(Delivered on 31/03/2017)

Per Mr. S.B. Sawarkar, Hon’ble Member.

1.      The complainant – Mr. Abhay Sharad Coudhary power of attorney holder of  his brother Mr. Anand Sharad Choudhary filed complaint on his behalf about the transactions  done by their father  Sharad Choudhary under section 12 of the Consumer Protection Act,1986.

2.      The complainant submitted that he entered into  an agreement    dated 22/09/2009 to purchase a flat No.  in the scheme  floated by the O.P. (short  for opposite  party ) No.  through their directors  O.P. Nos. 2&3.

3.      He paid  Rs. 40,00,000/- as per the schedule . However, the O.P’s. avoided  to execute the sale deed and  provide the possession of that flat. On the  insistence of the complainant,  with  consent,  both  complainant and O.Ps. entered into an agreement  to cancel the said  agreement  and the O.P.  offered to return  the amount  paid,  with interest totaling to Rs. 48,00.000/- to the complainant. Thus   a deed of cancellation was executed on 16/08/2008 in compliance of which  the O.Ps.  provided  three cheques costing Rs.10,00,000/-, Rs.18,00,000/- and Rs.20,00,000/- to the complainant.

4.      The complainant  when presented the cheques  they got dishonoured. Hence,  the complainant   issued a notice  to O.Ps. However, the complainant  and the O.Ps.  further  entered  in the agreement  at the behest  of the O.Ps.  to purchase another flat vide No. 608, in the same scheme building, which was costing Rs.62,00,000/-. The complainant submitted that the O.Ps. agreed to appropriate  the  decided amount of  pay back  of Rs. 48,00,000/- in the purchase of new flat and  it was decided that the complainant would  pay the remaining amount of Rs. 14,00,000/-. Thus  the complainant  again paid  Rs. 13,00,000/-  by two cheques and  a cash of Rs. 1,00,000/-.

5.      The complainant  further complained that  even after  the complete payment of Rs. 62,00,000/- the O.Ps. failed to execute  the sale deed  of flat No. 608 which was agreed to be purchased by  an agreement of sale executed on a Notarized  paper  dated 22/04/2013.  The O.Ps. assured to execute the sale deed by  Oct. 2013.  However, the complainant  learnt that  the flat in question  was sold  by the O.P.  to some another person.

6.      Further, the complainant submitted that the O.P. No. 2 agreed and issued a letter dated 22/11/2013 acknowledging  his liability to pay  the amount of  Rs. 62,00,000/-  to the complainant with interest at the rate of 12% from 22/09/2012 and further issued  three cheques vide Nos. 000069, 000070, 000071 amounting to Rs.25,00,000/-, Rs. 25,00,000/- and Rs. 20,00,000/- respectively.

7.      However,  when the complainant  represented  the cheques for encashment  they all got returned  dishonoured.  The complainant therefore issued a notice on 25/04/2014 received by the O.Ps. However,  the  O.P and the complainant reentered  into  a memo of understanding wherein  the O.P. promised to make the entire payment of Rs.85,00,000/-, till 31/07/2014 or execute the sale deed  as per the  memorandum of understanding dated 04/07/2014.

8.      However,  thereafter in spite of  continuous  pestering   by the complainant,  the O.Ps.  have neither  executed  the sale deed  nor have refunded  the amount  as agreed.  Hence,  the complainant  claiming  deficiency in service and the cause of action  arose   from time to time,  filed a complaint  with a prayer to direct the O.P Nos. 1 to 3 to execute  the sale deed of the flat No. 608. In case of  failure  as alternative to provide the  complainant  the refund of Rs. 85,00,000/- with interest at the rate of 18% p.a. from the date of complaint till final realization  with  Rs. 10,00,000/- towards mental agony  suffered by the complainant .

9.      The complainant  filed  1) Power of attorney, 2) Agreement of sale dated 22/12/2009, 3) The deed of cancellation of agreement , dated 16/08/2012, 4) Sale deed  on  Rs. 500/- stamp paper  dated 22/04/2013, 5) Letter of assurance  dated 22/11/2013 signed by the Director of the  O.P. No. 1, 6) A notice dated 25/04/2014, 7) A memorandum of understanding dated 04/07/2014 on the stamp paper of Rs. 500/- giving assurance  to  execute the sale deed of the flat No.407 and in case of  failure  to return  Rs. 85,00,000/- with interest at the rate of 18% p.a.  8) Copies of the cheques  and further  filed evidence  on affidavit.

