1.Both these complaints are being disposed of by this common order as common question of law and facts are involved in them.

2.The common case of the complainants, as set out in both the complaints, in brief is that the complainant Nandlal Krishnani who is complainant in complaint bearing CC No.13/12, is the brother in law of the complainant Mrs. Sapna Krishnani, who is complainant in complaint bearing CC No.13/13. The Opposite Party (for short OP) No.1 is a company, who is engaged in development of property and making construction. The OP Nos. 2 to 6 are its directors. The OP Nos.1 to 6 started development of property bearing plot No.12, situated at Mankapur locality of Nagpur. Acting upon the representation made by the Ops. both the complainants booked flat Nos.601 and 602 on the sixth floor of the building in their scheme named and styled as “Pyramid City” and each of the complainant paid Rs.4,40,000/- in installments of which receipts were also issued by the Ops. However, thereafter, the complainant learnt from other prospective purchasers of the flat under that scheme that the Ops have got revised the plan from the sanctioning authority and no sanction is granted for construction of 6^th floor of the said building. They also learnt that the Ops have abandoned the construction of 6^th floor, but they gave no intimation about the same to them though they had approached to Ops for payment of the balance consideration.  Ultimately OPs said that they have cancelled the booking of the flat as the revised sanction map was only upto the 5^th floor. Thus, the Ops have cheated the complainants by accepting the aforesaid amount for two flats on 6^th floor of the said building. The complainants, therefore, served legal notice dated 14/11/2012 to the Ops to which they gave false reply on 13/12/2012. The complainant’s advocate then sent rejoinder to the said reply of the Ops. and cheques were also returned which were sent by the Ops to them towards refund of the aforesaid amounts. Thus, alleging deficiency in service on the part of Ops, the complainants filed two separate complaints and made common prayer that the Ops be directed to accommodate them in the said scheme on any other floor on the same rate, which was agreed upon at the time of booking of flat No.C-601 & C-602 or accommodate them in an adjacent scheme by allotting the same area of the flat at the same rate or in alternative reimburse them the amount of Rs.4,40,000/- each, alongwith interest @ 18% p.a. from the date of booking till actual payment and further to pay to each of them compensation of Rs.10 lacs on account of mental agony and harassment and further to pay to each of them Rs.25 lacs on account of escalation/ enhancement of the market price / loss to the complainants and further to pay to each of them cost of Rs. 50,000/-.

3. The Ops. filed their common written version in each of the aforesaid complaints and, thereby resisted the complaints. They raised preliminary objection to the effect that as there is no agreement between them and complainants, the complainants are not the consumers and they are not the service providers and hence the complaints are not maintainable in law. They further raised a law point that as it was a contingent contract and as the sanctioning authority i.e. the Nagpur Improvement Trust (for short NIT) has not granted sanction for 6^th floor of the building, the said contract can not be enforced in law. They admitted that they received from each of the complainants Rs.4,40,000/-. However, according to their defence, the complainant had paid the said amounts at their own risk subject to sanction to be granted by the NIT about 6^th floor construction and hence they had refunded the said amount to both the complainants after NIT did not grant the said sanction. But the said amounts were returned by complainants. They also submitted that they had offered alternate accommodation at the prevailing market price to the complainants but they did not accept the same also. There was no agreement in between the parties in respect of flat Nos.601 & 602. They, therefore, denied that they rendered deficient service to the complainants and submitted that both the complaints may be dismissed.

4. The complainants filed rejoinder in view of the aforesaid written version filed by the Ops. They submitted in their rejoinder that the aforesaid defence taken by the Ops is an afterthought. They are covered under the definition of the “consumer” and the Ops have rendered deficient service to them. They denied that it was contingent contract between both the parties. They also denied that the alternate accommodation was offered by the Ops to them. They also denied that they had paid money to the Ops at their own risk subject to grant of sanction of the 6^th floor by the NIT. They submitted that there is no question of making payment for alternate flats, at prevailent price. The OPs can not ask for the premium of their own fault. The Ops accepted amounts for the flat which were shown on 6^th floor.

The Ops also filed reply to the said rejoinder of the complainants and denied the allegations made in the said rejoinder and reiterated their case as set out in their written version.

5. The complainants filed their own affidavit, copies of the receipts of payments issued by Ops, notice issued by them to the Ops, reply given by the Ops to that notice and their rejoinder to that notice.

6. The Ops filed their evidence affidavit and copies of the list of the prospective purchasers of the flats and the map of the building sanctioned by the NIT.

7. Learned advocates of both the parties filed their respective written notes of arguments. We have also heard them and perused the pleadings of both the parties, their evidence affidavits, the documents and the written notes of arguments filed by them.

8. Following issues arise for our consideration. We record our findings against them for the reasons given thereunder…

Sr.No.                             Issue                                                         Finding

1. Whether the complainants are covered under the

   definition of Consumers as  given under in Section

        2(1)(d) (ii) of  the Consumer Protection Act. ?                   Yes

2. Whether the Ops have rendered deficient service

             to both the complainants as alleged in the respective

             complaints ?                                                                        Yes

3. Whether the complainants are entitled to the As per

            reliefs sought for in the respective complaints ?       final order below

    

   REASONS

   9. The learned advocate of the complainants submitted  that though there is no agreement in writing in between complainants and the Ops, the receipts of payments filed on record by the complainants are not disputed and they are very specific and they prove that each of the complainant paid total amount of Rs.4,40,000/- to the Ops towards the part consideration of two flats bearing Nos.C-601 & C-602 only, which were on the 6^th floor of the building to be constructed under the scheme namely “ Pyramid City” by the Ops. He also submitted that there is no question of contingent contract when the receipts of payment did not show that the said payments were made subject to grant of sanction of the 6^th floor by the NIT.

