(Delivered on 4/4/2019)

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

1. This is a complaint filed under Section 17 of Consumer Protection Act, 1986. The case of the complainant as set out in the said complaint in brief is as under.

1. The opposite party ( for short OP) No. 1 is a corporate company and it is engaged  in development and construction activities. The OP Nos. 2 to 5 are the contractors of OP No. 1. The OP No. 6 is the power of attorney holder of OP No. 1. The OP Nos. 1 to 6 launched a scheme in the name and style as “Vyankatesh  City IV” Ramdaspeth Pipri, District Nagpur and promised to construct various residential units with various facilities and amenities  shown in the brochure by them. The complainant booked one of the residential unit called as 2BHK Duplex in sector six  under name and style as “Marvel” with the OP for a consideration of Rs. 12,00,000/-The complainant paid booking amount of Rs. 2,40,760/- in installment from 5/11/2009 to 23/10/2010 to the OP. However the OP had assured that they would obtain necessary permission and sanction for the purpose of development and construction of the said residential units.
2. However, till the year 2013, no such permission and sanctioning were obtained by the OP. Therefore the OP offered another residential unit in another scheme called as “Gulmohar Villas” to the complainant in place of previous booked unit. The complainant accepted that offer and booked bungalow No. 46 in “Gulmohar Villas ” by cancelling the previous booking in “Marvel” scheme. The price of that Bungalow was fixed at Rs. 22,05,000/-. The amount of Rs. 2,40,760/- paid earlier by the complainant to the OP was adjusted in the subsequent booking of Bungalow No. 46. Thereafter the complainant paid in installment various amounts. Thus, the complainant paid total amount of Rs. 19,14,829/- to the OP out of Rs. 22,05,000/-. The OP executed the registered agreement to sell on 12/12/2013 in favour of the complainant in spite of Bungalow No. 46. The OP also assured  to provide various facilities and amenities described in  para No. 12 of the complaint in detail. The OP had assured that the construction of the Bungalow under the aforesaid scheme would be completed within 18 months from  13/12/2013 and that all the facilities and amenities will be provided to the customer within that period.
3. However, thereafter, the OP did not complete the construction within given time and thus the OP adopted unfair trade practice and also rendered deficient service to the complainant. Hence the complainant  filed the present complaint seeking directions  to the OP as follows.

1. The OP to  refund to the complainant Rs. 19,14,829/- with interest at the rate of 18 percent per annum from 5/11/2009 till its realization by him.
2. The OP to  pay to the complainant Rs. 1,22,000/-  towards expenses incurred by him for registration of the agreement of sale and Rs. 1,000/- towards fees of the advocate paid by him for drafting of the agreement.
3. The OP to pay to the complainant Rs. 2,90,757/- towards the bank installment and the interest paid by him since 14/12/2013.
4. The OP to pay to the complainant Rs. 50,000/- towards payment made by him towards rent since June 2015.
5. The OP to pay to the complainant Rs. 10,000/- as compensation for physical and mental harassment and economic loss.
6. The OP to pay to the complainant Rs. 1,00,000/- towards litigation expenses.

2.  The OP Nos. 1,2 and 6 filed reply to the complaint and thereby resisted the said complaint. They have denied the case of the complainant and submitted in brief  that complainant  is working as a commission agent  for OP No. 1 in  the name of his mother/wife and he gets commission from OP No. 1. He is acquainted with the OP No. 1 and its project as he himself had convinced  people at large to purchase the property from OP No. 1. It is denied that OP Nos. 3 and 4 are the Directors of OP No. 1 and OP No. 6 is power of attorney holder appointed by OP Nos. 2 to 5 on behalf of OP No. 1. The complainant himself had requested the OP No. 1  to get  his booking shifted to another scheme totally as “ Gulmohar Villas” in spite of booked one which was accepted by OP No. 1. Accordingly,  registered agreement of sale relating to Bungalow No. 46 was executed. The price of that bungalow was fixed at Rs. 22,05,000/- . According to the said OP Nos. 1,2 and 6, the complainant has no locus standi to file the complaint. Hence they requested that complaint may be dismissed with cost.
3. The OP No. 3 also resisted the complaint by filing his reply. He denied that he is a contractor of OP No. 1 company and that OP No. 6 is power of attorney holder of OP No. 1. He also denied the case of the complainant and specifically submitted that he does not know the complainant. He never sold out any bungalow   to the complainant. The advocate of the OP No. 3 has given reply to the notice of the complainant and informed him that the OP No. 3 is not  having any transaction directly or indirectly with the complainant. The OP No. 3 has  resigned  from  the company on 23/07/2013 and the complaint was filed on 26/10/2015. Therefore the entire transaction is not binding on OP No.  3. Hence he requested that complaint may be dismissed.
4. The complainant along with complaint filed copies of the following documents.

1. Twelve receipts of the payment made by him to the OP for the period from 10/12/2009 to 8/10/2013 in installments.
2. Three  payment receipts  dated 17/12/2013, 7/11/2014 and 29/11/2014 about payment made on those dates by the complainant to the OP.
3. Two service tax invoices.
4. Statement of account.
5. Notice issued by the complainant to the OP.
6. Postal receipts and the acknowledgments.
7. One notice returned unserved.
8. Photographs of the township and brochure of the township with plan and map.

