Per Shri A.Z.Khwaja, Hon’ble Presiding Member.

1)  Complainant Nilkanth Shastri claims to be a resident of Khamgaon has preferred the present Consumer Complaint under section 12 of the Consumer Protection Act, 1986. Short facts leading to the present complaint may be stated as under. 

2)      The complainant Nilkanth Shastri claims to be the owner and in possession of lay out plot bearing No.13 admeasuring 200 sq.mt. and lay out plot No.14 admeasuring 280 sq.mt. which was converted in  to non agricultural land as per order dated 11/12/1989 passed in revenue case No.NAP-34/12/1989-90, Malvihir, situated at Mouje Malvihir Tq. Dist.Buldhana. O.P. namely Anil Rai is  the builder and developer and  is  doing the business of developing plots on commercial basis. O.P. approached to the complainant and represented that he has having vast experience of developing residential and commercial complexes and can construct a good building for the complainant. Complainant was told that he will be residing in one flat in newly constructed building and the construction will be carried  out within stipulated time frame. Complainant agreed to the proposal given by the O.P. and also agreed to enter in to an agreement with the O.P. As per the terms and conditions between the parties the construction was to be completed within period of 18 months, but while executing the agreement the O.P. wrongly mentioned the period as 30 months. Complainant was also told that he will have no role to play in respect of construction and the entire liability is that of O.P. Complainant was to be entitled for 40% share of the construction of the each plot and O.P. was entitled for 60% share. Complainant has contended that thereafter O.P. asked the complainant to execute the development agreement cum general power of attorney and believing on the same the complainant executed the development agreement which was also notarized on 17/03/2018. Map of the proposed construction was also sanctioned by Gram Panchayat Malvihir. O.P. again approached to the complainant and submitted that the general power of attorney which was notarized earlier needs to be registered and asked complainant to  sign the same before Sub-Registrar Buldhana on 05/04/2018. Complainant was not given any opportunity to go through the said agreement. Complainant has alleged that thereafter O.P. asked the complainant that he will have to purchase one flat in the proposed building and for that he will have to enter in to one agreement for sale. Complainant was also asked to pay Rs.27,00,000/- towards the cost of the flat so that he can start construction. Complainant has alleged that thereafter also he paid Rs.17,00,000/- before agreement of sale. Complainant has alleged that even after execution of agreement of sale O.P. failed to start the construction and had also changed the period from 18 months to 30 months. Complainant has contended that O.P. did not carry out the construction at all and on the contrary executed one agreement of sale of one flat with Chaitanya Suralkar    on 10/08/2018 and also received Rs.3,00,000/- from him. Complainant then issued public notice on 21/01/2019. Complainant also filed police complaint before the Superintendent of Police Buldhana on 25/06/2019. Complainant also filed suit for declaration and permanent injunction in the Civil Court. Complainant found that the O.P. had made false promises and did not carry out construction and so there was deficiency in service on the part of the O.P. O.P. had also violated the provisions of Maharashtra Ownership of Flat Act 1963. Complainant also issue notice to O.P. on 18/07/2019. Complainant therefore has prayed that the O.P. be declared as guilty of adopting unfair trade practice and deficiency in service. Further O.P. be directed to refund the amount of Rs.27,00,000/-, 6,50,000/-, 25,000/- and 11,500/- alongwith compensation for mental and physical harassment and so the complaint.

3)      After filing of the complaint due notice was issued to the O.P. and the same was duly served, but the O.P. failed to remain present and contest the claim of the claimant and so the complaint proceeded ex-parte against the O.P. as per order Dt. 03/01/2020.

