Per Shri A.Z.Khwaja, Hon’ble Judicial Member.

1)     

Complainant Mrs.Monika Rakesh Agarwal resident of Nagpur has preferred the present Consumer Complaint Under Section 17 of the Consumer Protection Act, 1986. Short facts leading to the present complaint may be stated as under. 

2)      complainant Mrs.Monika Rakesh Agarwal claims to be resident of Central Avenue Road Nagpur. O.P.No.1 to 3 are the lawful owners and also in possession of land bearing Khasara No.76/1 situated at Mouza- Mahalgaon, Tahsial and District Nagpur. O.P.Nos.1 and 2 also doing business of Builder and Developer and had carved out the  lay out by name ‘Maa Kailasdevi Udyogik Kshetra’ in the said  property in Khasara No.76/1 situated at Mouza- Mahalgaon, Tahsial and District Nagpur  O.P.Nos.1 to 3 had erected banners and hoardings that they were carving out lay out for development of plots and was doing the business of sale of plots to prospective purchasers. Complainant Mrs.Monika Rakesh Agarwal got knowledge about the same and was very much impress by the insurance given by O.P.Nos.1 to 3. Complainant then decided to purchase one plot in Khasara No.76/1 situated at Mouza- Mahalgaon, Tahsial and District Nagpur. O.P.Nos. 1 to 3 introduced O.P.No.4 Shankar Ramjilal Agarwal as Power of Attorney. After detailed negotiations with the O.P.Nos.1 to 4, complainant decided to purchase plot No.4 admeasuring 19400 sq.ft. in the lay out carved by  O.P.Nos.1 to 4. Complainant also entered into an agreement for sale dated 22/11/2010 which was executed by O.P.Nos.1 to 4 and it was further agreed that complainant would purchased one plot                  @  Rs.191/- per sq.ft. Complainant has alleged that he paid the sum of Rs.25,00,000/- to O.Ps. by way of cheque as well as cash and remaining amount was to be paid at the time of execution of sale deed. At the time of agreement it was also agreed that the O.Ps. will carry out measurement of the plot and also lay out the road as promised. Complainant was to pay the balance consideration only after the roads were laid out and other facilities were provided, but the O.P.Nos.1 to 3 failed to act as per the assurance and was avoiding the same on one pretext or the other. Complainant then issued notice on 11/05/2017 calling the O.Ps. to execute the sale deed and also to provide the necessary amenities as promised, but there was no response. Complainant has alleged that O.P.Nos.1 to 4 have indulged in deficiency in service as well as unfair trade practice as defined under Consumer Protection Act 1986 and he filed the present complaint with a prayer to direct the O.Ps. to execute the sale deed of plot No.4 by accepting remaining consideration and  to perform the other part of the contract  or in the alternative to refund the amount with interest alongwith compensation and cost of litigation.

3)      O.P.Nos.1 to 4 have appeared and resisted the complaint by filing written version on record. At the out set  the O.Ps have denied that the complainant was a Consumer. O.Ps have taken a plea that the present Complaint filed by the complainant itself is not tenable in law as there is no relationship of Consumer and service provider between the complainant and O.Ps. O.Ps. have also denied that it has executed an Agreement to sale on 22/11/2010 inrespect of plot No.4 in Khasara No.76/1 situated at Mouza- Mahalgaon, Tahsial and District Nagpur  carved out by M/s ‘Maa Kailasdevi Udyogik Kshetra’  O.Ps. have also denied that it had given an assurance to the complainant as claimed. O.Ps. have taken a plea that agreement to sell is not registered document and the State Commission has no jurisdiction to entertain the complaint. O.Ps. have contended that the complaint was also barred by limitation as it is not filed within a period of two years from the date of cause of action as per Section 24(A) of Consumer Protection Act 1986. For the foregoing reasons O.P.Nos.1 to 4 have claimed that the Complaint is devoid of substance and deserves to be dismissed with cost.

4)      Complainant Mrs.Monika Rakesh Agarwal thereafter led her evidence by way of affidavit and also placed reliance upon several documents namely copy of agreement, agreement to sell, copy of statement of accounts and other documents. O.Ps. in rebuttal have also filed evidence affidavit on record as well as written notes of argument.

5)      We have heard the learned advocate Mr.Sitani for the complainant as well as learned advocate Mr.Tiwari for respondent. It is submitted by the learned advocate for complainant that the complainant had entered into an agreement to sale on 22/11/2010 inrespect of one plot No.4 admeasuring 19400 sq ft. and the same was purchased @ of Rs.191/- per sq.ft. It is submitted by learned advocate that the complainant Mrs.Monika Rakesh Agarwal  had also paid an amount of Rs.25,00,000/- to the O.Ps. by way of cheque as well as cash and the balance consideration was to be paid at the time of execution of sale deed. It is argued by the learned advocate for complainant that the O.P.Nos.1 to 3 were claiming to be Builder and Developer and had promised to carve out layout and prepare  roads after selling the plot No.4.  O.P.Nos.1 to 4 had also promised to provide all other amenities in the lay out to make the layout habitable, but none of the promises were fulfilled by the O.Ps. despite having accepted huge amount of Rs.25,00,000/-. Complainant has also placed on record not only copy of the agreement to sale but also copy of one statement of account and copy of legal notice issued to O.P.Nos.1 to 3. After having entered into an agreement to sale inrespect of plot No.4 had failed to fulfil the promises. O.P.Nos.1 to 4 did not execute the sale deed nor had prepared the layout for development of plots sold by them, thereby amounting to deficiency in service on the part of O.P.Nos.1 to 4.

