Per Smt. Chandrika K. Bais, Hon’ble Member

1. As per the complainant, the complaint in brief are as follows. The opponent Nos. 2 and 3 are the partners of Jambudweep Builders and Developers- opponent No. 1. The complainant was intended to construct her own house in Nagpur city and for that purpose she was in requirement of one plot.  The opponents gave information about their layout situated at Mouza Chikhli (Khurd), Khasra No. 31/2-K, P.H. No. 39-A, Sheet No. 519/45, City Survey No. 76, Tahsil & District Nagpur. The complainant has selected Plot No. 33 admeasuring area 2005.33 sq. Ft. for total consideration of Rs. 13,03,464/- situated in the aforesaid layout. The complainant has entire amount of consideration of Rs. 13,03,464/ The opponents have committed to execute the sale deed in favour of the complainant.  It was also condition precedent that whenever registration of sale deeds  will  start,  the opponents will execute the  sale deed of the  plot in favour of complainant. But, the opponents have not executed the registered sale deed of plot in favour of complainant till now. So, the complainant lodged police complaint to Hudkeshwar police station and crime branch, Nagpur on 4/8/2019 and 6/8/2019 respectively. In spite of this, the opponents did not respond to the complainant in any way. Hence complainant approached before this Nagpur District Commission for their grievances.  As per the demand of complainant, the Commission should declare that opponents have made deficiency in services and committed unfair trade practice. The opponent company be directed to execute registered sale deed with physical possession of the suit plot in favour of complainant or in alternate direct the opponent to refund the cost of said plot as per today’s rate of Government Ready Reckoner along with 18 percent per annum thereon. Also the complainant has demanded 18 percent interest per annum on total paid amount of Rs. 13,03,464/- till the execution of the sale deed, with mental and physical compensation thereon. The complainant filed documents along with the complaint and as per list dated 12/11/2020.  
2. As per the written statement of opponent Nos. 1 to 3, they have agreed  that opponents Nos. 2 and 3 are the partners of opponent No. 1. Opponent No. 1 had purchased the land of 1.25 acres from Smt. Umabai B. Khandale and their name was muted in the records of City Survey.   It is not disputed that complainant had purchased plot No. 33 admeasuring 2005.33 Sq. Ft. as mentioned above  in schedule of property, in total consideration of Rs. 13,03,464/- which does not come within the aforesaid 1.25 acres. Opponents have mentioned that aforesaid lay out is situated on 2.5 acres and out of that Smt. Umabai Khandale was owner of 1.25 acres and the remaining 1.25 acres out of the aforesaid lay out is owned by Mr. Bhaskar Chavan  and the sale deed of this land is yet to be registered. Also opponent Nos. 1 to 3 have submitted that Mr. Bhaskar Chavan  had filed a special Civil Suit No. 1263/2016 ( Bhaskar Tanbaji Chavan  Vs. Kishan and 11 Others) seeking the reliefs claimed therein in respect of his land share of 1.25 acres. It is submitted that  the opponent Nos. 2 and 3 are defendants No. 11 and 12 in the said suit and unless the suit is decided by Civil Court, the opponent Nos. 1 to 3 could not execute the registered sale deed in favour of complainant. As per the opponent Nos. 1 to 3, they have  developed the entire layout.  The Opponent Nos. 1 to 3, further submitted that they have executed the sale deeds in favour of other prospective purchasers. And even though the complainants have filed FIR against the opponents.  And then the complainant had filed this complaint after a period of three and half year. Hence this complaint itself is hopelessly barred by limitation and the complaint deserves to be dismissed.  So, opponent is not liable for the interest on said amount of plot and damages thereon.  Also this Commission has no jurisdiction to decide this case on merit. Hence opponents requested to the Commission that this complaint should be dismissed with heavy cost. The OP Nos. 1 to 3 filed documents as per list dated 20/08/2020, 05/11/2020 and also on dated 23/11/2020.
3. As per the written statement of OP Nos. 4 and 5, they have submitted that Smt. Umabai Khandale is not authorized to execute the sale deed in favour of opponent Nos. 2 and 3 dated 18/12/2014 vide document No. 8080/14. Therefore the opponent Nos. 2 and 3 also on the basis of alleged sale deed not authorized to enter into an agreement with the complainant. That the opponent No. 4 has filed Civil Suit vide R.C. S. No. 276/2020 against Smt. Umabai Khandale 2, 3, and 5 is pending with joint Civil Judge, Junior Division Nagpur. This Hon’ble Court has issued notice but not served in this matter due to lockdown matter was fixed on 8/10/2020. That later on opponent No. 4 come to know that opponent No. 5 not having the knowledge regarding execution of sale deed 18/12/2014 and also not known the contention of the sale deed. Only she had stand as she known to the parties of the alleged sale deed on the miss representation of opponent Nos. 2 and 3. Also opponent Nos. 4 and 5 again submitted that Smt. Umabai Khandale and opponent Nos. 2 and 3 have plead for  with the opponent Nos. 4 and 5. Hence opponent Nos. 4 and 5 have lodge the police complaint on 1/8/2020 with the Hudkeshwar police station. Again further opponent Nos. 4 and 5 says that as per the 7/12 extract of property mentioned in para No. 10 of reply to the application  under Section 13-3 (b) of Consumer Protection Act, 1986 for grant of interim relief against the opponents. Partition amongst the Shri  Kishan Chavan, Shri Bhaskar Chavan, Smt.Parvati w/o Sheshrao Gaikwad, Smt. Umabai Khandale has not been initiated. No any partition deed has been executed amongst them. Therefore Smt. Umabai Khandale is not having legal title to sell the relevant portion of land amongst the whole land to the opponent Nos. 2 and 3.  So, the opponent Nos. 2 and 3 are not having valid title for making the agreement/Sale deed with the  complainant.  The opponent  Nos. 4 and 5 had further submitted that complainant without verifying  and search the whole document of above mentioned property had entered into an agreement. Therefore this complainant does not come in the definition of bonafide purchasers. Hence considering all above facts and circumstances, this complaint is liable to be dismissed with the heavy cost. The OP Nos. 4 and 5 filed documents on record.
4.  The opponent Nos. 1 to 3 have filed a copy of civil Suit No. 1263/2016, (Bhaskar Tanbaji Chavan Vs. Kishan @ krushan Tanbaji Chavan &11 others)and also the copy of counter claim filed by the opponent Nos. 2 and 3 in the said suit wherein the opponents Nos. 2 and 3 sought for specific performance of contract. It is claimed by opponent No. 4 that he has filed Civil Suit before the Civil Judge, Junior Division, Nagpur which is fixed for return of notice dated 8/10/2020. But, the notices in the aid Civil Suit are yet to receive by opponent Nos. 1 to 3. Meanwhile, during the pendency of the complaint, opponent Nos. 4 and 5 have mounted board on suit plot and claim their ownership in respect of suit plot on6/6/2020. Afterwards on7/6/2020, all the complainants have filed police complaint with Hudkeshwar Police Station and immediately moved to this Commission for grant of interim relief on22/6/2020. But opponent Nos. 1 to 3 have appeared and had submitted their written statement. Also meanwhile opponent Nos. 4 and 5 also appeared and they had also submitted their written statement and oral argument has been executed between complainant and all the opponent Nos. 1 to 5. And complainant & all the opponents have submitted additional documents in Commission.
5. In view of the rival contentions of both the parties and the documents on record, the following points arise for our determination and we have recorded our findings theiron as follows for the following reasons.

