1. Aggrieved by failure to execute the sale deed of the plots for which the complainant Smt. Urmila Prakash Gupta from Nagpur, by the opposite party-Sweety Housing Agency, through its proprietor Krishnarao AshokraoTayade from Nagpur,even after the payment of consideration to the builder, the complainant filed the present complaint before this Commission with a prayer to direct the opposite party to award compensation along with the interest till actual realization.
2. Brief facts for deciding this complaint are as follows

The complainant, Smt. Urmila Prakash Gupta, the resident of 54, Kachimet, Near Postal Colony, Amravati Road,Tehsil, district Nagpur, was approached by the proprietor of the Sweety Housing Agency, Shri. Krushnarao Ashokrao Tayade, offering the sale of a plot. Relying on the representations by Shri. Tayade, who convinced the complainant that he has been given the power of attorney by the original land owner of the property and hence getting impressed by his representation, booked plot number 7, admeasuring area of 3000 sq. ft. in the layout plan, proposed to be developed at Mouza Surabardi bearing Khasra No. 48/1, P.H. No.5-A at Gram Panchayat Surabardi, Tahsil, and District Nagpur, for a valuable consideration amount of Rs. 3,30,000/- and she paid Rs. 70,000/- towards the part payment by cash on 7^thJanuary 2010. The opposite party executed an agreement to sell in her favour on 16^thJanuary 2010 and duly acknowledged the receipt of payment of Rs. 70,000/-. It was agreed upon by both parties that the balance consideration is to be paid by the complainant to the opposite party at the time of execution of the sale deed. The complainant made payments to the opposite party from time to time thereafter till the 1^stof March 2013, a total amount of Rs. 12,80,000/-.After the execution of the agreement to sell plot no. 7, the opposite party o. 7, accepted payments from the complainant from time to time. Meanwhile, the opposite party convinced the complainant that he could further arrange additional plots that can be sold to the complainant, and thus by accepting Rs. 60,000/- additionally, the Agreement of sale dated 22^nd October 2010, was executed for plot no. 6. Further the opposite party offered plot numbers 4, 5, 8, 9, 10, and 11 in place of plot no. 6 and 7 for a total payment of Rs.  8, 30,000/-. Thus the total amount that was paid to the opposite party by the complainant was Rs.  12, 80,000/-. Even after a repeated request by the complainant, the opposite party failed to execute the sale deed in favour of the complainant with respect to the plots that were agreed upon.

3. Later on, the complainant came to know that the opposite party has no title and interest over the said property and he was playing fraud and misrepresentation, that he cheated the complainant and extracted the amount. Since the opposite party expressed his inability to execute the sale deed, the complainant asked for a refund of the money.The opposite party paid some amount in two cheques but on depositing in the bank both the cheques returned back with the endorsement of “fund insufficient”.  The complainant filed a police complaint after learning that the land was under litigation ever since 2010 and regular Civil Suit no. 714 / 2010 is pending before Civil Court at Nagpur. The complainant further filed this complaint before this Commission seeking a refund of the amount paid to the opposite party, along with compensation for the unfair trade practices.
4. The opposite party defended the complaint by filing a reply-written statement.After completion of the pleadings, the matter is taken up for a final hearing. 
5. We heard the rival submissions and arguments advanced by learned advocates of both parties and perused the record.Considering submissions of advocates for both parties,  record, and scope of the complaint, the following points arise for our determination, and our findings thereon are noted as against them for the reasons herein below:

POINTS:

REASONS:

6. AS TO POINT NO. 1: “CONSUMER’

Learned Advocate for the complainant Shri. Kulkarni submitted that the opposite party Sweety Housing Agency through its Proprietor Mr. Tayade, was paid consideration Rs. 12,80,000/- for the purchase of the plots by the complainant, the details of which are as follows,

On perusal of the record, the complainant has filed the copies of receipts, ref. pages no.4 to 38. In view of this, since the complainant has paid the consideration to the opposite party for the purchase of plots, the complainant is a consumer, as per the Consumer Protection Act 1986. We answer POINT no.1 as AFFIRMATIVE.

7. AS TO POINT NO.2: “DEFICIENCY

Learned advocate Mr. Kulkarni submitted that the complainant is a lady who booked flats with the opposite party, after getting convinced by the representation of the opposite party that he is duly authorized to sell the plots, by the land owners.  The opposite party executed three different agreements, after accepting money from the complainant, each time changing the number of plots that are available for purchase.  Thus, the complainant believing in the opposite party, went ahead with the transactions, without knowing that the opposite party did not have the required authority.  Further, according to the learned advocate for the complainant,

