Per Hon'ble Dr. S.K. Kakade, Presiding Member

1. Aggrieved by the failure of giving legal possession of the purchased plots and not executing sale deeds, the complainants, husband and wife, Shri. Rajpal Lakshman Raut and Smt. Renuka Rajpal Raut, from Chandanagaon, district Chhindwara, MP, filed this complaint against the opposite parties, M/s Ambika land developers at Nagpur through its two partners, with prayers of restraining the builder/developers from transferring plots to other persons and directing them to hand over the legal possession of the plots along with the execution of sale deed and compensation Rs. 2, 00, 000/- towards financial losses, physical and mental harassment and Rs. 50, 000/- towards the cost of the complaint.
2. The brief facts for deciding this complaint are as follows,

Shri Rajpal Lakshman Raut and Smt. Renuka Rajpal Raut, husband, and wife residing at Ashirwad Colony, Chandangaon, District Chhindwara in Madhya Pradesh. Complainant no. 1 Mr. Rajpal is an employee of a private company in Kolkata, with the view that settling in the future in Nagpur, purchased two plots for building a residence, booked one plot in his name and another plot in his wife's name. They approached the opposite party, M/s Ambika Land developers at Nagpur, the partners of this company are Smt. Geeta Namdev Dhandale and Shri. Ashish Namdev Dhandale, with address at plot no. 41, Sai Nagar, Wadi, Nagpur 440 023.

3. The complainants accepted offers from the opposite party developers to sell residential plot no. 11 B block of 176 sq.m., and plot no. 30 B block of 183. 75 sq.m. respectively. Both plots are located in the “B” block of the layout, Namdev Nagar at Mauza Lava, PH no. 4, Khasra no. 40, Tah. Nagpur Gramin, District Nagpur, and the complainants paid the full amount of consideration. The opposite party gave instalment cards to the complainants that contain relevant information of the plot of land to be purchased by the complainants at a specific price with the size of the plots and the amount and number of instalments received by opposite party. The complainants received a letter from opposite parties demanding an outstanding amount, letters dated 5^thSeptember 2008 and 6^thSeptember 2008.Further, the complainants also received letters demanding more money for doing the registry in the year 2010. Initially the Complaints made all transactions with Shri Namdev Lakshmanrao Dhandale, who later on died on 5^thJuly 2016 due to illness. The wife and son of the deceased Mr. Namdev took over the business of the company. Furthermore, demand letters were sent to the complainants. The opposite party did not keep the promises to do a registry of the plots in favour of the complainants and also levied development charges at the rate of Rs. 180/- per square foot. Aggrieved by this, the complainants have approached this Commission and filed this complaint. The opposite parties appeared in the complaint and opposed the complaint by filing written statements and evidence affidavits. In view of the completeness of the documentation, this complaint was heard finally.
4. We heard the rival submissions and arguments advanced by learned advocates of both parties and perused the record.Considering submissions of advocates for both parties,  record, and scope of the complaint, the following points arise for our determination, and our findings thereon are noted as against them for the reasons herein below:

POINTS:

REASONS:

5. AS TO POINT NO. 1: “CONSUMER’

The complainants while booking the plots paid consideration to the opposite party M/s Ambika Land Developers, Nagpur. They have filed copies of the layout plan and the installment cards in the names of Mr. Rajpal as well as Smt. Renuka. Further, document no. 8, a letter from Ambika land developers in the name of Shri. Rajpal Laxman Raut dated 13^thMay 2014 which is a demand letter from the opponent for balance payment while admitting the payment of Rs. 1, 60,000/- and document no. 9, a letter by the opponent in the name of Smt. Renuka Rajpal Raut dated 12^thJune 2014 admitting the payment of Rs.1,60,000/- demanding balance payment. In view of these documents, it is clear that the complainants have paid part consideration to the land developers which has been admitted by the developers. As per the definition of ‘consumer’ under the Consumer Protection Act 1986, the complainants are consumers of the opposite-party Land developers and promoters. We answer POINT no.1 as AFFIRMATIVE.

