( Delivered on 1/12/2018)

Per Mr. B.A. Shaikh, Hon’ble Presiding Member

1. This is an appeal filed by original complainant, feeling aggrieved by dismissal of his complaint bearing No. RBT/CC/11/610 by an order dated 18/8/2016 passed by Addl. District Consumer Forum, Nagpur  
2. The case of the original complainant as set out by him in the aforesaid consumer complaint in brief is as under.
   1. The opposite party ( for short OP)  No. 1 is a partnership firm and it  is engaged in development activities. The OP No. 2 is its partner. The OP No. 3 is the land owner. The Op Nos. 1,2 and 3 got sanctioned the lay out plan of the land described in the complaint as owned by OP No. 3 and they offered plots of the said land for sale to general public. The complainant wanted to purchase two plots bearing Nos. 19 & 20 each admeasuring 1500 sq. ft. As per oral agreement entered into both the parties, the price of each of the plot was fixed at  Rs. 30,000/-
   2. The complainant during the period from 16/10/1992 to 01/11/1994 paid price of Rs. 30,000/- of plot No. 19 and Rs. 1,500/- towards registration charges of the sale-deed of that plot of to the OP. Moreover the complainant during the period from 16/10/1992  to 16/01/1996 paid price of Rs. 30,000/- towards the price of plot No. 20 along with Rs. 1,500/- towards registration charges  of sale-deed of the sale of that plot to the OP.
   3. However, the OP did not execute the sale-deed of said plots though request was made to them by the complainant from time to time. The complainant lastly issued notice dated 8/6/2011 to the OP for getting sale-deed of the plots to the OP. But the OP avoided execution  of  the sale-deeds & giving  possession of the plots to complainants.
3. Hence the complainants filed consumer complaint before the Forum seeking following directions.

1. The OP to execute sale-deed of both the plots in favour of the complainant and to give their possession also to him.
2. If the OP is unable  to execute the sale-deed, then alternatively the OP shall pay to the complainant prevalent price of Rs. 15,00,000/- of both the plots and also to pay the complainant compensation of Rs. 4,00,000/- for the causing loss due to delay and for physical and mental harassment and also to pay Rs. 5,000/-  as litigation cost to the complainant.  
3. The OP to pay interest at the rate of 18 percent per annum over the aforesaid amount.

4. The original OP/respondent herein appeared before the Forum below and filed its reply and thereby resisted the complaint. The case of the original OP Nos. 1,2 & 3/ respondents  in appeal as set out by them in aforesaid reply in brief is as under.

1. The complaint is barred by limitation  though it is alleged by the complainant that he paid full price of both the plots till the year 1996. He did not file the complaint within two years from the year 1996 but he filed the complaint in the year 2011.
2. The complainant has suppressed the material fact that the land in question initially was to be acquired under MIHAN project but subsequently the said land was reserved for acquisition by CIDCO. Hence there is no question of execution of sale-deed of aforesaid two plots of the said land. Moreover, the request for sale-deed of the said plots cannot be allowed. No deficiency in service thus can be attributed  to the OP. It was necessary for the complainant to approach the Land Acquisition Officer to claim his rights  on the said plots for the purpose of receiving the compensation thereon. The complainant deliberately did not approach the Land Acquisition Officer and filed the present complaint, which is illegal.
3. Moreover, the complainant has not produced documents for claiming compensation of Rs. 4,00,000/-. The complainant after keeping silent for so many years filed complaint claiming interest at the rate of 18 percent per annum over the amount, which cannot be allowed. The possession of the plots and the sale-deed cannot be given to the complainant under the above facts and circumstances and hence the complaint deserves to be dismissed.

5. The District Forum below hearing both the parties and considering evidence brought on record, came to the conclusion as under.

1. The cause of action for filing of the complaint is continuing till the sale-deed of the plots is executed in  view of the law settled in various cases referred to in the impugned order and hence the complaint is not barred by limitation. There is no agreement in writing in between both the parties relating to the plots and hence no direction can be given to the OPs to execute   sale-deed of the plots though the OPs have not raised  any dispute about the payment made  by the complainant/appellant herein and specified in the complaint. The documents filed on record show that  the complainant paid only Rs. 17,000/- to the original  OP/respondent herein and hence the complainant is entitled to refund of that  amount with interest &   compensation of Rs. 15,000/- and litigation cost of Rs. 5,000/-.
2. Therefore the Forum under impugned order directed the OP Nos. 1,2 and 3 to refund jointly and severally to the original complainant/appellant herein Rs. 17,000/- with interest at the rate of 9 percent per annum from 10/10/2011 till its realization by him and also to pay him compensation of Rs. 15,000/- for physical and mental  harassment  and litigation cost of Rs. 5,000/-.
3. Thus, feeling aggrieved by the said order this appeal is filed by the original complainant. We have heard advocate Mr. P.N. Upadhyay appearing for the appellant/original complainant  and advocate Mr. Nerkar appearing for the respondent/original OP. We have also perused the record and proceeding of the appeal.

