PER DR. S.K. KAKADE, HON’BLE  PRESIDING MEMBER.

1. This is a consumer complaint filed by shri. Rahul Suresh Deshmukh, under S. 15 of the Consumer Protection Act 1986, was aggrieved by unfair trade practice by the Yogda Constructions & Associates and its two partners, who collected a sizable amount of money from the complainant but failed to issue receipts, execute an agreement to sale and further failed to hand over legal possession of the booked flat by executing sale deed.
2. Brief facts for deciding this complaint are as follows:-

The complainant Mr. Rahul Suresh Deshmukh with a view to cater to his residential needs, found an advertisement for a multi-story residential apartment scheme in the month of May 2013. This scheme was proposed by opposite parties (henceforth termed as “Builder-developer”), M/s Yogda Constructions having an office at flat number G-001 Arati Apartments, Plot No. 20, Kotwal Nagar, Nagpur - 440 022; its partners Mr. Sunil Deoraji Jot and Anjali wife of Mr. Sunil Jot. The scheme was “Hiteshree Mansion” proposed to be constructed on plot no. 126, City Survey No. 256, Sheet No. 35, PSK - 9, Mauza Ajni, Ward No. 75, Laxmi Nagar, Nagpur. The complainant came to know about the amenities being provided by the Builder/developers and so contacted the opposite parties. Along with the brochure of the scheme, the opposite parties also showed him the copy of Building Permit No. 92/ BP/ (W) / TP/NMC 213 dated 31^st August 2012 issued by the Assistant Commissioner, zone 1, Nagpur Municipal corporation, Nagpur in respect of the proposed scheme. Upon further deliberations on the subject, on 19^thJune 2013, the Builder / developers offered to sell to the complainant, the proposed Apartment bearing No. 501, admeasuring 64. 37 m2 proposed to be constructed on the fifth floor of the proposed Hiteshree Mansion, for a total consideration of Rs. 72 lakh only. After agreeing to the consideration, complainant remitted the booking advance amount of Rs. 5,00,000/- to the opposite parties’ bank account through RTGS. Since it was agreed upon between the parties that after receiving R.s 30,00,000 /- out of total sales consideration by 15^th November, 2013, an agreement of sale in respect of the aforesaid apartment would be executed and registered. Accordingly, the complainant paid a further amount of Rs. 25 lakh to the opposite parties by RTGS. As per demand from the builder/ developer, a further sum of Rs. 75,000/- was paid by the complainant in cash towards the advance for the registration of the agreement of sale and other miscellaneous expenses. But this advance Rs. 75,000/- was refunded by the Builder/ developer to the complainant by vide cheque no. 27209 and also refunded Rs. 5,00,000/ on October 12^th2013 as the complainant requested the opposite parties to cancel his booking of the subject department since he was frustrated in following the opposite parties continuously to request for execution of the agreement of sale.

3. The opposite parties further on 24^thDecember 2013 approached the complainant and requested him to continue his booking as well as pay the refunded amount of Rs. 5, 00, 000/-. Further, the Builder/ developer promised to deliver the possession on or before 30^th December 2014. Despite further following up with the Builder/developer along with repeated visits to his office the Builder/developer failed to respond to the requests made by the complainant.
4. It is noted that the complainant issued notice to the opposite parties through paper publication as the same could not be served through the post and returned back. In spite of due service of notice, the opposite parties did not appear and were not represented, the matter proceeded ex-parte against opposite parties by order of this commission dated 28^th March 2019. The commission heard the matter finally and passed this order.
5. We heard the submissions and arguments advanced by the learned advocate of the complainant and perused the record. Since this complaint proceeded ex-parte against the opponents, we did not get the opportunity to hear the opponents.  Considering submissions of advocate for the complainant,  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:

REASONS:

6. AS TO POINT NO. 1: “CONSUMER’

Learned Advocate for the complainant Shri. Adv. Dr. Tushar Mandlekar submitted that the complainant had paid an amount of Rs. 30 Lakh in Toto to the opposite parties out of orally agreed upon consideration of Rs. 72 Lakh as consideration towards booking of the apartment in the construction scheme / Project “Hiteshree Mansion” proposed to be constructed on plot no. 126, City Survey No. 256, Sheet No. 35, PSK - 9, Mauza Ajni, Ward No. 75, Laxmi Nagar, Nagpur. Learned advocate invited the attention of the bench that the opposite parties have not issued any receipt and to the certified bank state statement of Bank of Baroda, account no. 06040100017508 of the complainant, reference pages, 26 to 28 of complaint compilation, shows the entry of Rs. 5 Lakh dated 19/06/2013 and of Rs.25 Lakh dated 06/08/2013 paid to Yogda Construction. Since the complainant had paid the consideration amount to the builder/developer, the complainant is a consumer of the opposite parties. Hence we answer the Point no. 1 as Affirmative.