6. AS TO POINT NO.2: “DEFICIENCY

Learned advocate Mr. M.G.  Burde submitted that the two plots were booked by husband and wife in view of building a house for the future residence in Nagpur. While booking the plots, the complainants deposited more than 50% of the amount with the opponent,M/s Ambika land developers of Nagpur. Further submitted that,

1. I have already deposited the consideration amount with the opponent as per the installment card. The developer further additionally demanded the development charges of Rs. 180/- per square foot extra,  though, the actual development charges are Rs. 63/- per square foot approved by Nagpur Improvement Trust (NIT)
2.  The complainants obtained the information, from the Right to Information application about approved development charges for the area as Rs. 63/- per square foot, as approved by NIT(Nagpur Improvement Trust).
3.  That,  despite accepting the near total consideration, the opponents have not executed the sale deed of these plots in favour of the complainants
4.  The developer demanded more charges, Rs.180/- per sq. foot,  this was the point of dispute and on the refusal of heavy charges payment,  these sale deeds were not executed
5.  That, the developers did reshuffling the layout as per the notice from Nagpur Improvement trust and hence he reassigned the numbers to the plots in the changed layout,  changing the plots assigned to the complainants 
6.  In view of this, the learned advocate for complainants prayed for a declaration that the opponents are guilty of unfair trade practice and to direct the developer to hand over booked flats or if not possible alternate plots should be made available. Further if at all the plots are not available, the opponent be directed to pay the market price of the plots which were booked by the complainants.

7. Learned advocate for the complainants invited our attention to the citations and rulings that are applicable in the present case. These are as follows,

Filed by the Complainant:

1. Allahabad Vikas Pradhikaran.V/s.Lakshmi Kant Shukla, in Revision Petition No.399 of 1998, decided on 22/02/2002. Reported in III (2002) CPJ 419 (NC).
2. Ghaziabad Authority V/s Yogendra Pal Tyagi, in Revision Petition No.1544 & 2516 of 2002, order dated 25/04/2001 in appeal No.1558/2000 and order dated 16/07/2002 in appeal No.1480/2000 of State Consumer Disputes Redressal Commission, Uttar Pradesh-Decided on 05/01/2011. Reported in I (2011) CPJ 146 (NC).
3. Sunayana Garg V/s ICICI Lombard General Insurance Co.Ltd. & Ors., in Revision Petition No.4668 of 2008 from order dated 04/09/2008 in Appeal No.2080/2007 of UP State Consumer Disputes Redressal Commission, Decided on 05/01/2010. Reported in I (2011) CPJ 150 (NC).
4. Haryana Urban Development Authority.V/s.Rajnish Chander Sharde, in Civil Appeal No.5970 of 1996 Decided on 12/01/2022. Reported in III (2000) CPJ 8 (SC).
5. Navin Khjanna (DR.)& Ors.V/s. Unitech Reliable Projects Pvt.Ltd. & Anr. In Consumer complaint, No.310 of 2014, decided on 11/04/2016. Reported in III(2016) CPJ 203 (NC).
6. M.P.Housing Board & Ors.V/s.B.S.Sharma & Ors.,   AND

Akhil Bhartiya Congress & Ors.V/s. M.P.Housing Board & Ors. In Revision Petition Nos.2627, 2502, 2503 of 2015 against order dated 07/07/2015 passed in first appal Nos.255 and 347/2012 of Madhya Pradesh State Consumer Disputes Redressal Commission, decided on 01/03/2016.

7. M/s.Ambika Land Developers, Nagpur.V/s.Shri Rajesh s/o Jagannath Bobade, in the first appeal No.A/15/399, Delivered by State Consumer Commission, Circuit Bench Nagpur (Arisen out of order dated 08/06/2015 in Case No.CC/14/154 of District Consumer Forum Nagpur.)

8. Learned advocate for the opponent, opposed the contentions of the complainants and submitted that, after booking of the plots by the complainants, they failed to further abide by the payments as per the installment card issued to them. He further submitted that,

1. That, the terms and conditions were already conveyed by printing on the instalment card. Reference page no. 16. But the complainants did not pay in time. and hence only after waiting for 2 years, the bookings were canceled by the opponent on 2^nd October 2014
2.  This complaint was filed by complaints after the limitation period of two years was over and hence this complaint is barred by limitation
3.  Development charges levied by the opponent are as per the sanctioning of NMRDA.
4. In spite of sending 7 reminders, the complainants failed to pay in time and so only after this the cancellation of the booking was done.
5.  While opposing the contention of the learned advocate for the complainants, that the rate of a plot per square foot was initially agreed upon, later on, complainants disputed the rate. According to the opponent the complainants are not entitled to anything.
6.  While inviting our attention to the citation and ruling of Ganesh Lal versus Shyam(2007), the activity of developing plots does not fall within the jurisdiction of the consumer Commissions and thus the complainant should have a filed before Civil Court only.
7.  In view of the stand and discussion above, the opponent prayed for the dismissal of the complaint. 

           In support of his submissions, he filed the following citation.

Filed by O.P.:

Ganesh Lal..V/s..Shyam, Delivered on 26/09/2013 by the Hon’ble Supreme Court of India in Civil Appeal No.331 of 2007.