6. The learned advocate of the OP/respondent submitted that the appellant is ready to execute the sale-deed of the plots subject to payment of balance consideration with interest by the appellant to the respondent. He in his written notes of arguments  filed earlier had supported the impugned order.
7. On the other hands, the learned advocate of the original complainant/appellant herein submitted that the impugned order cannot be sustained under law as it is passed without consideration of the pleadings of both the parties & documents filed on record and without considering the legal aspects of the case. He has drawn our attention to the documents filed on record and submitted that it is proved by the original complainant that he paid full consideration of the plots with registration charges to the OP and therefore the complaint deserves to be allowed.
8. It is pertinent to note that it was the specific case of the original complainant as set out in the consumer complaint that he paid full price of both the plots along with registration charges of the sale-deed to the OP in installments of which details are given  by him in consumer complaint. The OP Nos. 2 and 3/respondents herein in their common reply filed to the said complaint have not disputed that they received whole price of the plots and registration charges as averred in consumer  complaint. Therefore we hold that the Forum erred into entering into question about non payment of balance consideration of plots  by complainants to the OPs.  
9. Even otherwise, we find that the account statement filed on record is written in handwriting of the OP and it was already filed by the appellant before the Forum to prove that the OP received full price of both the plots. The OP did not deny the said account statement and receipts produced on record. Therefore we find that in appeal, no defence  can be raised by the respondents herein/original OPs that part of the consideration of the plots is still due from the original complainant/appellant herein. The aforesaid account statement and receipts filed by the complainant went unchallenged before the Forum below which prove that original complainant/appellant paid full price of both the plots to the original OPs/respondents herein. Thus, we hold that the Forum below erred in holding that the complainant paid only Rs. 17,000/- out of full price of Rs. 60,000/-, to the OP. Thus, the said finding cannot be sustained in law.
10. We also find that  the Forum below however has rightly held that the cause of action for filing the complaint is continuing since full price of the plots was already paid and since the law about the same is settled in the decision referred to in the impugned order. Thus, there is no substance in the plea raised in the reply to  the complaint by OP  that complaint is barred by limitation.
11. We also find that since full price of  both the plots is already paid by the original complainant to the original OP and since the original OPs  have  not executed sale-deed of the same in favour of the complainant, the OPs have rendered deficient service to the complainant. Hence the complainant is entitled to sale-deed with possession, compensation & cost. Moreover, we  also find that if the original OPs are unable to execute the sale-deed of plots  within six months of receipt of order, for any legal reason then they are liable to pay price of the plots as on the date of the complaint filed before Addl. District Consumer Forum, Nagpur below on 30/12/2018 as per Government Ready Reckoner Rate with interest at the rate of 9 percent per annum. Moreover the complainant is also entitled to compensation of Rs. 5,000/- with litigation cost of Rs. 5,000/- Accordingly, we proceed to pass the following order.  

ORDER

I. The appeal is partly allowed as under.

     The original OP Nos. 1,2 & 3/respondent Nos. 1,2 & 3 herein shall execute sale-deed  of the plots described in the complaint in favour of the original complainant/respondent herein and shall  also give possession of the same to him within a period of six months  from  receipt of copy of the present order. 

II. The complainant shall bear expenses for execution and registration of the sale-deed of the plots. If the original OPs/respondents herein are unable to execute sale-deed and to give possession of the said plots as above within six months of receipt of copy of present order to the original complainant, then alternatively they shall pay to the original complainant/appellant herein the price of both said plots as on 30/12/2015 as per Ready Reckoner Rate maintained by the Government of Maharashtra, with interest at the rate of 9 percent per annum from 30/12/2015 till realization of the same by the original complainant/appellant herein.

III. The original OP Nos. 1,2 & 3/respondents herein shall also pay to the original complainant/appellant herein compensation of Rs. 5,000/- for physical & mental harassment and litigation cost of Rs. 5,000/-.

IV. The copy of the  present order be furnished to both the parties free of cost.