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Pranabesh Das & Another v/s M/s. Canopy Projects Ltd.

    First Appeal No. 323 of 2018

    Decided On, 18 January 2021

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. C. VISWANATH
    By, PRESIDING MEMBER

    For the Appearing Parties: Arunava Mukherjee, Dinesh Sabarwal, Advocates.



Judgment Text

This Appeal is filed against the order dated 06.12.2017 of the West Bengal State Consumer Disputes Redressal Commission, Commission, Kolkata (hereinafter referred to as "the State Commission) in CC/460/2015.

2. Case of the Appellants/Complainants is that on 15.02.2007 they entered into an agreement with the Respondent/Opposite Party for purchase of a developed plot, measuring 7.5 Cottah, for a consideration of Rs.22,50,000/-, out of which Complainants paid Rs.20,25,000/- on different dates. As per the Agreement, the plot was to be developed in two Phases, Phase I was to be completed by December, 2006 and Phase II by December, 2007, but the Opposite Party failed to do so. Complainants sent a legal notice dated 22.06.2015 to the Opposite Party. Opposite Party replied to the legal notice, vide letter dated 03.07.2015, wherein they admitted having received an amount of Rs.20,25,000/-and also agreed to refund the entire amount. On 18.07.2015, Opposite Party sent an email containing offer of settlement. Since the terms of settlement were not acceptable to the Complainants, on 03.09.2015 they approached the Consumer Affairs Department for redressal of their grievance. On 29.9.2015, the Opposite Party agreed to refund the principal amount of Rs.20,25,000/- on the next date i.e. 15.10.2015, but the Opposite Party failed to make payment. Claiming deficiency in service on the part of the Opposite Party, Complainants filed Consumer Complaint before the State Commission with the following prayer to:

"i) The opposite party to handover the developed plot of land as per agreement or failing which refund the amount of Rs.20,25,0000/- which has been paid by the Complainants, the details have already been given in para 4 & 6 plus interest @ 16% till date of payment calculated as on 25.10.2015 as Rs.21,78,960/-.

To pay the compensation towards mental torture, damage and cost Rs.10,000/-.

Any other order or orders as your Honour deem fit."

3. Complaint was contested by the Opposite Party/Respondent on the ground that the Opposite Party could not develop the plot in time, since State of West Bengal initiated vesting proceedings against them. Since the matter was subjudice in Calcutta High Court, nature of the land could not be changed by the Opposite Parties.

4. State Commission, after hearing Learned Counsel for the Parties and perusing the record, allowed the Complaint and directed the Respondent/Opposite Party as follows: -

"The OP is directed to hand over and to execute the Deed of Conveyance in respect of the plot as per Agreement for Sale dated 15.02.2007 in favour of the Complainants within 60 days from date on receipt of balance consideration amount of Rs.2,25,000/-, failing which the OP must refund Rs.20,25,000/- along with interest thereon @ 12% p.a. from the date of payment till its full realization. The OP is further directed to pay compensation of Rs.1,00,000/- and litigation cost of Rs.10,000/- aggregating Rs.1,10,000/- within 30 days from date otherwise the amount shall carry interest @ 9% p.a. from date till its realization."

5. Not satisfied with the order of the State Commission, Complainants have filed present Appeal. Heard Learned Counsel for the Parties and carefully perused the record. Learned Counsel for the Appellants submitted that the State Commission erred in giving an option to the Respondent to give the plot or refund the amount with interest. It was also submitted that the interest granted by the State Commission was on lower side and the interest should have been awarded @ 16%.

6. Learned Counsel for the Respondent submitted that the Appellants in their Complaint before the State Commission made a prayer for allotment of the plot. They cannot seek the relief before this Commission beyond their prayer in the Complaint. Therefore, the impugned order is justified and the Appeal be dismissed.

7. Admitted facts of the case are that on 15.02.2007 Appellants/ Complainants entered into an Agreement with the Respondent/Opposite Party for purchase of a developed plot, measuring 7.5 Cottah, for a consideration of Rs.22,50,000/-, out of which Complainants paid Rs.20,25,000/- on different dates. As per the Agreement, the plot was to be developed in two Phases, Phase I was to be completed by December, 2006 and Phase II by December, 2007, but the Opposite Party failed to do so. The Complainants sent a legal notice dated 22.06.2015 to the Opposite Party. The Opposite Party replied to the legal notice, vide letter dated 03.07.2015 wherein they admitted having received an amount of Rs.20,25,000/-and also agreed to refund the entire amount. On 18.07.2015, the Opposite Party sent an email containing offer of settlement. Since the terms of settlement were not acceptable to the Complainants, on 03.09.2015 they approached Consumer Affairs Department for redressal of their grievance. On 29.9.2015, the Opposite Party agreed to refund the principal amount of Rs.20,25,000/- on the next date i.e. 15.10.2015, but the Opposite Party failed to make payment.

8. The Complainants/Appellants themselves made a prayer before the State Commission that the Opposite Party be directed to handover the developed plot of land as per the Agreement, failing which refund the amount of Rs.20,25,000/-State Commission allowed the Complaint and directed the Opposite Party/Respondent to hand over and to execute the Deed of Conveyance in respect of the plot as per the Agreement for Sale dated 15.02.2007 in favour of the Complainants within 60 days from date on receipt of balance consideration amount of Rs.2,25,000/-, failing which the OP was directed to refund Rs.20,25,000/- along with interest thereon @ 12% p.a. from the date of payment till its full realization. The Appellants in th

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eir prayer before the State Commission sought developed plot of land failing which to give refund of amount deposited with interest, apart from compensation for mental torture. Appellants cannot change their stand in the Appeal and they cannot pick and choose. The order of the State Commission is in accordance with the prayer in the Complaint. 9. For the foregoing discussion, I am of the view that the order passed by the State Commission is fully justified. Appellants failed to show any illegality or irregularity in the impugned order warranting interference in the appellate jurisdiction. Appeal is dismissed with no order as to costs.
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