UNNAYAN BUILDERS PVT. LTD. VS SONA BERA,2018

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INTRODUCTION

The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of the Opposite Party to assail the Order No.17 dated 10.08.2016 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II (for short, Ld. District Forum) in Consumer Complaint No. 61/2016. By the impugned order, the Ld. District Forum allowed the complaint lodged by the Respondent under Section 12 of the Act with certain directions upon the Appellant/OP to refund amount of Rs.9,35,000/- along with interest thereon @ 9% p.a. w.e.f. 06.09.2010, to pay Rs.50,000/- compensation and penalty of Rs.50,000/- for unfair trade practice.

FACTS OF THE CASE

The Complainant Sona Bera W/o Arnab Bera entered into an agreement with the Opposite Party (OP) Unna yan Builders Private Limited (Petitioner) for purchasing a residential plot. The OP-Petitioner was required to provide the basic infrastructure while delivering possession of   the plot booked in a project namely ‘Unna yan Garden’ for a consideration ofRs.16,50,000/-. As per the terms of the agreement, the OP was to develop the plot within a period of   four years.  The OP having failed to carry out the requisite development by that date, the Complainant approached the concerned District Forum by way of a consumer complaint, seeking refund of the amount paid by him, along with compensation The complaint was resisted by the primarily on the ground that the Complainant had defaulted in payment of the balance instalments and therefore the complaint was liable to be dismissed. The District Forum having ruled in favour of the Complainant, the Petitioner (OP) approached the concerned State Commission by way of an appeal. The said appeal was also dismissed; the Petitioner (OP)filed a revision petition before the National Commission.

ISSUES RAISED

1. Whether there was deficiency of service on part of the Opposite Party?

CONTENTIONS OF APPEALENT

• The first contention of the learned counsel for the petitioner is that the complainant / respondent was not a consumer within the meaning of the Consumer Protection Act since it was an agreement for sale of a plot alone.  However, it is not in dispute that under the agreement some infrastructure was to be developed by the petitioner before delivery of possession and that had to be done within a period of four years from the execution of the agreement.
• Therefore, this is not a case for sale of a developed ready to occupy plot of land.  It is a case where undeveloped land was to be developed by the builder and carved out into residential plots.  The petitioner therefore had to render services to the complainant / respondent, covered by the definition of the service given in the Consumer Protection Act.  The complainant / petitioner therefore was a consumer of the petitioner within the meaning of the Consumer Protection Act.
•  The learned counsel for the petitioner relied upon the decision of this Commission in FA No. 1544 of 2016 Davinder Singh Grewal & Ors. Vs. R.S. Real Estate & Ors., decided on 25.4.2017.  The aforesaid decision is clearly distinguishable on facts because in the said case, the agreement between the parties relating to purchase of agricultural land and only pucca passage was to be provided by the opposite party.  On the other hand in the present case, the petitioner was required to provide the requisite basic infrastructure and therefore had to render services within the meaning of Consumer Protection Act.
• It is next contended by the learned counsel for the petitioner that the complainant had failed to pay the balance installments and therefore the agreement itself was liable to be cancelled on this ground. 
•  However, the fact remains that the petitioner condoned the alleged default on the part of the complainant / respondent by not terminating the agreement on account of the alleged default in payment of the installments.  Having condoned the said default, the petitioner cannot now seek any benefit on account of the foresaid alleged default on the part of the complainant / respondent.

CONTENTIONS OF REPONDENT

• The Respondent herein being Complainant lodged the complaint asserting that on 06.09.2010 she entered into an agreement with the opposite party to purchase of a residential plot measuring about 3 cottahs including development of basic infrastructures, within the upcoming project of OP named ‘Unnayan Garden’ – Being Plot No.B-310 at a consideration of Rs.16,50,000/- payable by 48 instalments which includes development of the land and basic structures required for a residential plot. The complainant has submitted that she has already paid a sum of Rs.9,35,000/- as part consideration amount to OP on diverse dates. As per terms of the Agreement, the OP was under obligation to complete the basic structure within the period of payment of 48 instalments. 
• The complainant has submitted that she was agreeable to pay the balance amount subject to completion of the project but OP has not taken any steps for development of project. Hence, the respondent approached the Ld. District Forum with prayer for several reliefs, viz. – (a) refund of the entire amount of Rs.9,35,000/- along with interest thereon @ 12% p.a. from the date of respective instalments paid to till realisation of the amount; (b) Rs.2,00,000/- as compensation for prolonged mental agony and harassment; (c) litigation cost of Rs.50,000/-etc.

JUDGEMENT

The Petitioners contended that the agreement was not one of service but a contract of sale of a plot alone. Petitioners also argued that the agreement was liable to be set aside as the Complainant had not paid the balance instalment. The Commission observed that the non-payment of balance instalment was condoned by the Opposite Party and they had in fact not terminated the agreement. Thus, the agreement still stands.  The Commission opined that the Petitioners had to build some basic infrastructure before handing over the plot to the Complainant. Thus, there was an element of service presenting the agreement between the Complainant and the Opposite Party and they were deficient in providing the service. Based on the above discussion, the revision petition was dismissed. The Petitioners had to build some basic infrastructure before handing over the plot to the Complainant. Thus, there was an element of service present in the agreement between the Complainant and the Opposite Party and they were deficient in providing the service. Based on the above discussion the revision petition was dismissed.

Installing lifts without minimum power backup Petitioners had to build some basic infrastructure before handing over the plot to the Complainant. Thus, there was an element of service presenting the agreement between the Complainant and the Opposite Party and they were deficient in providing the service. Based on the above discussion, the revision petition was dismissed

ANALYSIS

1. Legal Standards and Precedents – The analysis involved a careful examination of legal standards, including Section 15 of the Consumer Protection Act, 1986.
2. Negligence and Accountability – The courts evaluated the evidence presented and determined that the appellant did not meet the expected standard of care. 
3. Court’s Final Verdict – The case ultimately impugned order is modified to the extent that the appellant/OP refund the amount of Rs.9,35,000/- along with interest thereon @ 9% p.a. from the date of payment of respective instalments till the realisation of the same.

CONCLUSION

In conclusion, the impugned order is modified to the extent that the appellant/OP refund the amount of Rs.9,35,000/- along with interest thereon @ 9% p.a. from the date of payment of respective instalments till the realisation of the same. The order of payment of compensation of Rs.50,000/- imposed by the Ld. District Forum is maintained and the said amount must be paid within 30 days from date in default the amount shall carry interest @ 8% p.a. from date till its recover. With the above observations and directions, the appeal stands disposed of.

REFERENCES

1. https://indiankanoon.org/
2. https://www.scribd.com/

This Article is written by Shambhavi Singh student of Vivekananda Institute of Professional Studies, GGSIPU; Intern at Legal Vidhiya.

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