Samiksha Bhattacharya, Member
The instant appeal has been directed by the appellant/OP(hereinafter referred to as ‘OP’) against the order dated 05.06.2018 passed by the Ld. DCDRC, South 24 Parganas at Baruipur in CC/159/2010.
Facts of the case are, in brief, that the Respondent/(hereinafter referred to as ‘Complainant’) complainant had made an application for enrollment of a plot in “East End Park Township Project” of OP at Kasba, Kolkata, where the OP promised to give 5 (five) Cottahs developed land at a price of Rs. 18,000/- per Cottah and collected Rs. 10,105/- on or about 23.05.1994 by A/C payee cheque paid by the complainant. The OP acknowledged the same by issuing a money receipt being No. 691, dated 08.06.1994 duly signed by a Director of the OP. On the same date the Managing Director of the OP confirmed the booking of the plot of land measuring 5 cottahs vide their letter dated 08.06.1994. In the said letter the OP stated that the cost of the plot of land is Rs. 18,000/- per cottah and OP also would charge a sum of Rs. 10,000/- per cottahs for development of said plot of land. OP by their letter dated 23.04.1997 informed the complainant that due to some hurdles they could not develop the land of the project and requested to bear with them for some time for allotment of the land. On 09.08.2000 the OP informed the complainant that the price of the land increased at Rs. 50,000/- per cottahs excluding development and incidental charges. (The complainant on 10.10.2000 requested the OP to provide some information regarding the project land).The complainant was not given the details of the plot of land as requested by him in his letter dated 10.10.2000. On 29.11.2001 complainant sent Advocate notice requesting the OP to execute and register the plot of land which was booked by the complainant upon taking balance consideration amount. Ultimately on 12.03.2008 complainant sent another Advocate notice to the OP to allot the plot of land, in default, the complainant would take legal action. But OP did not respond. Since the OP is guilty in deficiency of their service and the OP is adopting the unfair trade practice the Complainant filed the complaint case before the Ld. District Commission praying for direction upon OP to execute and register the final deed of conveyance in favour of the complainant in respect of the plot of land measuring 5 cottahs on taking balance consideration amount and hand over vacant, peaceful possession of the said plot of land in favour of the complainant, alternatively to direct the OP to refund the earnest money of Rs. 10,105/- together with interest @ 18% per annum amounting to Rs. 1,31,290/- as on 08.06.2010. Complainant has also prayed for Rs. 15,000/- towards charges for correspondence and legal charges, Rs. 10,000/- towards harassment and mental agony along with further interest from 09.06.2010 till the date of payment.
OP has contested the case by filing their written version and additional written version since complainant has filed the amended version of petition of complaint. The project East End Park situates within Kasba area of Kolkata, was owned by dint of purchase through various registered deed of conveyance executed on diverse dates by its erstwhile owner in the year 1989 by the OP. After acquisition of the title by the OP they invited booking from the prospective buyers by and large in respect of the said vast land divided into different small plots under different measurement. Pursuing to such booking invitation the complainant intended to book one such plot through lottery among other plot bookers. At the time of booking complainant paid only the booking application form fees to the tune of Rs. 10,105/- by cheque on 23.05.1994. It was settled unanimously that for the purpose of surfacing the land, preparation of its road and sub lanes, drainage system and other development works further payment needed to be paid. But the complainant failed and neglected to pay any further payment from the purchasers. Due to lot of hindrances created by West Bengal Land and Land Reforms Department in respect of such project after having been acquired the title of the property the OP had to fight out various proceedings initiated by the Government Authority and ultimately OP became successful in establishing their title and got the property released from the West Bengal Land and Land Reforms Department. For the aforesaid reason the OP had to incur huge expenses. As a necessary consequence the development work of the project got delayed because of such Force Majeure and cost of the project was escalated which prompted the OP to revise the terms and conditions for the allotment of the plots which was categorically spelt out in their letter dated 09.08.2000. It was also stipulated that 50% of the price of the total land as might be allotted to the complainant in the project would have to be paid within 15 days from the date of receipt of the said letter and balance 50% would be paid within 15 days from the receipt of intimation to that effect which would be followed by the issuance of the letter of allotment of the plot of land after adjustment of the booking amount. It was further stipulated in the said letter that such notice for payment of balance amount would be issued simultaneously with the sanction of the development plan under West Bengal Town and Country (planning and development) Act, 1979. In case of default the complainant ought not to be entitled to any plot of land and his booking of plot of land would stand cancelled.