1. Even after the acceptance of the consideration for the sale of plots, Mr. Tayade did not execute the sale deeds for the plots mentioned in the agreements. Referring to pages, no.139-144, is the first power of attorney dated 14^th March 2008, as shown by the opposite party is placed on the record by the complainant.
2. That, the complainant, later on, came to know that there was a suit pending before the District Court between parties, one was filed by the owner of land no. 714/ 2010 and the other 486/ 2016 filed by the opposite party which was dismissed in default by the concerned court.  Thus, the opposite party was not in a position to execute the sale deeds.  But for the transactions that happened between the complainant and the opposite party, Mr. Tayade by misrepresenting to the complainant that he has the power of attorney.
3. That, the opposite party refunded Rs. 7 lakh by cheques dated 15^thJune 2015 and 16th July 2015, when the complainant asked for a refund.  The cheques were bounced for insufficient balance.
4. There is another power of attorney available dated 26^thJuly 2018,  that was executed in favour of the opposite party by the land owners including the legal heir of one of the land owners Smt. Vatsabai, was filed by the opposite party, during the course of the proceedings of this complaint.
5. That, the opposite party had collected the amount from the complainant but did not execute the sale deed for the plots agreed upon as per the agreement of sale executed between both parties. In view of this the complainant prayed for a refund of the amount- a consideration that was paid to the opposite party.  Since the opposite party collected the amount but it did not further execute the sale deed as per the agreement of sale, the opposite party was guilty of deficiency of services and unfair trade practices.
6. Learned advocate for the complainant prayed for a refund of the amount- a consideration which was paid to the opposite party Rs. 12, 80,000/- alongwith interest at the rateof 18% per annum.

8.  In support of his contentions, the learned advocate for the complainant referred to the following citation.

1. M/s.Narne Construction Pvt.Ltd. and etc.......V/s......Union of India and others, reported in AIR 2012 Supreme Court 2369.

9. The learned advocate for the opposite party, Mr. Rahate, opposed the contentions of the complainant in this complaint.  According to the learned advocate for the opposite party, the complainant is not a consumer, since, she booked more than one plot and hence her prayer cannot be granted.  Further, he submitted that,

1. There is no pecuniary jurisdiction to this State Consumer Commission, as the prayer is for a refund of the amount which is Rs. 12,00,000/-.
2. That, the complainant is not a consumer as she has purchased plots by paying the booking amount since the transaction between the two parties is nothing but simply- sitter sale of plots only, and the same was for the purpose of investment.
3. That the notice sent by the complainant clearly mentions, that“the purchase of plots by the complainant was for supporting her and her family in due course”.  Reference page no. 45 of the complaint compilation.
4. In view of the contentions raised by the opposite party against that of the complainant, the learned advocate for the opposite party prayed for dismissing the complaint byimposing a heavy cost.

10. In support of thecontentions raised by the opposite party, the learned advocate for the opposite party, referred to the following citations.

1. Ambrish Kumar Shukla.......V/s.....Ferrous Infrastructure Pvt.Ltd., reported in 2016 SCC online NCDRC 1117.
2. Mr.R.K.Ramani........V/s.......Godrej Landmark Redevelopers Pvt.Ltd., delivered by State Consumer Commission, Mumbai in Misc.Application No.MA/18/288 in CC/18/685, order dt.16/04/2019.
3. Shahbad Cooperative Sugar Mills. Ltd.......V/s......National Insurance Co. Ltd & ors, reported in II (2003) CPJ 81 (NC).
4. Sardhul Singh .......V/s.....United India Insurance, reported in II(2003) CPJ 82 (NC).
5. Zujarbhai Katawala......V/s.....Marol Land Developers & ors, reported in II (2005) CPJ 631.
6. A.H.Kapadia.......V/s......Shah & Sejpal Developers & ors, reported in I (2005) CPJ 724.
7. Kapoor Furnitures.........V/s......Jaswant Singh, reported in I (2005) CPJ 725.
8. Ganesh Lal......V/s.....Shyam, decided on 26/09/2013 by Hon’ble Supreme Court of India (D.B.).
9. Indrajit Dutta.......V/s......Samriddhi Developers & ors, reported in II (2015) CPJ 342 (NC).
10. Mangilal Soni.........V/s.......T.Marappa &ors. reported on II(2011)CPJ 95 (NC).
11. Manas Developers........V/s......Madhur Arjun Bhabal & ors, reported in III (2015) CPJ 192 (NC).
12. Rakesh Nag.......V/s......Kakali Manna & ors, delivered on 13/02/2018 by Hon’ble National Consumer Commission, Delhi in Revision petition No.3166 of 2017.