6)      We have heard the learned advocate for O.P.Nos.1 to 4 and during the course of argument he has raised several contentions. At the outset it is submitted that the complaint filed by the complainant Mrs.Monika Rakesh Agarwal claiming tobe Consumer is itself not tenable in law as the transaction between the complainant Mrs.Monika Rakesh Agarwal  and O.P.Nos.1 to 4 was a private transaction. It is  argued by the learned advocate for O.Ps. that the transaction between them was only regarding simpliciter  sale of one plot and so dispute between the parties was not at all ‘Consumer dispute’ nor the complainant Mrs.Monika Rakesh Agarwal  was a Consumer. Learned advocate for complainant has rebutted this contention and has pointed out from the copy of agreement to sale itself that the O.P.Nos.1 to 4 were not seller of the plots but were infact Builder and Developer and they had also carved out the layout by name ‘Maa Kailasdevi Udyogik Kshetra’. We have also gone through the copy of agreement to sale and same also shows that the O.P.Nos.1 to 3 had promised to prepare the layout. O.P.Nos.1 to 3 have specifically assured in the agreement that they will be responsible for preparation of layout and also making available facilities. As such the contentions of learned advocate for O.Ps. that the transaction in question was regarding simpliciter sale of plot of land is devoid of any substance. Bare perusal of the copy of agreement to sale shows that O.P.Nos.1 to 3 were Builder and Developer and had sold the plot to carved layout and to prepare roads which implies inter-alia that they were rendering Services to the complainant who was admittedly a consumer.

7)      During the course of argument the learned advocate for O.Ps. have also placed reliance upon the judgment in the case of Ganesh Lal........V/s..........Shyam, reported in (2014) 14 SSC 773 and Prakash Govind Mandore............V/s........Shrikant Ramesh Pande, of Hon’ble National Consumer Commission in RP No.112/2013. We have gone through both these judgments. In the case of Ganesh Lal......V/s......Shyam (cited supra), it was observed by the Hon’ble Supreme Court that sale of plot of land simpliciter does not involve Consumer transaction. We have gone through both these judgments on which reliance is  placed by learned advocate for O.Ps., but in the case of Ganesh Lal......V/s......Shyam (cited supra) the transaction of sale of plot of land simpliciter but in the present case before us from the  recitals in the agreement to sale it is clear that the O.P.Nos.1 to 4 were Builder and Developer and had sold plots out of one lay out which was carved out and had also assured to give necessary amenities. In view of the same as referred earlier, the contention of the learned advocate for O.Ps. on this count cannot be accepted.

8)      Secondly, it is submitted by the learned advocate for O.Ps. that since the agreement was entered into on 22/11/2010 and complaint was filed on 06/06/2017 the complaint was barred by limitation as it was not filed within a period of two years from the date of cause of action.  But now it is well settled by catena of decisions that in case of deficiency in service relating to handing over the possession and providing necessary amenities there would be continuous cause of action. Here in the present case the complainant had also parted with huge amount of Rs.25,00,000/- and thereafter was waiting for possession and execution of the sale deed as well as providing of amenities and so it cannot be said that the complaint was barred by limitation.

9)      We have gone through the copy of agreement of sale dated 22/11/2010 it shows that the complainant Mrs.Monika Rakesh Agarwal  had not only purchase the plot No.4 @ of Rs.191/- per sq.ft. but thereafter had also paid sum of Rs.25,00,000/- out of which an amount of Rs.1,00,000/- was paid by cheque on 23/11/2010 and an amount of Rs.24,00,000/- was paid in cash.  But still the complainant was waiting for development of plot and thus its amounts to deficiency in service and hence we pass the following order.

          //ORDER//

i.        Consumer Complaint is hereby partly allowed.

ii.       O.P.Nos. 1 to 4 are hereby directed to execute the sale deed of plot No.4 admeasuring 19400 sq.ft. in property bearing Khasra No.76/1 situated at Mouza- Mahalgaon, Tahsial and District Nagpur, after accepting the balance consideration within a period of six months from the date of receipt of order.

iii)     O.P.Nos. 1 to 4 are hereby further directed to hand over the vacant possession of plot No.4 after preparing layout with a period of six months.

iv)   In alternative in case O.P.Nos.1 to 4 are unable to execute the sale deed within six months then O.P.Nos.1 to 4 are hereby directed to refund the sum of Rs.25,00,000/- to the complainant along with  interest  at the rate of 12% p.a. from the  date of payment  till  the date  of  realization of the same.

iii.      O.P. Nos. 1 to 4 are hereby also directed to pay to the complainant  compensation  of Rs.1,00,000/- towards  physical and mental  harassment caused to the  complainant.

iv.      The O.P.Nos. 1 to 4 are hereby also directed to pay a litigation cost of Rs. 25,000/- to the complainant.

v.       The payment of the amount in compliance of the above order shall be made within a span of three months from the receipt of the copy of the order by the O.Ps.

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