4)      I have heard Shri S.S.Kulkarni, learned advocate for the complainant. I have also gone through the evidence affidavit filed on record by the complainant as well as the various documents which are filed on record. At the out set the learned advocate for the complainant has drawn my attention to the copy of development agreement which was executed by the complainant and the O.P. namely Anil Rai. Bare perusal of this development agreement shows that the O.P. had under taken to carry out construction on the plot of the complainant consisting of several flats out of which one flat was to be allotted to the complainant. Complainant has also placed on record one copy of registered agreement Dt.05/04/2018. Complainant has also placed on record copy of 7/12 extract which shows that the complainant Nilkanth Shastri   was the lawful owner of the plot which was converted in to non agricultural plot as per orders passed by Tahasildar, Buldhana. Copy of the said order passed by Tahasildar is also placed on record. Apart from this the complainant has also filed on record one copy of agreement of sale entered between one Chaitanya Suralkar and the present complainant regarding sale of one flat. Complainant has further placed on record one copy of report lodged with the police station Buldhana regarding the cheating and breach of agreement committed by the O.P. and the same is Dt.31/01/2019. Further complainant has also placed on record one copy of FIR lodged with Buldhana Police Station vide crime No.629/19. Complainant has also filed on record copy of statement of account regarding amounts paid to the O.P. From these documents which are placed on record it is crystal clear that the complainant was the owner of lay out plot No.13 and 14 and under the bonafide believe that he will get one flat as well as construction on the plot entered in to an agreement with the O.P. who represented him self to be a developer. Complainant has led evidence on affidavit to show that no construction was carried out as promised by the developer and on the contrary huge amount of Rs.27,00,000/- and 6,50,000/- came to be paid. Complainant has also placed on record copy of report lodged with police station Buldhana regarding the cheating committed by the O.P.

5)      From the evidence affidavit and documents placed on record it is clear that the O.P. Anil Rai despite being the Service Provider have not provided the services as promised by him in the development agreement and subsequent agreement and so there was deficiency in service on the part  of O.P. as defined in Consumer Protection Act 1986. It is also clear that the complainant had parted with huge amount of Rs.27,00,000/-, 6,50,000/-, 25,000/- and 11,500/-.

6)     After filing of the complaint due notice was also given to the O.P. and the same was also duly served, but the O.P. did not appear and contest the claim of the complainant and so the evidence led by the complainant has gone unchallenged and will have to be accepted.     7)       During the course of arguments Shri S.S.Kulkarni, learned advocate for the complainant has also placed reliance upon one  judgment in the case of of Daniel Babu…….V/s……Vasudeva Constructions and others, reported in 2016 CPJ 1(SC), and also one case of Anthony H.Silva…….V/s…..Hermonie Mary Salazar, reported in I(2018) CPJ 328 (NC). In the case of Anthony H.Silva…….V/s…..Hermonie Mary Salazar (cited supra)  the  facts were similar  and  promise was made by the land developer to land owner. It was observed that the land owner was the consumer and there was deficiency in service. Advocate Shri S.S.Kulkarni has also relied upon one judgment in the case of Udam Lal Singla and others……V/s……Emaar MGF Land Ltd and Ors, reported in 376 (NC) I(2018) CPJ 376 (NC). In this case of Udam Lal Singla and others……V/s……Emaar MGF Land Ltd and Ors (cited supra) the Hon’ble National Commission was dealing with the question of limitation and it was observed that cause of action will continue till obtaining completion certificate by O.P. In the present case the facts were similar and developer had failed to carry out construction on the land owned by the present complainant. Shri Kulkarni, learned advocate for the complainant has also relied upon one land mark judgment in the case of Faqur Chand Gulati……..V/s…….Uppal Agencies Pvt.Ltd and Anr, reported in 48(SC) III(2008) CPJ 48 (SC). In this case it was observed that when there was a joint agreement then developer was liable to compensate the complainant for all losses if he failed to fulfill his obligation. As such this judgment in the case of Faqur Chand Gulati…..V/s….Uppal Agencies Pvt.Ltd and Anr (cited supra) is also squarely applicable to the facts of the present case. As a result I must held that the complainant was a consumer and the O.P. being a service provider had committed deficiency in service by not completing the construction as per the terms and conditions of development agreement. I also hold that the complainant was entitled for refund of the entire amount of Rs.27,00,000/-, 6,50,000/-, 25,000/- and Rs.11,500/- paid by him to O.P. namely Anil Rai alongwith interest and compensation towards mental and physical harassment. I therefore pass the following order. 

// ORDER //

i.        Complaint is partly allowed.

ii.       It is declared that Opposite Party had indulged in deficiency in  service.

iii.      Opposite Party is directed to refund to complainant the amount of Rs.27,00,000/-, 6,50,000/- 25,000/- and Rs.11,500/- alongwith interest @ 12% p.a. from the time of payment till receipt of order.

iv.      The Opposite Party is further directed to pay sum of Rs.50,000/- by way of compensation towards mental and physical harassment and Rs.10,000/- towards cost of litigation.

v.       Copy of order be furnished to both the parties free of cost.