates for refund but subsequently stopped receiving calls of the Complainant. Hence, the Appellant approached the Ld. District Forum with prayer for – (a) refund of Rs.1,30,000/-; (b) an interest thereon @ 9% p.a. from 14.07.2007 till its realisation; (c) compensation of Rs.1,00,000/- for harassment and mental agony; (d) litigation cost of Rs.50,000/- etc.

After entering appearance, the OP filed an application challenging the maintainability of the proceeding on the ground that the instant dispute with regard to sell of plot of land and as such the Complainant cannot be termed as ‘consumer’. It has also been stated that as prayer for refund of money against surrender of plot of land has been made, the complaint is not amenable before a Consumer Forum.

After hearing both sides, the Ld. District Forum allowed the said application filed by the OP challenging the maintainability of the proceeding on the ground as indicated above, which prompted the Complainant to prefer this appeal.

We have considered the rival contention of the parties and scrutinised the materials on record.

Upon hearing the Ld. Advocate appearing for the parties and on going through the materials on record, it would reveal that on 09.09.2004 the Appellant had entered in to agreement with the developer i.e. Desire Agro Resorts Development Pvt. Ltd. in order to purchase one plot of land in the project named and styled ‘Dakshianayan’, Plot no.80, Type-‘A’ having an area of 2 cottahs measuring about 1440 sq. ft. approximately at a consideration of Rs.1,30,000/-, being Rs.78,000/- for the price of plot of land and Rs.52,000/- for development fees. On the date of agreement, the Complainant has paid a sum of Rs.26,000/- by way of cheque drawn on State Bank of India. In the Deed of Agreement, it was stipulated that the balance amount will be paid in equal monthly instalment of Rs.2,889/- for 36 months. The documents annexed with the Memorandum of Appeal clearly goes to show that the Complainant was punctual in payment of instalment and paid the entire consideration amount of Rs.1,30,000/- by 14.07.2007. In the Agreement, it was agreed that on payment of the entire amount, the land will be developed and handed over to the purchaser and proper Deed of Conveyance will be executed. Inspite of receipt of entire amount by 14.07.2007, the developer did not take any step to handover the subject property to the Complainant. Ultimately, being frustrated about the conduct of the OP/developer, being a pensioner, the Complainant had to approach the OP/developer on 23.07.2010 with a prayer for refund of amount paid by him as the marriage ceremony of his daughter was knocking at the door.

The OP/developer in their application has specifically mentioned that their Dakshinayan Project has been abandoned due to imposition of restriction stipulated by the Government and the local authorities and also for some legal impediment.

Therefore, it is quite clear that inspite of receipt of entire consideration amount, the OP/developer could not handover the land in question to the Complainant and also did not take any pain to refund the amount and on the contrary when the Complainant has approached the Ld. District Forum with prayer for reliefs, the developer has challenged the maintainability of the proceeding. The Ld. District Forum has passed the order in a casual and cryptic manner simply on the ground that Agreement in question does not bear the signature of purchaser and the attesting witnesses. Even if we do not consider the said agreement, the overwhelming documents including the offer letter etc. and the payment schedule it will be abundantly clear that the OP being developer in order to develop the area under the name and style ‘Dakshinayan’ had entered into an agreement with the Complainant and received the entire consideration amount.

Mr. Saikat Mali, Ld. Advocate for the Appellant has submitted that when the Deed of Agreement does not contain the signature of the purchaser/Complainant, the question of specific performance of the same does not arise. In support of his contention he has placed reliance to a decision dated 07.11.1997 of the Madras High Court in S.M. Gopal Chetty – vs. – Raman Alias Natesan.

For appreciation of the situation, it would be worthwhile to reproduce the provisions of Section 2(1)(d) of the Act which provides -

'Consumer means any person who –

i buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other then the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

ii hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose'.

Explanation:- for the purposes of this clause, 'commercial purpose' does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment'.

The foregoing provision provides that the ‘consumer’ is a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or avails of any services for a consideration which has been paid or promised or partly paid and partly promised. In our case, the Complainant had entered into an agreement with the OP to purchase land on consideration and therefore, the builder being landowner is a service provider and if there is any deficiency in regard to construction, a purchaser may approach a Consumer Forum in view of the provision of Section 2(1)(d) of the Act being ‘consumer’. Therefore, where the purchaser or intending purchaser of an apartment/house or even a plot of land complaint against the builder/developer with reference to development or delivery or amenities, certainly, the said purchaser must be termed as consumer.Needless to say, sell of plot simplicter different from plot sold by builders or promoters. In a case of sale simplicter, there is no stipulation for any service like development. In the instant case, there was a clear stipulation that the OP as builder will make endeavour to develop the land and hand over the same to the intending purchaser/Complainant immediately after payment of entire consideration amount. The Complainant has paid the entire consideration amount by 14.07.2007, but the OP/developer did not communicate anything to the Complainant expressing their intention to handover the flat. On the contrary, when the OP/developer themselves have stated that they have abandoned the idea of development of Dakshinayan Project, certainly, the Complainant is entitled to relief for refund of money and compensation etc. on the ground of deficiency in services on the part of the OP/developer. Therefore, the submission made by the Ld. Advocate for the Appellant has no application in the facts and circumstances of the case.After giving due consideration to the submission made by the Ld. Advocates appearing for the parties, we have no hesitation to hold that the Ld. District Forum has misdirected its

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elf without considering the aim and object behind the enactment of the Act, the object of which ‘to provide for the protection of the interests of consumers’. Therefore, the impugned order being not sustainable in law should be interfered with. For the reasons stated above, the appeal is allowed on contest. However, we do not make any order as to costs. The Order no.7 dated 11.07.2014 made by the Ld. District Forum in CC/13/618 is hereby set aside. The case is remitted back with a direction upon the parties to appear before the Ld. District Forum on 22.12.2016 positively and on that date the OP must file written version, otherwise the Ld. District Forum will proceed to decide the case exparte after reception of affidavit from the Complainant. If written version is filed on that date, the Ld. District Forum will proceed to decide the case in accordance with law. The Registrar of this Commission is directed to send a copy of this order to Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-I for information.
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