9. After hearing the arguments advanced by the learned advocates of both sides, we have gone through the documents filed on record by both the parties.  Our observations are as follows,

1. The complainants, husband and wife, booked two plots for residential purpose in 2006, in view of settling in Nagpur in future, after the services of the complainant number 1 are over.
2. After paying the advance consideration for both theplots, as per the agreed upon terms with Shri. Namdev Dhandale, the original developer, and the complainants were communicating with the opponents- developers. 
3. The death of Shri Namdev Dhandale in 2016 and the revision of the land layout after the land was NA-approved, affected further communication between the parties. 
4. Since the developer accepted consideration for the plots and also agreed upon and assured to handover the plots after payment of agreed upon consideration along with the development charges of Rs. 60/- per square foot, the opponents have a responsibility and legal liability to perform their part of the Duty. Since the plots were not handed over as per the agreement between both parties, there is continuous cause of action, thus the complaint is not time-barred. Also, since the claim of the complainants, is above Rs. 20 Lakh, the complaint is within the pecuniary jurisdiction of this commission, as per the Consumer Protection Act 1986.
5. By canceling the booking of plots in the year 2014, in spite of receiving the majority of the consideration and also charging extra development charges which were not agreed upon between the parties is unfair trade practices.
6. In view of the above, we hold that have indulged in unfair trade practices, and in consequence, there was a deficiency in service.  Accordingly, the components are entitled to get relief.

In view of the discussion above, we answer POINT no. 2 as AFFIRMATIVE.

10. AS TO POINT NO. 3: RELIEFS

In view of the discussion above, holding the opponents responsible and liable for deficiency in service and unfair trade practices, the complainants are definitely entitled to relief in the form of getting legal possession of the plots booked by them way back in 2006, after paying balance consideration.  As per the record, the opponents had communicated to the complainants on 21^stJanuary 2010 by letter, about the balance consideration to be paid for both plots, Rs. 28,770/- and Rs. 58,473/-, we find it proper that these amounts need to be paid by the complainants along with minimum interest at the rate of 6% per annum till actual final transaction takes place.  The complainants also need to pay development charges as per the approval of NMRDA.  Accordingly, the development charges of Rs. 60/- per square foot need to be paid by the complainant to the developer.  There is a likely possibility that either the booked plots are not available today or plots may available in other layouts developed by the developer.  At the option of the complainants, they can accept the same or other plots to be handed over by the developer.  If the plots are not available, at the option of the complainants, the price of both the plots the market rate of Rs. 600/- per square foot, is to be paid by the developer to the complainants.  In this case, we specifically direct the developer to pay interest at the rate of 9% per annum if paid within three months or a rate of 12% thereafter. We also hold that it would be proper to award Rs. 2, 00, 000/- to the complainants for mental and physical agony. We answer POINT no. 3 as AFFIRMATIVE.

11. AS TO POINT NO. 4: What Order?

In view of the above discussion, we pass the following order.

ORDER

1. Consumer Complaint is partly allowed with cost quantified to Rs. 50,000/- to be paid by the opposite party to the complainants within a period of four weeks from the date of receipt of a copy of this order.
2. It is declared that the opposite party, Ambika Land developerthrough its partners, has indulged in unfair trade practices.
3. The opposite parties are hereby directed to hand over peaceful legal possession of plots no. 11 B and 30 B as per pre-revised layout or plots no.32 and 30 as per post-revised layout, located at Namdeo Nagar, at Mouza: Lava, i.g.u. 4, Khasra No. 40, Tahsil: Nagpur Gramin, District Nagpur, by accepting the balance sale consideration of Rs.28, 770/- from complainant no. 1 and Rs. 58, 743/- from the complainant no. 2;along with interest @ 6 % per annum from 21.01.2010 (date of issuance of demand letter by opponents) and additionally to pay the approved development charges Rs. 63/- per square foot of the plots,  after receiving the balance consideration the opponents to executethe Sale Deed in favour of the complainants within the period of three months from the date of receipt of this order.
4. Alternatively, if the plots are not available today, at the option of the complainants, opponents are directed to hand over any other two plots of equal size at the same location or any other location, by accepting the consideration as per point no.3 above.
5. Alternatively, if the plots are not available today, at the option of the complainants, opponents are directed to pay to the complainants the price of both the plots as per the market rate, Rs. 600/- per square foot, with interest @ 9 % from the date of filing of the complaint by the complainants before this commission.
6. The opposite parties are directed to pay Rs. 2 Lakh towards the compensation for causing emotional, mental, and physical agony.
7. The above order is to be complied with by the opposite party within the period of three months from the date of receipt of this order, failing which the amounts will carry interest @ 12 % per annum from the date of this order.
8. Copy of this order to be given to all the parties free of cost.