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Judgment
Heard counsel for the parties.
The above appeal has been filed against the order of the State Consumer Disputes Redressal Commission, West Bengal dated 26.04.2022 passed in CC/616/2018 whereby the complaint has been allowed and the appellant has been directed to refund the entire amount of Rs.2125000/- with simple interest @15% per annum from the date of respective deposit till the date of refund and a cost of Rs.10000/- has been awarded.
The respondent filed CC/616/2018 before State Commission alleging that the opposite party had launched a project of plotted colony namely ‘Unnayan Gardens’ at Mouza - Kulberia, District South 24 Paraganas in the year 2010. The complainant booked a plot on 08.09.2010 and deposited consideration in instalments. The opposite party executed an agreement dated 25.05.2011, for plot no. UG-B-285/1 (area 2.5 Cottah) for a consideration of Rs.1625000/- in the aforesaid project. The complainant deposited Rs.1489569/- till 31.10.2014. The opposite party thereafter, asked the complainant to exchange the previous plot with another plot of 3 Cottah i.e. Plot No.B-242 and a fresh agreement was executed on 31.01.2015 for consideration of Rs.2125000/-. In terms of the fresh agreement dated 31.01.2015, fresh consideration was deposited by the complainant and Rs.2125000/- was deposited till 31.12.2015. But even after expiry of reasonable period from the agreement dated 31.01.2015 and deposit of full consideration by 31.12.2015, the opposite party failed to deliver possession which he had promised to deliver by December 2015. Then this complaint was filed.
The opposite party filed its written reply in which allotment of previous plot, deposit made by the complainant, execution of the agreement dated 21.05.2011, execution of subsequent agreement dated 31.01.2015 as well as total deposit of Rs.2125000/-, have not been denied. The opposite party has taken plea that due to force majeure reasons, the plots could not be developed within the period allowed in the previous agreement which has already been cancelled. It has been stated that as per terms of the agreement dated 31.01.2015, the work had to be done by 31.01.2019. Since the complainant has cancelled the agreement dated 31.01.2013 much before expiry of the period as such, the opposite party is entitled to forfeit 25% of the amount as per clause 8 of the agreement. The project was delayed for force majeure reasons.
State Commission in the impugned order found that the appellant could not prove force majeure reasons. The complainant paid entire consideration till 31.12.2015. Clause 9 of the agreement dated 31.01.2015 provides that all infrastructure would be developed within the period of the last monthly instalment. Last monthly instalment was paid on 31.12.2015. Thereafter, seven years have elapsed but infrastructure was neither developed nor possession was offered. As such the complainant was entitled for refund with interest @ 15% per annum. On these findings, the complaint was allowed. Hence this appeal has been filed.
I have considered the arguments of the counsel for the parties. So far as launching of the project of plotted colony as well as booking of the plot and deposit of the amount have not been denied. The argument that the complaint was premature is concerned, even till today the appellant had not offered possession to the respondent. On the appellant’s insistence the original agreement dated 25.05.2011 was cancelled.
On the one hand, the appellant is arguing that the agreement dated 31.01.2015 is not admissible in evidence as it was not properly stamped but at the same time relying upon clause-10 of the agreement, it is argued that the complaint was premature. Original booking was done on 08.09.2010 and full payment was done till 31.12.2015.
Although the full consideration was paid by the complainant till 31.10.2015 but he was not delivered possession within reasonable period. Therefore, the complainant is entitled for refund of the money along with reasonable compensation.
So far as the compensation is concerned, compensation can be granted in the nature of restitutory and compensatory both which is a just compensation. In the facts of the case, I think that award of compensation @ 10% per annum from the date of respective deposit till the date of refund would be just compensation which amounts to restitutory and compensatory both.
ORDER
In view of the above discussions, the appeal is partly allowed. Order of the State Commission dated 26.04.2022 passed in CC/616/2018 is modified to the extent that the complainant will be entitled for interest @ 10% per annum from the date of respective deposit till the date of refund. The complainant is also entitled for a cost of Rs.50000/- in this appeal. The appellant shall pay the entire amount including the cost awarded by this Commission to the respondent within a period of two months from today.