On receipt of the letter dated 09.08.2000 issued by OP to the complainant, the complainant sent the letter urging that any terms to be modified should be bases on mutual agreement. In fact, the complainant did not confirm to take the plot on the basis of the revised terms and conditions. Further the complainant issued an Advocate’s notice on 19.11.2001 informing that since he was busy with his professional activities in Mumbai , he did not want to prolong the dispute regarding the purchase of the plot of land with the OP and he was rescinding the booking of his own and asked for refund of the booking amount with interest @ 18% per annum from 08.06.1994 till the date of payment. Accordingly the booking of the complainant has been cancelled long back and/or rescinded by the complainant himself and after lapse of more than 9 years he cannot claim for refund of money with his speculative rate of interest since the same is hopelessly barred by limitation. The claim is simply a money claim and it appears nothing but a commercial transaction which does not come under the purview of C.P. Act. Since the complainant rescinded the agreement long back on 19.11.2001 the instant case only deserves its rejection with exemplary cost.
The Ld. District Commission allowed the complaint case on contest with Rs. 10,000/- to be paid by the OP to the complainant. OPs are further directed to make payment of Rs. 10,105/- to the complainant with interest @ 12% per annum from the date of receipt of said money till the date of realization.
Being aggrieved by and highly dissatisfied with the aforesaid order the complainant/appellant filed the instant appeal. Ld. Counsel for the complainant has submitted that Ld. District Forum has erred in its decision by directing the OP for refund of the booking amount since this was the alternative prayer of the complainant in the amended version of the petition of complaint. Firstly the complainant filed the petition of complaint praying for refund of booking amount. But subsequently complainant has filed the amended version of petition of complaint where he prayed for registration of the land, delivery of possession of the same on payment of balance consideration, or alternatively to refund the consideration price paid to the OP with interest. Now they prayed for registration of the land and delivery of the same upon payment of balance consideration and therefore, the present appeal. Ld. Advocate for the complainant has also mentioned that the letter dated 09.08.2000, issued by OP, is not according to law. From the letter dated 23.04.1997 issued by OP, it is clear that there was delay in developing the project for the reasons stated therein.
In course of argument Ld. Advocate for the OP has submitted that in the first complaint, the complainant has only prayed for refund of booking amount. If the complainant prays for execution and registration of the final deed of conveyance in respect of the plot then the complainant ought to have deleted the alternative prayer of refund of booking amount. The Ld. District Commission has observed that the land has not been developed and the complainant has prayed for refund of money paid to the OP by him with interest. Therefore, there is no error in the impugned order passed by the Ld. District Commission.
The Ld. Counsel for the OP has also submitted that they have categorically mentioned in their written version that they could not develop the land in time for the reason which was beyond their control. Firstly there was public agitation and the cases were pending initiated by B.L. & L.R.O. against their title. Moreover, in page 4 of Memo of Appeal, complainant has stated that “the respondent/opposite party on lame excuse has denied to hand over possession and registration the plot of land because at present the market value of the said land has been rapidly increased.” But the OP has never stated this. Ld. Advocate for the OP has also submitted that they have sent the cheque to the complainant as per order of the District Commission but the complainant did not encash the same for the reasons best known to him. The OP has cited a judgement passed by Hon’ble Supreme Court reported in 2017 (1) CPR 149(SC).
Upon submission of both parties and on perusal of entire materials on record we have observed that in the judgement Ld. District Commission has mentioned both the prayers of the complainant, not ignored the first prayer of the complainant. In the amended petition of complaint complainant has prayed for execution and registration of final deed of conveyance in favour of complainant in respect of plot in question and hand over vacant peaceful possession of the said plot of land, alternatively, to refund the earnest money. Since in the course of the argument before the Ld. District Commission complainant has stated the land has not yet been developed and prayed for refund of earnest money the Ld. District Commission has rightly directed the OP to refund the earnest money along with interest. As per letter dated 09.0
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8.2000 the complainant has not complied with the terms and conditions which were stated by the OP. Therefore, the agreement by and between the complainant and OP has already been expired. There is no existence of the agreement at present. Since as per complainant’s version before the Ld. District Commission the land is yet to be developed by OP the Ld. DCDRC has rightly gave direction upon OP for the alternative prayer made by the complainant. The complainant has prayed peaceful vacant possession of the land in question and when the Ld. Forum has observed that the order of direction upon OP to deliver the peaceful vacant possession of land is not possible, the District Commission allowed the complaint by directing the OP for refund of booking amount. Moreover, from the complainant’s letter it is evident that complainant wants to rescind the booking in question with the OP. In view of above, we find no infirmity or material irregularity in the judgement passed by Ld. District Commission. Therefore, the impugned judgement passed by Ld. District Commission is hereby affirmed. Thus the appeal is dismissed on contest and disposed of accordingly.