(Delivered on  15/01/2021)

PER SHRI A. Z. KHWAJA, HON’BLE PRESIDING MEMBER.

1          Complainant No. 1- Mrs. Preetu Singh W/o Siddharth Rai and complainant No. 2- Mr. Siddhartha  Rai has preferred the  present  complaint  under section 17 of the Consumer Protection Act, 1986.

2.         Short facts leading to the  filing of the present complaint may be narrated as under:-

            Complainants were  originally  resident   at Jabalpur  but  since  their sister  was residing  at Nagpur they  decided  to settle down  at Nagpur and so also  decided  to purchase one  3 bed room flat at Nagpur. O.P. namely  Niranjan Baburaoji Bisen claims to be a builder as well as land owner and had given  very attractive  advertisement along  with  one  Brochure regarding sale of  flats  with  all amenities . Complainants therefore, decided to purchase one 3 bed room flat bearing flat No. 302, admeasuring 1325 Sq. fts.  in the housing  scheme  named as “Keshavalaya” on plot No. 14 and 15 at Khasara No. 57, Mouza Besa for consideration of Rs. 32,00,000/-. Complainant had contended that  on 11/12/2014 the O.P. executed an  Agreement of Sale  by  accepting  Rs. 2,30,000/- by way of stamp  duty  and registration  charges. The O.P. had also undertaken  to  deliver the possession  of the flat  after  obtaining  Occupation  Certificate  as required from Nagpur  Improvement  Trust. However,  the complainants  found  from  the sanctioned map issued by Nagpur  Improvement  Trust that  the sanction was  granted  only  for 2 bed room . flat  and not for  3 bed room  flat  as  promised  and advertised in the brochure. The O.P. had also falsely   shown an exaggerated   super built up area  as 1325 Sq. fts.  Complainant has  further  alleged  that  the O.P. also did not get his  housing  project  registered with  Real Estate  (Regulation and development ) Act 2016 till 31/07/2017 and therefore, the O.P. cannot  do any transaction  with  the consumers or flat purchasers. The complainant has contended that they had also paid an extra amount as demanded by the O.P. for terrace and parking which was also not permissible. The complainant thereafter issued the letter to the O.P. on 27/10/2016 and demanded  that the amount of Rs. 27,00,000/-  be refunded  with interest  but there was no  response. Complainant thereafter sent a notice on 23/07/2018 which was duly replied. Complainant  has contended that  they have  suffered huge  mental agony and  tension since  the O.P. had  violated  the terms and also not handed over the  possession of 3 bed room flat after obtaining  necessary approvals  and  sanction. The complainants therefore, claimed that the amount of  consideration of Rs. 27,00,000/- which was paid to the O.P. be refunded with interest at the rate of 24%. Complainant also claimed Rs. 10,00,000/- by way of escalation  in the price of the flat  and Rs. 10,00,000/- as punitive damages. The complainant has thus contended that the O.P. has indulged  into  an unfair  trade practice  and so the present complaint.

3.         The O.P. has appeared and filed written version on record. At the outset  the O.P. has contended  that  the complaint is not  maintainable  in the  eyes of law as the complainant  has concealed several  facts. The O.P. had denied  categorically  that  it had promised  to sell  a 3 bed room flat or  that  there was  any mention  of the same in the brochure floated by the O.P. The O.P. has contended that the area and plan of the apartment was made known to the complainant.  The O.P. has taken a plea that certain internal changes came to be made as the complainant   agreed to pay the amount for the same. The O.P. had also mentioned the carpet area, built-up area as well as open terrace. The O.P. has denied that   it had demanded extra consideration for parking and terrace. The O.P. has contended  that  from 2015 onward there was  a low demand  in real estate market and so complainant  themselves  decided  to cancel  the agreement . The O.P. has also taken a plea that  in an around Nagpur no occupancy certificate is obtained. The O.P. had contended  that the  entire consideration  included  the amount  of terrace and parking  and  no separate   amount was demanded  but the complainant  was sending  letters solely  to harass the  O.P.  O.P. has also taken a plea that it was specifically agreed that in respect of any dispute, the services of Arbitrator would have to be obtained. For the   forgoing  reasons  the O.P. has contended that  there was  no deficiency   of service as well as  no unfair trade practice and so the complaint filed  by the complainant  deserves to be dismissed with cost.

4.         We have  heard Mr. Mishrikotkar, learned advocate  for the complainant  and advocate for the O.P. We have  also gone through  the evidence affidavit  as well as the  documents placed  on record by complainants  and O.P. and also  written notes of argument  which were placed on record by both the parties.      

5.         It  is not disputed that  the complainant Nos. 1&2 had purchased  one flat No. 302 in the housing  scheme named  as “Keshavalaya” on plot No. 14 and 15 of Khasara No. 57, Mouza Besa admeasuring 1325 Sq. fts.  for the consideration  of Rs. 32,00,000/-.

