Per Hon’ble Shri K.M.Lawande,  Member. 

1  (i)  The complainant has filed this consumer complaint  under Consumer Protection Act ,1986 alleging deficiency in service on the part of opponents. It  is  alleged  that  the  opponent No.1 is the  owner  of the  agriculture  land  bearing  Khasara  No.91, 93, 92 A,  PH

(Patwari Halka Number) No.67 of village Bhihalgondhi, from Katol Tahsil in Nagpur District and had engaged opponent No.2 for carving plotting/doing layout, who had carved out layout plan, floated the scheme for sale of plots and invited the  people to purchase the plots.

(ii)    Complainant booked  4 plots bearing  numbers 122,123,124 125 from the Lay Out from opponent  1 and 2 for the consideration of Rs. 17,17, 840/- in year 2008 and paid Rs.2 lakhs towards booking amount. The opponents had undertaken for getting Lay Out sanctioned from competent authority and to give possession in year 2010.

(iii)  The opponents (being referred to as O.Ps. herein after) further changed the Lay Out and complainant was shifted to plot No.9,admeasuring area of 1360.59 Sq.M. (15639.04 sq. feet) and the price was fixed to Rs. 6 lacs. He further paid Rs 2.0 lacs to OP No. 2 in year 2009.

(iv) However, complainant delayed payment for want of demarcation and development of plots. He was agitating before the O.Ps for the same. The OPs  promised him to hand over possession by March 2016 and asked complainant to pay balance amount. Therefore, he paid the balance  amount in year 2015 and 2016 to OP No. 1.Thus paid the  entire amount of  Rs 6 lacks to OPs.

(v)   He further paid Rs.1.6 lacs for construction of a house of 500 sq feet on the plot and it was assured to him that the delivery of house will be given before 31March 2017.

(vi)  He was continuously persuading the O.Ps .The OP No1 gave possession of plot only on 29/03/2017.

(vii) He filed consumer complaint before this commission seeking directions to Ops. to deliver possession along with completed  construction of a house  and execute sale deed or to refund Rs.7.6 lacs with 24 percent interest from the respective dates of  payments. Complainant also claimed Rs 15 lacs towards mental agony and Rs.1.0 lacs towards cost of litigation.

2.  The O.P. 1 appeared before this Commission and submitted his written statement and denied the rival allegations. However, it is admitted that he is the  owner of the particular land referred in the complaint, Lay Out for  residential plots on the said land  by him and initially complainant intended to purchase  four plots and after revised Lay Out complainant decided to purchase only  one plot i.e. No.9 in the revised Lay Out .

           It is specifically denied that O.P. 2 carved out plots and invited people to purchase the plots. It is denied that the O.Ps. undertaken  to obtain sanction of the competent authority and handing over possession in year 2010.It is admitted that the possession of said plot is given to the complainant on 29/03/2017 by way of kabjapatra ( कब्जापत्र ) with specifically mentioning that process of obtaining sanction is a time consuming and will take some time . It is further denied that this OP received the amount of Rs.1.6 lacs for the construction of a house on the said plot. However, the OP No.1 admitted that the amount is received for construction of compound wall and he has constructed it. It is specifically pleaded that the Kabja Patra specified that the purchaser to construct the house and maintain possession of  the plot. It is also  specifically pointed out that the complainant on one hand admitted received possession by way of Kabjapatra and on the contrary he is  asking possession of the plot. It is contended that the Complainant filed the fabricated and concocted complaint to harass the OP and  for extracting  money from him.

(3)  Opponent No.2/(O.P.No.2) failed to file his written statement and complaint  is proceeded ex-parte against him.

(4)  Learned Advocate Mr.Bhushan Mohata appeared for the complainant. Learned Advocate Saurabh Fuladi gave  appearance for the OP 1.

(5)  Complainant and O.P.No.1 filed their evidence by way of affidavits and also submitted their written notes of argument.

(6)   After respective submissions of the parties, following points arose for our determination. We have noted them and answered them  for the reasons to follow.