Sr. No.                                        Points                                              Answer

1.        Whether the complainant is consumer

of OP Nos. 1 to 5?                                                                Yes

2.       Whether opponent Nos. 1 to 5 have committed

deficiency in servicesby failing to execute

the relevant saledeed in favour of the complainant?           Yes

3.       Whether opponent Nos. 4 & 5 have indulged in

unfair trade practices?                                                         Yes

4.      What order?                                                                 As per final order.

6. After observing all documents submitted by complainants and opponents, the question arise to whether opponents have committed  unfair trade practice and deficiency in service regarding complainant. As per the specific pleading, reply of opponents Nos. 1 to 3, they have mentioned that opponent Nos. 2 and 3 had executed agreement to sale on date 23/9/2012, with opponent Nos. 4 and 5 Ashok Meshram and Smt. Urmila Jadhav, in respect of all piece and parcel of land i.e. 5 acres situated at Mouza Chikhli (Khurd), Khasra No. 31/1-K, P.H. No. 39-A, Sheet No. 519/45, City Survey No. 76, Tahsil & District Nagpur for the total sale consideration amount of Rs. 3,50,00,000/- (Three Crore and Fifty Lakh only). Meanwhile,  on date 23/9/2012, opponents Nos. 1 to 3 have erected their board in the name of Jambudweep Builders & Developers and started development and demarcation  of layout. At that time, the original owners obstructed from doing development work on the aforesaid land. It is found from the record that opponent Nos. 4 and 5 executed registered Agreement for Development and Sale Deed on dated 16/11/2010 by original land owners of this land-