6.         It is vehemently  submitted by  Mr. Mishrikotkar, learned advocate  appearing  for the  complainant Nos. 1&2 that  the complainants  had  parted with   huge amount of Rs. 27,00,000/- for  purchase of  the flat on account of promise given by the O.P.- Mr. Niranjan Bisen who was builder and  promoter  that  the  flat was 3 bed room  flat. The complainant has taken a specific plea that  possession  of the  flat was to be delivered  by 30/04/2015 after obtaining Occupancy Certificate  from Nagpur Improvement  Trust. It is submitted by  Mr. Mishrikotkar, learned advocate for the  complainants  that  the O.P. who was builder and  promoter had failed  to obtain Occupancy Certificate  and also did  not get the housing  scheme  duly  registered with Real Estate Regulation  and Development  Authority. It is also submitted by Mr. Mishrikotkar, learned advocate  that  the complainants  to their surprise  found  that  the flat which  was  being purchased by them  was not 3 bed room  flat but was 2 bed room  flat.  Mr. Mishrikotkar, learned advocate  for the  complainants has submitted that  the O.P. had committed breach  of promise made by them prior  to the  purchase of the flat. Mr Mishrikotkar, learned advocate  has drawn our attention  specifically  to the brochure  floated  by the builder and copy of brochure  is also filed  on record. In the light  of this brochure  it was submitted by Mr. Mishrikotkar, learned advocate for the  complainants that  the brochure itself  shows that  the promised  flat was 3 bed room  flat and the  complainants were lured  and attracted  by the said  brochure and accepted word of the O.P. and also  parted with  huge consideration.  On this aspect Mr. Mishrikotkar, learned advocate  has heavily  relied upon the judgment  of the Hon’ble National Commission in the  case of Ashok Kumar Shivpuri Vs. Ashok B. Chajjar , Revision Petition No. 3152 of 2018.  We have gone through the  said judgment . In the said judgment  also the facts were quite similar  and several amenities were  promised  in the brochure  but  did not  figure in the agreement  and so  it was observed  by the Hon’ble National Commission that  the  complainant/ buyer  had purchased  the flat on the basis  of the assurance given  in the brochure  and so there was  deficiency  in  service.   Mr. Samarth, learned advocate for the O.P. has strongly rebutted  this contention and has submitted that  the  brochure cannot  be taken into  consideration  since  on the  brochure itself  it was  specifically  mentioned that  the  brochure  was conceptual  brochure  and no legal document. The learned advocate for the O.P.  has also drawn our attention  to the copy of  agreement  and has submitted that  there was no mention of   the type of flat in the agreement. We have therefore, gone  through the copy of agreement  of sale  and also  description of the  property which  was subject matter of the  agreement . No doubt  there was no mention  in the description that  the flat purchased was a 3 bed room  flat but  here in the present  case the complainants  have come  with a specific plea that they had purchased  the flat on the basis  of assurance given  and promises   made in the brochure  about  3 bed room  flat  and this aspect cannot be  completely  ignored. In view  of the observations made by the Hon’ble National Commission in the case  of Ashok Kumar Shivpuri Vs. Ashok B. Chajjar cited supra. Even otherwise  whenever  the buyer  or purchaser of the flat is  in search  of property he relies  upon the assurances given  and promises made in the  brochure  by the promoter and developer and thereafter enter into transaction. Here also the complainants relied  upon the  assurance  made  in the brochure. As such we  find  force in the contention of the learned advocate  for the complainant.

7.         Secondly, it is submitted by Mr. Mishrikotkar, learned advocate for the  complainants that the O.P. had not performed its part of the agreement  by not  obtaining  occupancy certificate  and by not registering  the society  and following  the regulation  of RERA.  Accoriding to Mr. Mishrikotkar, learned advocate for the  complainants  it was binding  upon the O.P. to obtain the Occupancy Certificate  as well as compliance certificate  before  handing  over the possession of the flat. In this regard he has drawn  our attention  to the copy of commencement  certificate  issued by Nagpur Improvement  Trust. Copy of which  is placed on record. Clause No. 6 of this  commencement  certificate  clearly  mentions that  the building  shall not  be  occupied  unless Occupancy Certificate is  issued by Chairmen  of  the Nagpur Improvement  Trust  in the prescribed  format. Mr. Mishrikotkar, learned advocate for the complainant  has urged  that  by not obtaining  the occupancy certificate  as well as not obtaining  registration  under RERA the  O.P. had committed deficiency in service  amounting  to unfair trade practice. On this aspect  he has relied  upon  the judgment  of Hon’ble National Commission in the case of Proud Nature Buildtech Pvt. Ltd. Vs. Amandeep Sigh & Anr., reported in  IV(2019) CPJ 486 (NC). In that case also  the facts were  similar  and it was observed that  obligation was  on the builder  to obtain the  completion  certificate  and so  implicit before deliver possession of the flat.   Here in the present  case the O.P. has not place  on record any document or material   to show that  the occupancy  certificate  was issued before  delivery  of the possession  to the  complainants.  On the contrary the O.P. has  come with  specific   plea  in the written  statement  that  in around  Nagpur area Occupancy Certificate  is not  insisted  or  obtained.  But this  plea cannot  be accepted at all in view of law laid  down in RERA Act  and rules framed  by the  Nagpur Improvement  Trust which was statutory  organization.  Further the builder was under bounden duty to comply with regulation of  RERA Act which was in force.