   The complainant also filed his affidavit by way of evidence.

5. The OP No. 3 filed copies of documents namely register DSC view signatory details  showing that Mr. Vijay Anandrao Shelke was appointed as  director on 20/08/2007 and expiry date of DSC as 23/08/2013 & further showing  the name of Mr. Mahendra Tulsiram Gawai as director appointed on 20/08/2007 and expired on 26/09/2012. The OP No. 3 also filed other documents namely receipt of G.A.R. 7 issued by Ministry of Corporate Affairs, Form No. 32  pursuant to the relevant provisions of Companies  Act, 1956 and copy of  his (OP No. 3)  letter of resignation dated 23/07/2013.
6. The OP Nos. 1,2 and 6 filed affidavit of Mr. Vijay Anandrao Shelke (OP No. 2) by way of evidence. The OP No. 3 Shailendra Kamalkishor Jaiswal also filed his affidavit  by way of evidence.
7. The learned counsels of complainant & OP Nos. 1,2,3 and 6  filed their respective written notes of arguments.
8. The OP Nos. 4 and 5 are already proceeded exparte as per order dated 18/03/2016. No one appeared for the complainant and OP Nos. 1,2 and 6 for making oral submission at the time of final hearing. Therefore we considered the written notes of arguments filed by their advocates as their oral submissions. We heard advocate Mr.  S. B. Meshram appearing for the respondent No. 3 at the time of final hearing. We have perused the entire record and proceeding of the complaint.
9. The learned advocate of the complainant submitted that the complainant has proved the case set out by him in the complaint by filing aforesaid documents and  affidavits and the defence raised by the OP is not proved by them. Hence he requested that the reliefs sought for in the complaint may be granted.
10.  On the other hand, the learned advocate of the OP No. 3 submitted that as OP No. 3 has already resigned from the post of directorship  of OP No. 1 prior to agreement to sell, he is  not liable to pay any amount to the complainant. Hence he requested that complaint as against OP No. 3 may be dismissed.
11. The learned advocate of the OP Nos. 1,2 and 6 in his written notes of arguments  denied the liability of the OP Nos. 1,2 and 6 and allegations made in the complaint and submitted that the construction of the bungalow is almost completed but it is not finished as the complainant has failed to make the payments as agreed and that the complainant himself  did not pay any heed of the request made to him by the OP and delayed the execution and registration of sale-deed. Hence he requested that complaint may be dismissed.
12. It is thus not disputed that initially the complainant had booked with the OP, 2BHK Duplex for total consideration of Rs. 12,00,000/- and he paid to the OP Rs. 2,40,760/- towards part of the price of the said duplex. It is further not disputed that subsequently the said booking was changed and the complainant booked Bungalow No. 46 with the OP for total consideration of Rs. 22,05,000/- and therefore  earlier payment of Rs. 2,40,760/- was adjusted towards part of price of Bungalow No. 46. The complainant produced various receipts noted above and thereby  proved that he made total payment of Rs. 19,14,829/-  out of full price of Rs. 22,05,000/- of Bungalow No. 46. He also obtained registered agreement to sell from the OP on 12/12/2013 which is filed on record and not disputed by the OP. We find that it is not the case of the OP that they have fully constructed bungalow No. 46 as per agreement and also provided all amenities and facilities as per brochure  and the plan within a period of 18 months as agreed in the agreement dated 12/12/2013. The OPs have therefore adopted unfair trade practice and rendered deficient service to the complainant. The complainant cannot be made to wait for a indefinite period  for getting the bungalow as per agreement. Therefore he is entitled to refund of Rs. 19,14,829/- paid towards part of the price of the bungalow,  with interest at the rate of 18 percent per annum from the date of respective payment. He is also entitled to Rs. 1,22,000/- which he paid for execution and registration of the agreement. He is also entitled to compensation of Rs. 5,00,000/- for physical and mental harassment and litigation cost of Rs. 10,000/-
13. It is also seen that the OP No. 3 has tendered his resignation on 23/07/2013 which is also not disputed. The said resignation is prior to the agreement of sale  dated 12/12/2013. Therefore he cannot be held responsible for refund of money with interest, compensation and cost to the complainant. However, the OP Nos. 1,2,4,5 and 6 are jointly and severally liable to pay aforesaid amount with interest, compensation and cost to the complainant. Thus, the complaint deserves to be partly allowed as under.

ORDER

1. The complaint is partly allowed.
2. The OP Nos. 1,2,4,5 and 6 jointly and severally shall refund to the complainant, Rs. 19,14,829/- with interest  at the rate of 18 percent per annum from the date of the respective payment till realization of the same by him and also to pay him Rs. 1,22,000/- towards expenses incurred by him for execution and registration of the agreement dated 12/12/2013 and further to pay him compensation of Rs. 5,00,000/- for physical and mental harassment and litigation cost of Rs. 10,000/-
3. The complaint as against OP No. 3 is dismissed.
4. Copy of the order be furnished to both parties, free of cost.