1. Mr. Bhaskar Chavan, (ii) Smt. Umabai Khandare, (iii)Smt. Parvatabai Gaikwad, (iv) Mr. Kisan Chavan in favour of Jaivant Co-operative Housing Society Ltd. Nagpur. Hearing this, the opponent Nos. 1 to 3 immediately lodged complaint in Hudkeshwar Police Station on 3/8/2013, against all 4 original land owners as mentioned above. Opponent No.4 and 5 approached to opponent Nos. 2 and 3 and settled the matter and agreed to execute the registered sale deed of 2.5 acres out of 5 acres. Accordingly opponent Nos. 2 and 3 demarcated layout at 2.5 acres land and booked the plot with prospective purchasers.  It is informed  by opponent Nos. 4 and 5 that original owners  filed an application before Hon’ble High Court, Nagpur Bench, Nagpur on dated 25/3/2014 under order 23, Rule 3 of the Code of Civil Procedure, 1908 for compromise Decree, upon the decision of the said Second Appeal bearing No. 130/2000 (Charandas Tanbaji Chavan  & one – Vs.- Niranjan Jaiwantrao Tarale & 5 others will execute and register the sale deed in favour of the opponent Nos. 1 to 3. The Hon’ble High Court disposed of the said suit on 13/2/2015. It is submitted that Smt.  Urmila Jadhav through the land owner Smt. Umabai B. Khandare  had got the sale deed executed and registered in favour of the opponent Nos. 2 &3 vide registered sale deed dated 18/12/2014 bearing registration No. 8080-2014, registered in the office of the Sub-Registrar, Nagpur-3 in respect of her share of land admeasuring about 1.25 acres as per the map submitted along with the compromise application before the Hon’ble High Court, Nagpur  in the aforesaid second appeal and the said sale deed is binding on the said parties and accordingly the opponent Nos. 2 & 3 got their names mutated in all the revenue record as the absolute owner of the said 1.25 acres of land. The opponent Nos. 2 & 3 thereafter executed registered sale deeds in favour of the prospective purchasers in respect of the plots which comes under the aforesaid land. Then Smt. Urmila Jadhav executed an agreement on 30/06/2015 in respect of the receipt of payment made by the opponents and acknowledge and admitted by Smt. Urmila Jadhav and agreed to get executed and registered the sale deed of entire 2.5 acres of land for total consideration amount of Rs. 1,75,00,000/-(One Crore Seventy Five Lakh). In the said agreement she had also admitted the execution of sale deed of 1.25 acres of land through Smt. Umabai Khandare and agreed to get the sale deed executed through Mr. Bhaskar Chavan in respect of the remaining 1.25 acres of land. The opponent had paid this amount time to time and the receipt of the same was acknowledge by both Smt. Urmila Jadhav and Ashok Meshram. The receipt of the consideration amount 1,72,71,884/- (One crore seventy two lakh seventy one thousand eight hundred eighty four ) was admitted by the Smt. Urmila Jadhav and placed the opponent in actual physical possession of 2.5 acres of land from the execution of original agreement to sale dated 23/9/2012, the opponent Nos. 2 & 3 are in actual physical possession of the aforesaid 2.5 acres of land without any disturbances. The opponent Nos. 1 to 3 have accordingly developed the 2.5 acres of land, constructed the road, prepared layout plan and submitted to the NIT for sanctioning in Gunthewari Scheme and booked the plots in favour of prospective purchasers. For this land owner Mr. Bhaskar Chavan, Mr. Ashok Meshram and Smt. Urmila Jadhav had never objected to the said development and booking of plots. Further it is found on record that some of the prospective purchasers have already constructed their houses and residing in their respective houses in the aforesaid layout peacefully and filed photographs regarding the same on record.   

7. That the opponent Nos. 1 to 3 as per the agreement to   sale dated 23/9/2012 and agreement dated 30/06/2015 have already paid an amount of Rs. 1,72,71,884/- (One crore seventy two lakh seventy one thousand eight hundred eighty four) to Mr. Ashok Meshram and Smt. Urmila Jadhav towards the sale consideration amount against the aforesaid land admeasuring 2.5 acres. Also opponents 4 &5 had already issued the valid receipt time to time to the opponent Nos. 1 to 3. And now only an amount of Rs.  2,28,116/- (Two lakh twenty eight thousand one hundred and sixteen) is outstanding which is to be paid to opponent Nos. 4 and 5, by opponent Nos. 1 to 3. For execution of sale deed  of  remaining 1.25 acres of land, through the owner- Mr. Bhaskar Chavan,  opponent Nos. 1 to 3 had repeatedly approached to opponent Nos. 4 and 5. But the opponent Nos. 4 and 5 had always avoided for the execution of sale deed. That the opponent Nos. 1 to 3 have filed the copy of sale deeds being executed by opponent Nos. 4 and 5 in favour of some other prospective purchaser fraudulently and illegally. Hence the opponent Nos. 2 and 3 have lodged a police complaint against the opponent Nos. 4 and 5 with the Hudkeshwar Police Station, FIR is registered. And till the investigation is pending  and even then the opponent Nos. 4 & 5 continued to execute the fraudulent sale deeds in favour of some other prospective purchasers in spite of the execution of development agreement with OP Nos. 1 to 3. It is also submitted that the opponent Nos. 4 and 5 have threatened to the opponent Nos. 2 and 3 before the Sub-Registrar office and police complaint is lodged with the Sadar Police Station. Even the complainant submitted that the opponent Nos. 4 and 5 tried to remove them from their physical possession and police complaint is lodged by the complainant and other prospective purchaser and only after interference of  the police authorities, their possession is protected. This shows that the opponent Nos. 4 and 5 are indulged in unfair trade practice.
8. The opponent Nos. 1 to 3 have filed the copy of order below Exh. No. 5 dated 17/12/2020 in RCS No. 276/2020 (Ashok Vs. Umabai) passed by the Jt. Civil Judge Jr. Division, Nagpur, as per record on 21/12/2020. In this said order Hon’ble Civil Court has made the very important observations in para 32 and 33  has follows-