7. AS TO POINT NO.2: “DEFICIENCY”

Learned Advocate for the complainant Shri. Adv. Dr. Tushar Mandlekar submitted that,

1.  the complainant after gathering knowledge of the multistoried residential apartment named “Hiteshree Mansion” that was proposed to be constructed on plot no. 126 City Survey no. 256, sheet number 35 PSK 9, Mauza Ajni, Ward 75, in the Shraddhanand Peth extension layout Lakshmi Nagar, Nagpur approached the opposite parties no. 1 2 and 3 for booking of one apartment. Reference – copy of brochure-document 1-pages 14 to 19. Initially the complaint paid Rs. 5,00,000/- and subsequently paid Rs. 25 lakhs out of orally agreed upon consideration Rs. 72 lakh towards booking of apartment no. 501 admeasuring 64.37 m2 that was proposed to be constructed on fifth floor of Hiteshree mansion. By 15^thNovember 2013, complainant was expecting an agreement of sale in respect of the said apartment, as it was agreed between complainant and opposite party.
2. Learned advocate further submitted that the complainant over a period of time got frustrated by inactions on the part of the opposite parties and therefore in the month of December 2013 requested opposite parties to cancel the booking of the apartment and refund the amount deposited with the opposite parties, i.e.  Rs. 30 lakh. On 24^thDecember 2013 the opposite parties again approached the complainant and requested for continuation of his booking. The opposite parties also further assured the complainant of the delivery of possession and execution of the registered conveyance deed in respect of the subject Apartment on or before 30^th December 2014. The complainant decided to continue his booking.
3. In furtherance of the aforesaid mutually orallyagreed terms, the complainant  paid back a sum of Rs. 5,00,000/- on 27^thDecember 2013 by RTGS and decided to deposit balance amount of Rs. 42 lakhs with due course of time. That the subject apartment of the complainant was not ready by the agreed upon date that is 30^thof December 2014. The complainant repeatedly visited the builder’s office, every time received assurance that the opposite parties will complete the scheme. According to the learned advocate for the complainant, the complainant visited the construction site often but found that the construction work was not being completed and also the opposite parties have not established the fire safety requirements as per national Building Code 2005 and the Maharashtra fire prevention and life safety measures Act 2006.
4. According to complainant’s Advocate it was deliberate and will full inaction on the part of the opposite parties and complainant is deprived of enjoyment of the subject apartment despite investing his hard earned amount of Rs. 30 lakh. As per the submission of learned advocate for complainant the cause of action for the present complete initially arouse on 19^thJune 2013 when after due deliberations with the opposite parties, complainant booked apartment and paid an amount of Rs. 5, 00,000/- to the opposite parties through RTGS. Subsequently the complainant also paid Rs. 25 lakh and Rs. 75,000 /- towards partial registration charges of the agreement to sell.  Looking into to the slow action by opposite parties and very slow progress of the apartment scheme complainant decided to cancel the booking and hence demanded he is money back.
5. According to the learnt advocate the cause of action thereafter again aroused on 24/12/2013 when complainant in pursuance to the requests and assurance of the opposite parties; agreed to retain the booking of the subject apartment. Any further requests and meetings with opposite parties did not help the complainant and finally the complainant preferred this complaint before this Commission.
6. Learned advocate for the complainant submitted that the norms of National Building Code were not implemented in this building. The fire protection system and arrangements not established in the building. Advocate submits that the recommendations granted in respect of the subject building by competent authorities provided for the following fire protection arrangements are yet to be carried out by opposite party. Reference page no.20, document 2, letter from the office of the corporation of the City, Nagpur.
7. Learned advocate for the complainant invited our attention to the sanctioned plans of the building, the brochure of Hiteshree mansion which was printed and distributed by opposite parties and the copy of letter from the office of Chief Fire Officer of the Corporation of the City, Nagpur, issued to the opposite parties with recommendations in respect of adequate and effective installation of fire safety measures in the proposed high rise residential building, letter dated 22^ndMarch 2012.
8. According to Adv. Dr. Mandlekar, the builders / developer, opposite parties, in spite of receiving a letter dated 22^nd March 2012, from the Chief Fire Officer of the Corporation of the City of Nagpur, they have failed to comply the fire safety norms in the building, and failed to get the Fire NOC.
9. As per the provisions of the Development Control Rules 2000, National Building Code 2005 and the Maharashtra Fire Prevention & Life Safety Measures Act 2006, it is a mandate for the builder of a high rise building to meet the fire safety requirements. That though the OP's have completed the structure, the OP's have failed to initiate and complete the fire safety measures in the subject building in which the Complainant has booked and paid substantial amount to the OP's. It is submitted that non-compliance of the recommendations in respect of the fire safety measures, entails action against the builder/owner occupier / chairperson / secretary of the association of the high- rise building, under the NMC and MRTP Act as per Development Control Rules 2000, National Building Code 2005 and the Maharashtra Fire Prevention & Life Safety Measures Act 2006, as also the disconnection of essential supplies. It is submitted that the recommendations granted in respect of the subject building by the competent authority provided for the following Fire Protection arrangements to be carried out by the OP's-viz:

1. Separate duct for electric wiring/ cable at each floor.
2. Stand-by Electric Generator to operate Fire Pumps, life corridor light, and emergency light so as to meet NBC Norms.
3. Overhead water storage tank 25,000 kiters exclusively for firefighting purposes.
4. Fire Pumps of 900 liters/min discharge.
5. Provision of underground water storage with 25.000 capacity
6. Riser System-A 4" GI Pipe (C type) in a vertical position connected with water source through Pump. On each floor 2 ½ female type coupling open with landing valve near stair case.
7. Hose Reel arrangement at each floor connected with riser pipe with shut off nozzle
8. Hose Box-  near each landing containing 2 No's of 15 meters branded pipe with male and female coupling
9. Fire service inlet proposed at the ground floor with riser system connection
10. Courtyard Hydrant-1 no.
11. Manual Fire Alarm System on each floor
12. First Aid Fighting system

• Ground to 5 Floor-4 No. ABC store pressure extinguisher of 5 kg capacity & 2 No. CO2 extinguisher with 4.5 kg capacity on each floor
• Electric Room & Lift Machine Room -2 No. CO2 extinguisher of 4.5 kg capacity for each
• All installations of IS specification

13. Fire Escape Staircase directly connected to ground Fire Escape (M.S. Angles not permitted). Separate entrance for the Fire Staircase remote from the internal staircase.
14. 1 No. Lift with travel distance required for escape during emergency.

X. It submitted that the OPs obliged complete the requirements under permission granted by NMC (Fire Services) on or 21/03/2013. That until this day, the recommendations are compiled by and as result subject building remains to hazardous residential dwelling. It further submitted that the OP's not only failed to adhere to the fire safety mandate and owing to the same until date have not applied for or obtained the Building Completion Certificate & Drainage Completion Certificate from the Building Department of the Nagpur Municipal Corporation.
xi That resultantly the Complainant, inspite of having parted with the substantial amount, is deprived of being handed over of the subject Apartment and the execution of the registered Conveyance Deed in his favor.

 XI. It is further submitted that due to the deliberate and willful inactions on the part of the OP's, the Complainant is deprived of the enjoyment of the subject Apartment despite investing his hard- earned amount of Rs 30, 00,000/- and being agreeable to pay the balance amount at the time of the registration of the Conveyance Deed, as per the pre-agreed terms. The counsel for the complainant submits that had the Complainant invested the aforesaid amount of Rs 30,00,000/-, elsewhere, the same would have until this day earned an analogous amount, as interest. That by virtue of the indulgence of the OPs in Unfair Trade Practice, the Complainant is not only deprived of the enjoyment of subject Apartment, but is also made to suffer the loss of interest that his hard earned amount paid to OPs, would have earned.