 REASONING

Points 1, 2 and 3

(7)    The learned advocate Shri Mohta argued for the complainant  that the complainant  is consumer of opponents and the opponents have received the amounts mentioned in the complaint for sale of a plot from complainant. Complainant has paid total amount as agreed for the purchase of the plot. O.Ps have received Rs 6 lakhs for the plot and Rs. 1.6 lakhs for the construction of a house on the said plot by O.P 1. The  OPs have not obtained sanction for the Lay Out and  have not executed sale deed   in  favour of complainant though the OP 1 has  received amount of Rs1.6 lacs for construction of a house on the plot. However, not constructed the house on the plot. The complaint is entitled for legal possession of the plot otherwise for refund of the amounts paid with 18 percent interest from the O. Ps. To support his contentions, he relied upon following citations

(i)  Hon. Apex Court  in Narne Constructions Private Limited etc....v/s.... Union of India and other, 2012 DGLS ( SC)  266 (Supreme Court)

Para 6. This court further held that when a person applies for allotment of building site or for a flat constructed by Development Authority and enters into an agreement with the developer or a contractor, the nature of the transaction is covered by the expression service of any description. The housing construction or building activity carried on by a private or statutory body was, therefore, held to be service within the meaning of clause  Section 2 (1 )of the Act .

Para 8.  This Court in Bangalore Development Authority....v/s... Syndicate Bank  2007 6 SCC 711 dealt  with the nature of the relief that can be claimed by the consumers in the event of refusal or delay in the transfer of the title of the property in favour of the allotees/ purchasers  and observed :

Where full payment is made and possession is delivered but title deed  is not executed without any justifiable cause, the allottee  may be awarded compensation for harassment and mental agony in addition to appropriate direction for execution  and delivery of title deed.

(ii)  Hon. Apex Court in Bangalore Development Authority....v/s.... Syndicate Bank, 2007DGLS SC 664 Supreme Court , wherein interest of 18 percent awarded by after respective submissions of the parties.

(iii)  Hon Apex Court in K.A.Nagamani .....v/s..... Housing Commissioner Karnataka Housing Board, 2012 DGLS SC 1030 allowed the appeals directing respondent to pay 18 percent interest p.a. from the date of  depositing  till realisation.(para 26 emphasis)

( iv)  SCDRC, Maharashtra, Nagpur Circuit Bench in Anil Wasudeo Adey .....v/s.... Sahara Prime City and ors,C.C.2014/16 decided on 11/12/2018, wherein the Commission directed to O.Ps in all the complaints to refund certain deposited amounts with 18 percent interest.

(8)   The OP No.1 did not file his notes of arguments. However, his w.s. and affidavit of evidence is on record . We have perused and considered the same while deciding the complaint.

(9)  Considering the facts before us, it reveals that complainant purchased plot from O.Ps by paying Rs. 6 lakhs towards consideration amount. It reveals  that the lay out is not sanctioned one and  parties have entered into a agreement styled as Kabjepatra, by which  the possession of the plot is given to the complainant. The complainant and O.P No.1 both admitted that the possession of the plot is with the complainant. However, there is no entry in  records /property card of the said plot in complainants name.  In the circumstances , there requires consideration that whether it will be appropriate to direct the parties to maintain the possession of plot with the complainant and direct the opponents to obtain the NA permission in  future. It revealed that the though the opponents have not obtained the NA permission till this date. Also, there is no  document came before us that the opponents have approached any competent authority for sanction of the Lay Out or NA permission. In our opinion, the kabja Patra, entered into agreement is not a  final  document in the eyes of law to establish that the complainant is a absolute  owner of particular property. It reveals that the said  kabjapayra  is also not registered one. It is simply notarised document. The S-17(1)(b) of Indian  Registration Act states  necessity of  registration of the property  in case of transaction where the valuation of the property is exceeding Rs.100. Moreover, we observe that it will also not be possible for the complainant to develop the property legally in the absence of sanctioned Lay Out and registered sale deed. In our opinion, It is rather not possible for the complainant to obtain the building permission from planning authority and other permissions to develop the property. Therefore , in our opinion, it is  not justified to maintain or direct  the possession of the plot with the complainant and direct the opponents to obtain the NA permission . Instead, it will be just and proper   to direct the OPs  to refund the amount they received from the complainant with appropriate rate of interest.