“32 .The plaintiff is asking for an injunction to restrain defendant nos. 2 and 3 from further alienation of suit property. But, the plaintiff is not saying anything about why he has sold the suit land to defendant nos. 2 and 3. When he has sold his right to one of the party, then he cannot ask to restrain that party from the enjoyment of the suit property. If he could not have received the consideration amount in the year 2012, then he cannot ask for the same by filing this suit against his co-purchaser i.e. defendant no. 4, original owner i.e. defendant no. 1 and bonafide purchaser i.e. defendant nos. 2 and 3. It is a fact that further alienation of the suit property may lead to confusion in the title of the suit property. If the plaintiff could have not sold the suit land to defendant nos. 2 and 3 in the year 2012, then the fate of the case could have been different.

33. Here, the plaintiff is selling the suit land to defendant nos. 2 and 3 in the year 2012 and after 8 years, he is asking for an injunction against the same party.”

      Thus, Hon’ble Civil Court has made very important observations regarding the conduct of opponent Nos. 4 & 5.

9. Thus, it is clear from all the documents on record that in spite of the agreement, opponent Nos. 1 to 5 failed to execute sale deed as agreed  and they committed deficiency in services. In spite of  the agreement for development of the land, the Opponent Nos. 4 & 5 failed to honour the terms of the agreement and had also executed sale deed in respect of the other prospective purchaser, though OP Nos. 1 to 3 have created third party interest after the development agreement. This shows that opponent Nos. 4 & 5 have indulged in unfair trade practices and hence opponent Nos. 4 & 5 are liable to pay more compensation to the complainant than the compensation to be paid by opponent Nos.  1 to 3. Hence for all the above said reasons, we answer point Nos. 1 to 3 in the affirmative. The cause of action in the present case is of continuous nature and hence the complaint deserves to be allowed partly. In the result, we proceed to pass the following order.

ORDER

1. The complaint is partly allowed as under.
2. It is hereby declared that Opponent Nos. 4 and 5 have committed unfair trade practices and deficiency in services and Opponent Nos. 1 to 3 have committed deficiency in services.
3. The opponent Nos. 1 to 5   are directed to execute the sale deed of suit plot No. 33 having 2005.33 sq. ft. area located at Mouza Chikhli (Khurd), Khasra No. 31/2-K, P.H. No. 39-A, Sheet No. 519/45, City Survey No. 76, Tahsil & District Nagpur and  shall deliver the physical possession of the plot in favour of complainant. The expenses for sale deed including stamp duty and registration charges shall be borne by the complainant.
4. In case opponents No. 1 to 5 failed to execute the sale deed, directed as above, the same may be execute through the proper Officer/ Commissioner  appointed by this District Commission  and complainant shall bear the expenses for the same as may be directed .

OR

5. In case there is legal or technical difficulty in executing the above directions given in para No. 3 or 4 above, then Opposite Party No. 1 to 5 shall pay the price of disputed  plot as per Government Ready Reckoner as applicable on the date of this order for the Zone where  disputed plot is situated or in any other  nearest  Zone from the location of disputed  plot.  In case the opponents failed to comply the above order about the payment of the price of the disputed plot as per Government Ready Reckoner within one month, the opponents shall jointly and severally pay  the interest on the price of the plot calculated  on the basic of Zonal valuation at the rate of 6 % per annum  to the complainant  from the date of this order till the date of actual  realisation  of the entire amount.
6. Opponents No. 4 and 5 shall jointly and severely pay compensation of Rs. 50,000/- and Rs. 10,000/- towards cost to the complainant.
7. Opponents No. 1 to 3  shall jointly and severely pay compensation of Rs. 10,000/- and Rs. 5,000/- towards cost to the complainant
8. Opponents No. 4 and 5 shall not  indulge in further unfair trade practices or shall not commit  further deficiency in service by making alienation of any kind in respect of the disputed  plot .
9. The above order should be complied within one  month from receipt of this order.
10. Copy of B & C of this complaint be returned to the complainant.
11. Copy of  order be furnished to both parties, free of cost.