Orissa

Cuttak

CC/291/2023

Kishore Kumar Panda - Complainant(s)

Versus

Managing Director, Prabhat Kumar Nanda,Raghupatee Estate & Builders (P) Ltd - Opp.Party(s)

A K Samal

19 Jun 2024

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

C.C.No.291/2023

 

Kishora Kumar Panda(a Non-resident Indian),

S/o: Late Bhimasen Panda,

Acentral residential address:

At/PO:Darpani Garh,Via:Chandikhol,

Dist:Jajpur,Odisha, presently residing

At U.S.A,At-500 Luciana Dr. Reno,NV 89521,

United States of America(U.S.A),

Represented by his younger brother,

Nihar Ranjan Panda,

S/O: Late Bhimasen Panda,

At/PO:Darpani Garh,Via:Chandikhol,

Dist:Jajpur,Odisha                                                          ... Complainant.

 

                                                Vrs.

1.       Raghupatee Estate & Holding Pvt. Ltd.,

      Office At:Plot No.3,Shakti Nagar,

Madhupatna,Town/Dist:Cuttack,

Pin-753012,Odisha

Represented by its Managing Director,

Prabhat Kumar Nanda.

 

2.       Prabhat Kumar Nanda,

Managing Director

Raghupatee Estate & Holding Pvt. Ltd.,

S/o: Late Purna Chandra Nanda,

Resident At:Samanta Sahi,

PO:Buxibazar,P.S:Purighat,

Town/Dist:Cuttack,Pin-753001,Odisha.                    ... Opp. Parties.

 

 

Present:           Sri Debasish Nayak,President.

                                    Sri Sibananda Mohanty,Member.

 

             Date of filing:     25.08.2023

            Date of Order:   19.06.2024

 

For the complainant:            Mr. A.K.Samal,Advocate.

For the O.Ps             :             Mr. R.K.Pattnaik,Adv. & Associates.

 

               Sri Sibananda Mohanty,Member.                                

The complainant is a non-resident Indian (NRI) and is residing in the United States of America (USA) having his ancestral residential house in the district of Jajpur has filed the present case through his power of attorney holder, Nihar Ranjan Panda, who is his younger brother as it is not possible on his part to look after the case.  The case of the complainant in short is that in pursuant to the advertisement made by the O.Ps, he had applied for a developed plot in “Bhupati Vihar” project.  It is stated by the complainant that initially, the name of the O.P no.1 was M/s. Raghupati Estate & Holding which was a partnership farm and O.P no.2 was the Managing Partner of the said Farm but subsequently the said partnership farm was converted to a Private Limited company and presently known as Raghupati Estate & Holding Pvt. Ltd. It is stated by the complainant that he had applied to purchase a piece of plot measuring an area of 4000 Sft. at a cost of Rs.170/- per Sft. in Bhupati Vihar Project located at Mouza Anantapur, Thana: Balianta, Dist: Khordha launched by the O.Ps. It is alleged by the complainant that the staffs of the O.Ps namely Mr. Manas Pattnaik and Ms. Nibedita Tripathy took him to the project site and showed him the approximate location site of the plot and handed over a copy of the Patta(ROR) to him.  They also assured to sell plot no.861 to him which is owned by their company.  As per the assurance of the O.Ps, the complainant deposited Rs.2,50,000/- on 7.7.2010 towards initial deposit money with the O.Ps with proper receipt.  It is stated by him that he was asked to pay the balance amount within six months at the time of registration of the plot when the plot would be ready with access road and other amenities. The O.Ps thereafter remained silent.  But to his utter surprise when he went to the project site on 27.3.2012 he found that no approach road has been made to the said plot but the O.Ps assured  him about the construction of the approach road within a short time and insisted the complainant to pay the rest dues.  As there was no development of the site, the complainant refused to pay the rest dues. However, on repeated persuasion made by the O.Ps, the complainant  wanted to pay only an amount of Rs.50,000/-to them and agreed to pay the balance amount at the time of registration of the plot in question.  ­­­­­At that time the complainant was convinced by the staffs of the O.Ps to give cheque in the name of Debasis Nanda who is the Managing Director of Rudra Infra Projects Pvt.Ltd. and told by the staffs that the project where the complainant would be allotted a plot was being dealt by said Sri Nanda.  Accordingly the complainant paid Rs.50,000/- by way of cheque to the O.Ps on 27.3.2012 in the name of Debasis Nanda.  Thereafter, the staffs of O.Ps issued money receipt in favour of the complainant of Rudra Infra Projects Pvt.Ltd.  But the O.Ps did not take any steps for allotment of plot in favour of the complainant.  The complainant was in constant touch with the O.Ps by visiting as well as through e-mail, WhatsApp’s chats, etc.  But the O.Ps did not allot the plot in favour of the complainant.  The complainant being disgusted with the actions of the O.Ps, made a written complaint in January,2020 through  e.mail before the Economic Offence Wing(EOW) against the O.Ps by submitting an application before them.  Thereafter, the staffs of the O.Ps intimated the complainant that the O.P no.2 is in the custody of Law Enforcing Authority.  The staffs of the O.Ps as well as wife of the O.Pno.2 contacted the complainant and assured him for allotment of plot but did not allot the plot.  The staffs of the O.P no.1 and wife of O.P no.2 were in constant touch with the complainant through WhatsApp chatting  and message and ware assuring  for allotment of another plot as the O.Ps disposed of the earmarked plot in the meantime but stopped conversation after May,2022.  As the O.Ps did not allot a plot in their “Bhupati Vihar” project, the complainant has filed the present case with a prayer for a direction to the O.Ps to allot a plot measuring 4000 Sft. at old rate or in the alternatively has prayed for a direction to the O.Ps to allot an equivalent plot acceptable to the complainant if the plot in “Bhupati Vihar” project would not be available or in the alternatively has prayed for a direction to the O.Ps to pay differential cost taking into consideration the present market rate as Rs.1300/- per Sft. for 4000 Sft. of developed plot.  Besides, the complainant has prayed for a direction to the O.Ps to pay Rs.4,00,000/- towards compensation for financial loss, mental agony and harassment caused by the O.Ps as well as Rs.50,000/- towards the cost of litigation and to pass such other order as deemed fit and proper.

