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Desire Agro Resorts Development Pvt. Ltd. v/s Olivia Dan

    First Appeal No. 970 of 2015 in Complaint Case No. 438 of 2013

    Decided On, 24 May 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: Chandrasekhar Mukherjee, Advocate. For the Respondent: Bisweswar Dan (Authorised Person), 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 to the judgment dated 31.07.2015 passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore (for short, Ld. District Forum) in consumer complaint no. 438/2013 whereby the consumer complaint initiated by the respondent herein u/s 12 of the Act was allowed on contest without any order as to cost with direction upon the opposite parties/appellants to execute and register the Deed of Conveyance and deliver the possession of the property in question within one month from the date of the order.

The respondent herein initiated the consumer complaint alleging that on 16.06.2002, she booked a plot measuring about 2160 sq. ft. together with all other common facilities/amenities in the master plan of Sun City under Plot no.50, Khatian no. 76 under Mouza-Jhanjragram within P.S. Bishnupur, Dist- South 24 Parganas at a consideration of Rs.60,000/- and Rs.40,000/- towards development cost aggregating Rs. 1,00,000/-. In the agreement it was stipulated that the amount would be paid by the complainant in 60 monthly equal instalments of Rs.1,500/- each. The complainant alleges that she had paid Rs.10,000/- on 12.07.2001 towards booking charge and further paid the entire consideration amount in between 14.07.2001 and 20.07.2006. In spite of receipt of entire consideration amount, the developers have shown apathy to deliver possession and to execute the Deed in favour of her. The requests and reminders in this regard and even the legal notice issued by the complainant remain unheeded. Hence, the complaint against the developer for deficiency in services on the part of them.

The appellants being the opposite parties by filing written version took a plea that the Ld. District Forum lack territorial jurisdiction in entertaining the petition of complaint. The specific contention of the OPs that owing to some unavoidable circumstances, they could not provide the complainant with the allotted plot and at the same time proposed to allot a new plot in her name in the same project but the complainant by her letter dated 17.10.2012 flatly denied the said proposal and as such there was no laches, negligence or deficiency in service on the part of them.

Relying upon the materials on record including the evidence led by the parties, the Ld. District Forum by the impugned judgment allowed the consumer complaint with the directions as indicated above, which prompted the OPs to come up in this Commission with the present appeal.

Having heard Mr. Chandra Shekhar Mukherjee, Ld. Advocate for the appellants and Mr. Gouranga Gupta Roy, Ld. Counsel for the respondent, it comes to surface that on 16.06.2002 an agreement for sale was executed by and between the parties by which the appellants agreed to sell a piece of land measuring about 2160 sq. ft. together with all other common facilities in the master plan of Sun City lying and situated at plot no.50, Khatian No. 76 within Mouza- Jhanjragram, P.S. Bishnupur, Dist South 24 Pgs. at a consideration of Rs.1,00,000/- only including the development costs/charge of the said land. The complainant had paid the entire consideration amount in between 14.07.2001 and 20.07.2006. In the Agreement, it was stipulated that within three/five years from the date of execution of the Agreement, the appellants/developers will hand over the vacant peaceful possession and also execute the Deed of Conveyance. Admittedly, in spite of receipt of entire consideration amount, the appellants did not keep their words and on the ground of deficiency in services on the part of the developer, the instant consumer complaint has been filed.

Mr. Chandrashekhar Mukherjee, Ld. Advocate appearing for the appellants has submitted that the office of the developer is lying and situated under Lake P.S and as such the Ld. District Forum had no jurisdiction to entertain the complaint and it should have been filed before the Ld. District Consumer Disputes Redressal Forum, Kolkata and since the complaint has been decided by the Ld. District Forum of South 24 Parganas, the impugned order is a ‘nullity’.

Ld. Counsel for the respondent, on the other hand has submitted that the appellants in respect of a similar case challenging the order of the District Forum moved one Revision Petition being RP/52/2014 before this Commission and this Commission by order dated 28.11.2014 has observed that as per Clause-19 of the Agreement between the parties, the Ld. District Forum had the territorial jurisdiction to entertain the complaint and since the said order has not been challenged, it attained finality.

Having a look to the relevant order passed by this Commission in RP/52/2014 and on going through the contents of Clause-19, it can be safely said that the Ld. District Forum did not commit any error by entertaining the said complaint and disposed of the same in accordance with the provisions of the Act.

Thereafter, Ld. Advocate for the appellants referring to the letter dated 17.10.2012 issued by the developer in favour of the respondent has submitted that due to some unavoidable reasons the property in question could not be delivered and as such a request was made to the respondent to agree with the proposal of a new plot in the same project and when such proposal was not accepted, no liability or deficiency in services can be attributed upon the developer.

Ld. Advocate for the respondent has submitted that over the issue in question, as raised by the Ld. Advocate for the appellant, this Bench passed a speaking order in a decision dated 04.03.2016 in FA/839/2014 (Ms. Desire Agro Resorts Development Pvt. Ltd. – Vs. – Shri Punya Jyoti Chowdhury & Ors.) and placed a copy of the said order. In the said case, referring to the decision of the National Consumer Commission reported in IV (2012) CPJ 155 (Meerat Development Authority – Vs. – Ashoke Kumar Sood), it has been observed that the developer cannot charge the enhance price either in respect of original flat or in respect of alternative plot and in this regard original price will prevail.

Needless to say, agreement by and between the parties towers above the rest. The parties are bound by the terms of the agreement and there is hardly any scope to bypass the terms and conditions of the agreement in question. The respondent has complied with the terms of the agreement in toto and has paid the entire consideration amount and as such the entire burden lies upon the developer to fulfil their part of obligations in executing the Deed of Conveyance and to deliver possession of the subject property. The developer has no scope to alter the terms of the agreement unilaterally.

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/>Therefore, after giving due consideration to the submission advanced by the Ld. Advocates of the parties, we are of the view that the appeal is totally a meritless one as such it deserve dismissal. Since the appellants had no reason to prefer this frivolous appeal, they must be saddled with costs which we quantify at Rs.10,000/-. For the reasons aforesaid, the appeal is dismissed on contest with cost of Rs.10,000/- to be paid by the appellant in favour of the respondent i.e. the complainant of the case. The judgment passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore in CC No. 438/2013 is hereby affirmed. Let a copy of this order be forwarded to the Ld. District Forum for information.
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