11. We have gone through the documents on record after hearing arguments advanced by both parties. Our observations are noted as follows,

1. The complainant had paid consideration as mentioned in the complaint Rs. 12, 80,000/- receipts are on record.
2. The opposite party has executed three agreements of sale for different plots, on 30^th January 2010, 27^th October 2010, and 21^st June 2012, recording the details of payment made and the details of plotsunder sale.
3. The opposite party has filed a copy of the power of attorney dated 26^thJuly 2018 in the name of the opposite party Shri. Krishna Akash Tayade, executed by Shri. Chindhuji Rajaram Maind,  Namdev Shriram Maind,  Sukhram Shriram Maind,  Prakash Shriram Maind,  Ratnamala Nathuji Lichade,and Smt. Leela by Shriram Maind,  the land owners.
4. In the reply filed by the opposite party, the opponent says that there is no jurisdiction to this Commission as the complainant has not proved that she is the consumer and the opposite party has provided any service to her.
5. Apparently, it appearsfrom the reply of the opposite party to the complaint that, an increase in the price of the land in due course of time, has resulted in increased expectations of the opposite party for getting a higher price for the same land.

12. After hearing the arguments advanced by learned advocates of both parties and perusal of the record, we refer to para in the judgment by the Hon’ble Supreme Court of India, our opinion is as follows, the opposite party is guilty of deficiency in service and unfair trade practices. Despite receiving almost the entire consideration for the price of plots, it has not handed over the plots sold as per agreement and has not executed Sale Deeds. In the case of Ghaziabad Development Authority vs. Balbir Singh, (2004) CASE NO.:Appeal (civil) 7173 of 2002, decided on 17^th March 2004.

“No hard and fast rule can be laid down, however, a few examples would be where an allotment is made, price is received/paid but possession is not given within the period set out in the brochure. The Commission/Forum would then need to determine the loss. Loss could be determined on basis of loss of rent which could have been earned if possession was given and the premises let out or if the consumer has had to stay in rented premises then on basis of rent actually paid by him. Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury, both mental and physical. Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable cause.”

In view of the above discussion, we hold that the opposite party is guilty of deficiency in service and unfair trade practices. We answer POINT no. 2 as AFFIRMATIVE.

13. AS TO POINT NO. 3: RELIEFS

Having decided that, the complainant is a consumer, and the developer/ promoter is guilty of deficiency in service and unfair trade practices, the next question is whether the consumer can seek a refund of the amount deposited with the developer/ promoter. Hon’ble Supreme Court of India has held in Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor, CIVIL APPEAL NO. 6044 of 2019 and CIVIL APPEAL NO. 7149 of 2019, order dated, 7^th April 2022

• 15. We may hasten to clarify that the power to direct refund of the amount and to compensate a consumer for the deficiency in not delivering the apartment as per the terms of Agreement is within the jurisdiction of the Consumer Courts. Under Section 14 of the Consumer Protection Act, if the Commission is satisfied …that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to, return to the complainant the price or as the case may be, the charges paid by the complainant. ‘Deficiency’ is defined under Section 2(g) to include any shortcoming or inadequacy in performance which has been undertaken by a person in pursuance of a contract or otherwise relating to any service. These two provisions are reproduced hereinbelow for ready reference.13 it is clear from the statutory position that the Commission is empowered to direct refund of the price or the charges paid by the consumer.

16. A consumer invoking the jurisdiction of the Commission can seek such reliefs as he/she considers appropriate. A consumer can pray for refund of the money with interest and compensation. The consumer could also ask for possession of the apartment with compensation. The consumer can also make a prayer for both in the alternative. If a consumer prays for refund of the amount, without an alternative prayer, the Commission will recognize such a right and grant it, of course subject to the merits of the case. If a consumer seeks alternative reliefs, the Commission will consider the matter in the facts and circumstances of the case and will pass appropriate orders as justice demands.”

In view of the above guidelines, the consumer-the complainant is entitled to a refund of the consideration deposited. In the present complaint, the complainant has prayed for a refund of the amount paid to the developer along with interest @ 18 % per annum, with no prayer as to possession of the plots. Thus the complainant is entitled to the refund along with the interest. We answer POINT no. 3 as AFFIRMATIVE.

14. AS TO POINT NO. 4: What Order?

In view of the above discussion under points no. 1, 2, and 3, we partly allow this complaint and pass the following order.

ORDER

1. Consumer Complaint is partly allowed with cost quantified to Rs. 50,000/- to be paid by the opposite party to the complainant within four weeks from the date of receipt of the copy of this order.
2. It is declared that the opposite party has indulged in deficiency in service and unfair trade practices.
3. The opposite party is hereby directed to refund the amount Rs. 12, 80,000/- along with interest @ 9% per annum from the date of filing of the complaint, within four weeks from the date of receipt of the order.
4. The opposite party is directed to pay Rs.2, 00,000/-   towards the compensation for causing financial hardship, and emotional, mental and physical agony.
5. The above order is to be complied with by the opposite party within four weeks from the date of this order, failing which the amounts will carry interest @ 12 % per annum, till realization.
6. Copy of this order is to be given to all the parties free of cost.