   10.On the other hand, the leaned advocate of the Ops submitted that as the complainants themselves insisted for getting flat on the 6^th floor and as they had knowledge about no grant of sanction by the NIT for the same, the Ops can not be held responsible for subsequent non granting sanction by the NIT. He, further submitted that there was no concluding contract in between both the parties so far as flats on 6^th floor is concerned and so, the agreement was contingent in nature depending on the sanction which would be granted in future by the NIT and as the NIT subsequently has not granted the sanction, the contingent contract can not be enforced. He also submitted that even otherwise the Ops refunded the amounts paid by the complainant but they refused to receive the same and that the Ops had also offered flat Nos.A-503 & B/502 on the 5^th floor at the prevailing market price but the complainants did not accept the said offer of the Ops. Thus, he requested that as the complaint is baseless, it may be dismissed.

   11. We find that both the complainants are the consumers as defined under section 2(1)(d) of the C.P.Act since each of them paid Rs.4,40,000/- to the Ops who are the builders and the Ops had agreed to provide them respective flat after making full construction of the building. We find no substance in the contention of the Ops that complainants are not covered under the definition of consumers given U/s 2(1)(d) of the C.P.Act.

   12. Admittedly, each of the complainants paid Rs.4,40,000/- in installments to the Ops and they had also issued separate receipts for the same. The perusal of the said receipts shows that those payments were made against part of price of  two flats bearing Nos.C-601 & C-602 on the 6^th floor of the apartment called Pyramid City. None of those receipts shows that those payments were received by the Ops subject to grant of sanction by the NIT for making construction of those flats on 6^th floor of the said apartment. No explanation is given by the Ops why no such specific endorsement about conditional acceptance of the amount was made on those receipts.

   13. The Ops have also not explained as to why the agreement was not entered into between both the parties showing that it was contingent contract depending on the grant of sanction of 6^th floor construction by the competent authority i.e. NIT. In our view, when such huge amount of  Rs.4,40,000/- was received from each of the complainant and when the receipts issued for the same by the OPs specifically show that they were relating to two flats bearing Nos.C-601 & C-602 of the building, it was incumbent on the Ops to reduce into writing the said contract to show that it was a contingent contract. In our view, when alleged contingent contract was not reduced into writing, we are not inclined to accept the oral submission made by the Ops to that effect.

   14. It also appears to be highly improbable that any person would pay such huge amount under any such contingent contract. Had the Ops informed the complainants that there is no sanction for constructions of the flat on the 6^th floor of the building, they would have waited for grant of sanction and they definitely would have not paid any such huge amount to the Ops in such a case till such sanction is granted. Therefore, we are of the considered view that the defence taken by the Ops about contingent contract is an afterthought and it is made only to avoid their responsibility. Therefore, we hold that the complainants have proved that they paid Rs.4,40,000/- each to the Ops towards part of price of the flat Nos. C-601 & C-602 only and the Ops had agreed to make construction of both the said flats on the 6^th floor of the building and, subsequently, those flats could not be constructed for want of sanction from the NIT. It is not disputed that the Ops wanted to refund the said amount to the complainants but the complainants refused to accept the same. However, we find that since no sanction of the construction of 6^th floor was granted by the competent authority, the direction can not be given to the Ops to make construction thereof. Therefore it is necessary that direction be given to refund said part of consideration to the respective complainants with the proper rate of interest.

   15. Moreover, it is seen that the Ops had also offered flat Nos.A-503 & B/502 on the 5^th floor instead of flat Nos. C-601 & C-602 at the prevailing market price but the complainants did not accept the said offer of the Ops. In our view, as there is no breach of contract on the part of complainants, they can not be compelled to accept the offer given by the Ops particularly when the Ops wanted the price of the alternative flats at the prevalent market  rate and not the price which was initially agreed while accepting the aforesaid part of consideration in the year 2010. It was incumbent on the Ops to offer the other flats of same specification on the 6^th floor of the same building at the same price which was fixed in the year 2010. Therefore, the complainants have rightly refused to accept the said offer given to them by the OP.

   16. We are also of the view that in addition to refund of Rs.4,40,000/- to the complainants with interest, they are also entitled to the compensation towards escalation of the price of the flats from the date of booking of the flats till filing of the complaint. In our view, the compensation of Rs.10   lacs to each of the complainant on this count would be just and proper. Moreover, we also find that compensation of Rs.25000/- to each of the complainant on account of mental harassment is also to be awarded. They are also entitled to cost of Rs.5000/- to each of the complainant.

   17. Thus, we hold that the Ops have rendered deficient service to both the  complainants and they are entitled to aforesaid reliefs. Accordingly the aforesaid issues are decided in the affirmative and the following order is passed.

   ORDER

4. Both the complaints bearing Nos. CC/13/12 & CC/13/13 are partly allowed as under..

5. The OP Nos. 1 to 6 jointly and severally shall refund to each of the complainant Rs.4,40,000/- with interest @9% p.a. from the date of each complaint i.e. 4.3.2013 till their full realization by each of the complainant.

6. The OP Nos. 1 to 6 jointly and severally shall pay to each of the complainant compensation of Rs.10,00,000/- towards loss sustained by them, within a period of one month from the date of this order and in case of default, the said amount shall carry interest @9% pa. from the date of this order i.e. 22/1/2015 till realization of that amounts by the complainants.

7. The OP Nos. 1 to 6 jointly and severally shall pay to each of the complainant Rs.25,000/- as compensation towards mental harassment and Rs.5000/- towards cost of each of the complaint.

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