8.         Mr. Mishrikotkar, learned  advocate  for the complainants  has submitted that  the complainants  who were   wife and husband  had  invested  and parted  with huge amount of Rs. 27,00,000/- in the hope of getting  the 3 bed room flat but were unable  to take possession for want of  Occupancy  Certificate. Complainants also  cannot  remain idle  for  years  together  waiting for  the builder to obtain the permission or for completion  or  unauthorized  building  and so  were entitled  for refund  of consideration  along with interest. On this aspect  he has relied  upon one judgment  in the case of  Arun Kumar Chowdhury & Anr. Vs G.T. Constructiion  & Ors. reported in  I(2019)CPJ 10B (CN) (WB). We have gone through  this judgment  and in that case  the builder had deviated  from sanction  plan and had failed  to hand over  the possession. Here in the  present  case before us also  the O.P. had accepted  huge amount of Rs. 27,00,000/- but failed to obtain the necessary permission  or Occupancy Certificate  from  competent  authority. Lastly it is submitted by Mr. Mishrikotkar, learned advocate for the complainants  that  as per Government Resolution  dated 20/09/2019 the promoter  was not permitted to advertise , market, book, sell or  offer for sale any plot or apartment  without  registering the real estate project with  the Real Estate Regulatory Authority established under the Real Estate (Regulation  and  Development ) Act, 2016. We have gone through the copy of the said Government Resolution. In the present case  also the O.P. has not  placed  any material  on record  to show  that  his  project  was duly registered  with the Real Estate  Regulatory Authority. 

 9.        Coming to the case of  O.P.,   the O.P. has taken  a plea  say that since there was  low demand  of flat in real  estate  market, the complainants  were interested in cancelling  the agreement  but no documents are placed on record to substantiate this contention.  Mr. Samarth, learned advocate for the O.P. has also taken  a plea that  the complainants were  not  a Consumer  and had booked 3 flats/apartments for making profit only. On this aspect  Mr. Samarth learned advocate for the O.P. has also relied upon  one judgment  of Hon’ble National Commission in the case of Rohit Kapoor Vs. BPTP Ltd. & Ors., reported in I (2018) CPJ 278 (NC). We have gone through  the said judgment.  In that case  family of the complainant   was comprising  husband and wife as well as depending  parents  and children and they had booked  two flats  with  same  builder and in  same colony  and so it was observed  by the Hon’ble National Commission that  the complainants were  making  profits  by selling  the flats  and so they were  not Consumer. However,  in the present  case  before us no such documents  or evidence  has been placed   on record which  could go to point out that  the present  complainant has also purchased  other  flat and so  same  was  for  profit. As such  this contention  of Mr. Samarth, advocate for the O.P. is not tenable  in law and cannot be accepted.  

10.       Sum and substance  of the  entire discussion  is that the O.P.- Mr. Niranjan Bisen  though  had accepted  the amount of Rs. 27,00,000/- by way of consideration   but had failed to  fulfill  their part of  the promise by  not  obtaining  the occupancy certificate  and also not  getting  the scheme  duly registered with RERA which  was mandatory.  The complainants have  contended that  there  was deficiency  in service  on the part of the O.P.  In such  a situation  the complainants   have claimed  that  the  amount of consideration  needs to be  refunded  along with interest at the rate of 18% p.a. and we find  considerable  force in this contention. It is also clear  that  the complainants  who were  wife and husband  were  deprived of possession of  their promised flat  and so had suffered  under gone anguish and mental  harassment  and so they were entitled  for compensation  with interest . We therefore pass the following order.   

ORDER

i.          Consumer Complaint  No. CC/19/78 is partly allowed.

ii.          It  is hereby declared that  the O.P. has indulged  in unfair trade practice.

iii.         The O.P. is hereby directed  to refund the sum of Rs. 27,00,000/- with interest  at the rate of 18% p.a. from the date of payment  till  its realisation.

iv.        O. P. is also directed to pay compensation  for mental agony and  harassment  in  the sum of Rs. 50,000/- and  litigation cost in the  sum of Rs. 10,000/-.

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