10.   It  appears that the complainants contention is that he  paid Rs 1.6 lacs to the O.P.1 for the construction of a house in the said plot. However, the OP 1 is denying that he received this amount for construction of a house .It is his contention that the amount is received for construction of a compound wall. However, there is no evidence or any document to show that the parties entered  into an agreement for construction of a house or  a  construction of a compound wall. As we have already  discussed,  it will be just and proper for the parties to retain  the possession of the plot with the OPs and direct OPs to refund the amount they received towards sale of the plot to the complainant with proper rate of interest. In that analogy, it will be also just and proper to refund the amount of Rs 1.6 lakhs to the complainant.

11.   The complainant have demanded 18% interest on the amounts he paid from the particular dates he paid the amounts keeping reliance on the contentions of Hon.SC  and this Commission in cited supra  in his arguments. However we have gone through the recent judgement of Apex court in Experion Developers Pvt. Ltd. ....v/s.....Sushama Ashok Shiroor, II (2022) CPJ 22 (SC), wherein the Hon. Apex court granted 9 percent interest from the depositing of the amounts by the respondent.

         We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amount. The Commission in the order impugned has granted interest from the date of last deposit.

Court held thus ; Para 22.1 “We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula Private Limited v. DS Dhanda, IV (2019) SLT 675 = II (2019) CPJ 1170(SC) = (2020) 16 SCC 3180 (at para 21) and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be payable from the date of deposit. Therefore, the appeal field by purchaser deserves to be partly allowed. The interest shall be payable from the dates of such depositors”.

“Para 22.2 At the same time, we are of the opinion that the interest of 9% granted by the Commission is fair and just and we find no reason to interfere in the appeal filet the Consumer for enhancement of interest.”

12)      We have also gone through the judgement of Honorable National Commission ine Pravin Krishnarao Chaoji......v/s.....Shekhar Madhukar Patwardhan, FA 2097/2018 and other appeals bearing numbers as FA No.2098/2018, 2099/2018, 2100/2018decided on 13/01/2020 and  held

Para 14. in view of the ratio laid down by this Commission as well as the Apex Court in the afore extracted judgements, I am of the considered view  that no error has been committed by the State Commission in directing the developer either to complete the project according to approved Lay Out Plan and sanctioned Building Plan and to  hand over vacant possession to  the complainants  and or to refund the amount with compensation and interests. However, keeping in view that  the present bank rate on FDRs  and the recession in the Real Estate , I am of the considered view that the interest awarded  at 15% by the state Commission on refund of the deposited amount is on higher side. ln case the complaints opt for  refund of the deposited amount , they shall be entitled for interest at 10% per annum from the respective  date of deposit till payment. Therefore, keeping reliance on the judgments of Hon Apex Court in Experion Developers Pvt. Ltd......v/s..... Sushama Ashok Shiroor and Pravin Krishnarao Chaoji......v/s....Shekhar Madhukar Patwardhan, cited supra, we are of the considered opinion that it will be just and proper to award  10 percent interest  on the deposited amounts from their depositing with the OP No.1 and 2. It is transpires that OP No.2 is the person who has acted for  carving of Lay Out and floating of the scheme. However, OP No.1 has denied this. Therefore, all those amounts deposited by the complainant with either of the O.Ps., these are obtained/recovered at the instance of OP.1 only. Therefore, it will be just and proper to direct O. P No.1 to direct to refund the deposited amounts as referred in the complaints with 10 percent simple  interest p.a. from the respective dates of the payments to the complainant. In our opinion, it will be just and proper to direct OP 1 to pay Rs 50,000/- towards mental and physical agony and Rs 10,000/-towards cost of litigation. In the circumstances ,we pass following order

// ORDER //

(i)   Consumer Complaint No.CC/18/30 is hereby partly allowed.

(ii) Opposite Party No.1 is hereby directed to refund the principal amount of Rs.7.6 lacks to the complainant from the date of respective payments paid to him by the complainant towards purchase of plot No.9 in the Khasara No. 91,93,92A,PH (Patwari Halka Number)No.67 of village Bhihalgondhi alongwith interest @ 10% p.a.  within period of three months.

(iii) Opposite Party No.1 is further directed to pay compensation of Rs. 50,000/- towards mental and physical agony and Rs.10,000/- towards cost of litigation within period of three months.

iv)   The copy of  order be furnished to the parties free of cost.