12. The Counsel for the complainant argued that due to aforesaid inactions and the indulgence in Unfair Trade Practice on the part of the OPs, the Complainant continues to suffer from severe mental and physical agony and grave financial hardships as also loss of enjoyment of the property. That, therefore, the Complainant qualifies to claim compensation from the OP'S, and the Complainant most modestly quantifies the same as Rs. 15, 00,000/-.
13. The Ld advocate for the complainant has relied on and invited our attention to the various case laws decided by Hon’ble NCDRC and Supreme Court of India, which are relevant and useful to the facts and circumstances of this case:-

1. Saroj Kharbanda VS Bigjo's Estate Ltd {II-2018-CPJ-148 (NC)}
2. Juliet V. Quadros VS Mrs Malti Kumar {2005-(2)-CPR-1 (NC)}
3. Brig. Retd. Kamal Sood VS M/S DLF Universal Ltd. First Appeal NO:-557/2003 {DATE: 20-04-2007 (NATIONAL COMMISSION)}
4. Fortune Infrasturcture VS Trevor D Lima {3-2018-5-SCC-442}
5. P.K.Sharma Vs NBCC (INDIA) PVT LTD. {I-(2020)-CPJ-181 (NC)}
6.  Manudeo Dahiya vs Ansal Buildwell ltd {1-(2020)-CPJ-168 (NC)}
7. Anilkumar Jain vs Nextgen Infracon Pvt ltd {I-(2020)-CPJ-368 (NC)}
8. Chandrashekhar Deshmukh vs Shri Swami Buildcon in CC No:-20/241 {decided on 29-07-2021 by Additional District Consumer Disputes Redressal Commission, Nagpur.}

               We are in agreement of all these judgments and authorities as we feel that the same are applicable to the facts and circumstances of the case as rightly submitted by the counsel for the complainant.

8. In view of the discussion above and the documents on record, our findings and observations are as follows:-

1. The opposite parties, builders / developer, in spite of accepting part consideration of Rs. 30 Lakh, which itself is a huge amount, in the year 2013, have not issued receipts nor executed an agreement of sale of the apartment which is the subject matter of the dispute. This is in contravention of Section 4 [(1)] of Maharashtra Ownership Flats (Regulation of Promotion of construction, sale, management, and transfer) Act, 1963, which says,

        Section 4.{1} Notwithstanding anything contained in any other law, a promoter who intendsto construct or constructs a block or building of flats, all or some of which are tobe taken or are taken on ownership basis, shall, before, he accepts any sum ofmoney as advance payment or deposit, which shall not be more than 20 percent. of the sale price enter into a written agreement for sale with each of suchpersons who are to take or have taken such flats, and the agreement shall beregistered under {the Registration Act, 1908  [and such agreement shall be in the prescribed form.].

        (lA) The agreement to be prescribed and sub-section (1) shall containinter alia the particulars as specified in clause (a), and to such agreement, thereshall be attached the copies of the documents specified in clause (b),

                        (a)            Particulars, -

1. if the building is to be constructed, the liability of the promoter to construct it according to the plans and specifications approved by the localauthority where such approval is required under any law for the time beingin force
2.  the date by which the possession of the flat is to be handed over to the purchaser
3. the extent of the carpet area of the flat including the area of thebalconies which should be shown separately
4. the price of the flat including the proportionate price of the common areas and facilities which should be shown separately, to be paidby the purchaser of flat; and the intervals at which instalments thereof maybe paid
5. the precise nature of organisation to be constituted of the persons who have taken or are to take the flats ;
6. the nature, extent and description of limited common areas and facilities;
7. the nature, extent and description of limited common areasand facilities, if any
8. percentage of undivided interest in the common areas and facilities appertaining to the flat agreed to be sold
9. statement of the use of which the flat is intended andrestriction of its use, if any
10. percentage of undivided interests in the limited common areas and facilities, if any, appertaining to the flat agreed to be sold;

                        (b) Copies of documents:

(i) The certificate by an attorney-at-law or Advocate under clause (a) of sub-section (2) of section 3

(ii) Property Card or extract of village Forms VI or VII and XII or any other relevant revenue record showing the nature of the title of thepromoter to the land on which the flats are constructed or are to beconstructed

(iii) the plans and specifications of the flat as approved by the concerned local authority].