10.    On admission,  the Commission issued notice to O.P. Nos. 1 to 3 on the address given by the complainant in the complaint . The acknowledgement of service of notices have been  received back  with acknowledgement signed upon them. As  the notices were served but  the O.P. No. 1 to3 remained absent. Hence, they were declared exparte and the complaint was proceeded further.

11.    The advocate for the complainant  Smt.  Ketaki Jaltare reiterated  the contentions  of the complaint  and  submitted that  the complainant  being a  layman & continued to pay the cheques for the purchase of the flat. However,  he was not  given the flat by the O.Ps. and the money has also not  been returned. As the  O.Ps. remained absent after service of notice,   no counter submission  regarding  the complaint is made. Thus she requested that complaint may be allowed.   

12.    We considered the contentions of the complainant. The issues which  stand before us for consideration are as follows. We also record our findings  against  each of them, for the reason given next those under.

                                                               REASONS                                           

13.    We find that  the  complaint went  unchallenged  as  the O.P. did not remain  present in spite of  receipt of notice and also did not  file any  written version  to raise any  defence.

14.    The complainant has filed  the copy of the registered  agreement to sale  of  flat No. 407 that  he booked  in the scheme  of  the O.P.  Thereafter,  the O.Ps.  have continued  to provide  the cheques  accepting the  rate of interest as is  demanded by the complainant and the  cheques have also got dishonoured. However, the complainant  without  taking any legal action  or  recourse to  the  negotiable  instrument Act,  also  paid him the additional amount  till the final amount  which came to  Rs. 85,00,000/- for which  the complainant has filed  Memorandum of Understanding            (MOU) prepared on  a stamp paper of Rs. 500/- on which there appears  the signature of  O.P. No. 1 through O.P.No. 2.

15.    It is the  last document dated 04/07/2014 that has taken place between the complainant and the O.P. in which  both the parties  appear to have  signed an agreement  permitting  the complainant to take  legal action  if the  amount of Rs. 85,00,000/- is not returned till 31/07/2014.  The MOU also shows that  the flat No. 407 is in the possession  of the complainant and  the O.P.  will execute the registered  sale of that property.  However, we find that  the agreement to sale of  flat No. 407 is already  cancelled  by both parties on  22/09/2009 against which the O.P’s. has agreed to return  Rs. 45,00.000/- to  complainant. The complaint & evidence brought on record by complainant  went unchallenged & hence,  that  deserves to be believed.  

16.    We find that  the complainant in spite of entry  in the MOU about the possession  of flat No. 407 has  prayed for  sale deed of flat No. 608. The  complainant made  a positive submission   that   he learnt  that the flat is sold.  We also find that  the complainant  has been giving  the cheques  without  any information regarding the procedure of  payment  of money to the  O.P. like  deduction and deposition of TDS, payment of  service tax and  VAT. Thus  we find that  the prayer  of the  complainant  in view of the observation made above deserves a partial  and practical  acceptance.  We  are therefore inclined to  partially  allow the complaint  by directing the O.P.  to  provide  the sale deed  and possession of flat No. 608 in the scheme and  in alternate to provide  the  decided amount of Rs. 85,00,000/- with  interest at the rate of 18% p.a. from the date of the complaint and to pay compensation  of Rs. 25,000/- for physical and mental  harassment  & cost of Rs. 10,000/-.

          Hence, the order below by replying  the issues considered by us  as above.

ORDER

i.        Complaint is  partly allowed as under.

ii.       The opposite party No. 1,2&3 ,  severally or together , to provide  the possession  and  registered sale deed  of flat No. 608 to the  complainant  in the span of  30 days  from the  date of the receipt of copy  of this order.

iii.      The complainant shall bear expenses  required for execution of registration  of the sale deed.  

iv.      In alternatively  opposite party Nos. 1,2&3 severally or together   to refund  an amount of Rs. 85,00,000/- with interest  at the rate of18% p.a.  from the date of the complaint  till final payment to the complainant.  

v.       The opposite party Nos. 1,2&3 severally or together  to pay compensation of Rs. 25,000/-  for physical  and mental  harassment  & cost of Rs. 10,000/- to the complainant.

vi.      Copy of the order be sent to both  the parties, free of cost.