Per Shri A.Z.Khwaja, Hon’ble Presiding Member.
1. Appellant M/s.Vatika Vihar Infrastructure Pvt.Ltd. has preferred the present appeal feeling aggrieved by the judgment and order dated 14/03/2016 passed by the learned District Consumer Forum, Nagpur, in Consumer Complaint No.1/2015, by which the complaint filed by the respondent/complainant came to be partly allowed and appellant was directed to pay sum of Rs.1,59,700/- from 04/06/2010 and Rs.1,13,000/- from 09/02/2009 alongwith interest @ 15% p.a. as well as compensation of Rs.15,000/- and Rs.5000/- toward cost of litigation. (The appellant and respondent shall be referred by their original nomenclature).
2. Short facts leading to the present appeal may be narrated as under. :-
3. Complainant Yadavrao Nikhare had purchased plot No.6 and 7 situated at mouza Kolar at the rate of Rs.50/- per sqr. Ft. from O.P.M/s.Vatika Vihar Infrastructure and also entered into an development agreement on 30/02/2008. It appears that subsequently the said plot of land came to be acquired by the Government and so the complainant Yadavrao Nikhare entered into fresh agreement on 07/11/2008 for purchase of plot No.34 at Mouza Belpeth, Tahsil-Umred and plot No.45 at Mouza Wathoda for a sum of Rs.1,74,700/- as per agreement dated 04/06/2010. Complainant has alleged that O.P. namely M/s.Vatika Vihar Infrastructure were the builders and developers and had agreed to convert the same in to non agricultural land and also to carry out development work. Complainant has further alleged that O.P. had given assurances to complete all the formalities and thereafter execute registered sale deed inrespect of both plots namely plot No.34 at Mouza Belpeth, Tahsil-Umred and plot No.45 at Mouza Wathoda but O.P. failed to carry out the development as promised. Complainant has alleged that he has already paid the huge amount of Rs.1,74,700/- and Rs.1,13,000/- but no development was carried out and so there was breach of terms of agreement to sale as well as deficiency in service committed by O.P. Complainant therefore filed the complaint with prayer to direct the respondent to refund sale consideration of both plots alongwith interest @ 18% p.a. and also compensation.
4) After receiving notice O.P. had appeared and filed written version and thereby denied all the contentions. O.P. has contended that the complaint was not tenable in law as the some was barred by limitation. Complainant Yadavrao Nikhare was not at all consumer and there was no relationship of Consumer and Service Provider between the complainant and O.P.. O.P. has admitted that the complainant had booked plot No.34 at Mouza Belpeth but had denied that at it had received the amount of Rs.1,13,000/-, on the contrary complainant had paid Rs.1,00,330/-. O.P. has taken a plea that the complainant had himself not paid the installment from time to time as agreed. Complainant had booked the plot only by way of investment and so complainant was not a consumer and was not entitled for any relief as claimed. Complaint deserves to be dismissed with cost.
5) Learned District Consumer Commission Nagpur recorded the evidence affidavit led by the complainant as well as O.P. Learned District Consumer Commission thereafter went through the documents of evidence and affidavit filed by both parties on record. Learned District Consumer Commission thereafter reached the conclusion that there was deficiency in service as well as unfair trade practice on the part of O.P. and so Complainant was entitled for refund of the amount paid by him. Learned District Consumer Commission therefore partly allowed the complaint and directed the complainant to pay the sum of Rs.1,59,700/- from 04/06/2010 and Rs.1,13,000/- from 09/02/2009 alongwith interest @ 15% p.a. as well as compensation and costs.
6) We have heard Mrs.S.K.Paunikar, learned advocate for appellant and learned advocate Mr.Khadgi appearing for respondent. It is submitted by the learned advocate for appellant that the complaint filed by the complainant Yadavrao Nikhare was not tenable in law as the some was barred by limitation. Secondly it is submitted that the complaint was not entitled for any relief as complainant was himself a defaulter and had not paid the installment as per the agreement. There is no dispute that the complainant had entered into two agreement with the O.P. inrespect of two plots namely plot No.34 at Mouza Belpeth, Tahsil-Umred and plot No.45 at Mouza Wathoda and agreements were executed on 07/11/2008 and 04/06/2010. Mrs.Paunikar learned advocate for appellant has drawn our attention to the copy of the agreement dated 07/11/2008 inrespect of plot No.34. It is submitted by the learned advocate that as per the term of the agreement the complainant was to pay installment of Rs.8,362/- per month for a period of 12 months but the complainant did not pay the amount as agreed and so the complainant was not entitled for the said relief claimed by him. On the other hand, the learned advocate for respondent has drawn our attention to the copies of several receipts which are on record regarding payments made by the complainant Yadav Nikhare from time to time and they clearly go to show that the complainant had paid installments as agreed. It is submitted by Mrs.S.K.Paunikar, learned advocate for appellant that the respondent/original complainant was very much aware that the plots booked by him were infact agricultural lands and yet to be converted into non agricultural land. Learned advocate for respondent has rebutted this contention and has submitted that the complainant has booked both plots bearing Nos.34 and 45 on the basis of assurance given by developers that it will carry out all the development work by taking all necessary permission but the appellant/O.P. failed to honour the commitment. It is submitted that the respondent/original complainant relying on the assurances had parted with huge amount of Rs.1,59,700/- and Rs.1,13,000/-. During the course of argument our attention was also drawn to one letter dated 13/03/2013 issued by the complainant. It is argued by the learned advocate for appellant Mrs.Paunikar that the complainant had himself cancelled the allotment, but we feel that the said letter would not help the case of the appellant as there is ample material on record in the form of copies of receipts so as to show that the complainant had parted with huge amount in the fond hope that the respondent/O.P. will carry out development of plot No.34 and plot No.45. Learned District Consumer Commission Nagpur has also referred to this aspect elaborately and has also given the findings that the complainant had purchased the plot for huge consideration, but the O.P. did not obtain the necessary orders regarding conversion to non agricultural land for the period from 2010 to 2015 and so there was no error in the claims refund of amount. We do not find any error in these findings given by the learned District Consumer Commission Nagpur.
7) It is also submitted by learned advocate for appellant Mrs.S.K.Paunikar that the complainant had purchased two plots not for residential purpose but for commercial purpose. But we find that no evidence has been led by the appellant/O.P. to show that the complainant had purchased the two plots for commercial purpose. Mearly because the complainant Yadav Nikhare had purchased two plots bearing plot No.34 at Mouza Belpeth, Tahsil-Umred and plot No.45 at Mouza Wathoda by paying consideration amount no inference can be drawn that the transaction was a commercial transaction or that the complainant had purchased the plots for commercial purpose. As such this contention raised by the appellant is devoid of any substance. Appellant has also raised contention that the complainant is barred by limitation, but we do not find any substance in the said contention.
8) In the light of the aforesaid discussion we are unable to accept the contention advanced by Mrs.S.K.Paunikar, learned advocate for appellant that the learned District Consumer Commission Nagpur has not properly appreciated the evidence adduced on record or that findings were erroneous. As such the appeal is devoid of any substance and so we pass the following order.
// ORDER //
- Appeal is hereby dismissed.
- Both parties shall bear their own costs.
- Copy of this order be furnished to both parties free of cost.