2. Any agreement for sale entered into under sub-section (1) shall be presented by the promoter or by any other person competent to do sounder section 32 of the Registration Act, at the proper registrationoffice for registration, within the time allowed under sections 23 to 26(both inclusive) to the said Act and execution thereof shall be admittedbefore the registering officer by the person executing the document or hisrepresentative, assign or agent as laid down in sections 34 and 35 of thesaid Act also within the time aforesaid officer and admitthe execution of the document, the registering officer shall cause asummons to be issued under section 36 of the Registration Act requiringthe executant to appear at the registration office.

                Section 8. If-

(a) the promoter fails to give possession in accordance with the terms of hisagreement of a flat duly completed by the date specified, or any further date ordates agreed to by the parties, or

        (b) the promoter for reasons beyond his control and of his agents, is unable togive possession of the flat by the date specified, or the further agreed date and aperiod of three months thereafter, or a further period of three months if thosereasons still exist,then, in any such case, the promoter shall be liable on demand (but withoutprejudice to any other remedies to which he may be liable) to refund theamounts already received by him in respect of the flat (with simple interest atnine per cent. per annum from the date he received the sums till the date theamounts and interest thereon is refunded), and the amounts and the interest shallbe a charge on the land and the construction if any thereon in which the flat is orwas to be constructed, to the extent of the amount due, but subject to any priorencumbrances.

                Section 11.

1. A promoter shall take all necessary steps to complete his title and convey tothe organisation of persons, who take flats, which is registered either as a co-operative society or as a company as aforesaid or to an association of flat takers[or apartment owners] , his right, title and interest in the land and building, andexecute all relevant documents therefor in accordance with the agreementexecuted under section 4 and if no period for the execution of the conveyance isagreed upon, he shall execute the conveyance within the prescribed period andalso deliver all documents of title relating to the property which may be in hispossession or power.

3. The opposite party builder has also failed to comply with the provisions of sections4, 8, and 11 of the MOFA Act 1963. The builder is required to “register an agreement to sale” before accepting the advance amount as per section 4 of MOFA Act 1963, which was not done.
4. The opposite party/ builder has also failed in procuring necessary statutory sanctions under MRTP Act 1966, like “Building Completion Certificate, Occupancy Certificate, FIR NOC etc as per provisions of MOFA Act 1963.

        Thus we are of the opinion, that the opposite parties are guilty of deficiency of service and followed unfair trade practice. So we declare that the opposite parties, builders / developers have indulged in unfair trade practice. We answer the Point no.2 as Affirmative.

9. AS TO POINT NO. 3: RELIEFS

In view of above discussion, the complainant who has paid part consideration of huge amount of Rs. 30, 00,000/- (Rs.30 Lakh only) without getting any further service from the builders/ developer, entitled to get relief. The counsel for the complainant on instructions submitted that after nine years of waiting the complainant has suffered a lot and deserves to be compensated in terms of interest on his deposit and other reliefs as sought for. Although the complainant has sought the interest of 24% on the amount so deposited, we are inclined to award rate of interest 12 % per annum, if the complainant chooses the option to accept the refund of the amount paid. A home buyer as a consumer who is deceived by the builders is entitled to get a higher interest rate on amount of consideration paid. The counsel for the complainant has requested that the complainant is interested in getting his refund on the deposit in the amount of Rs.30,00,000=00. Hence we answer Point no.3 as Affirmative.

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

Since the complainant has proved the unfair trade practice of opposite party builders, we pass the following order.

ORDER

1. Consumer Complaint is partly allowed with a cost quantified to Rs. 1,00,000/- (Rs. One Lakh only) to be paid by the opposite parties to the complainant within a period of one month from the date of receipt of the copy of this order.
2. It is declared that the opposite parties no. 1, 2, and 3 have indulged in unfair trade practices and deficiency in service.
3. The opposite parties are hereby directed to refund the amount Rs.30,00,000/- (Rs. Thirty Lakh only) along with interest @ 12 % per annum from the date of the first payment to the opposite parties till the realization of the final refund payment, within one month of the date of the order.
4. The opposite parties are directed to pay Rs. Five Lakh towards the compensation for causing financial hardship, emotional, mental and physical agony.
5. The above order to be complied by the opposite parties no.1, 2 and 3 jointly and severally within the period of one month from the date of receipt of this order, failing which the amounts will carry interest @ 18 % per annum from the date of this order.
6. Copy of this order to be given to all the parties free of cost.

Pronounced on 25^th July 2022