          In order to prove his case, the complainant has filed copies of several documents.

2.       The O.Ps have contested the case  and filed their written version.  It is stated by the O.Ps that the dispute pertaining to immovable property such as sale and purchase of land does not come within the definition and scope of service as defined under C.P.Act,2019.  It is further stated by the O.Ps that the complaint case is barred by limitation.  It is also stated by the O.Ps that Rudra Infra Project  Pvt. Ltd., Mr. Debasis Nanda and Manas Pattnaik have not been made parties to the present proceeding who are the necessary parties as they have received money from the complainant. Hence, it is stated by them that the case is liable to be dismissed on that ground alone.  It is also stated by the O.Ps that the complainant alleges about the fraud and forgery which cannot be adjudicated before this Commission.  The O.Ps denied to have received the consideration amount of Rs.3,00,000/- from the complainant towards allotment of the plot.  It is stated by them that they have no relationship with Manas Pattnaik nor with Debasis Nanda.  It is stated by the O.Ps that the complainant had not paid any consideration money to them.  Hence it is stated by them that there is no question of deficiency of service on their part and prayed for dismissal of the case.

3.        Keeping in mind the averments as made in the complaint petition and the contents of the written version of the O.Ps, this Commission thinks it proper to settle the following issues in order to arrive at a definite conclusion here in this case.

               i.   Whether the complainant has paid consideration money or not?

                 ii.   Whether the complaint case is barred by limitation as per C.P.Act,2019 ?

                  iii.    Whether the case of the complainant is maintainable?                                           

                iv.    Whether there was any deficiency in service on the part of the  O.Ps  and  if they have practised any unfair trade ?

                 v. Whether the complainant is entitled to the reliefs as claimed by him?

Issue no.I.

The complainant alleged to have deposited Rs.3,00,000/-.  But he has filed only money receipt dt.7.7.2010 towards the deposit of only Rs.2,50,000/- to the O.Ps on 7.7.2010.  It is also alleged by the complainant that he had paid Rs.50,000/- by way of cheque on 27.3.2012 to one Debasish Nanda at the instance of the staff of O.Ps,  who is the M.D. of Rudra Infrastructure Project Pvt. Ltd. The O.Ps have not disputed the fact that  the complainant had applied  for allotment of a plot in their scheme but stated that they have no link with Mr. Debasish Nanda nor with Rudra Infrastructure Project Pvt. Ltd. to whom the complainant had paid Rs.50,000/.  The O.Ps have not disputed money receipt of Rs.2,50,000/-  dt.7.7.2010 issued by them, i.e.  Raghupati Estate Holding .  The complainant also could not prove by filing any evidence to the effect that at the instance of the O.Ps he had paid Rs.50,000/- to the  Rudra Infrastructure Project Pvt. Ltd. towards the consideration money of his plot.  Hence, it is held that the complainant had paid the consideration money/initial deposit amount of Rs.2,50,000/- only towards the  allotment of plot in his favour but the O.Ps neither allotted a developed plot in his favour nor has refunded his initial deposit amount.  Hence, the complainant is a consumer under the definition of C.P.Act,2019 as he has paid part consideration amount/initial deposit amount for hiring the service of the O.Ps.

Issue No.II.

          As per the advertisement made by the O.Ps, the complainant had applied for allotment of a plot in the Bhupati Vihar Project on 7.7.2010 measuring an area of 4000 Sft. at the cost of Rs.170/- per Sft., located at Mouza: Anantapur, Thana: Balianta in the district of Khurda.  Subsequently, on 27.3.2012, the complainant at the instance of staffs of the O.Ps paid Rs.50,000/- towards the consideration money to one Debasish Nanda, who is M.D of Rudra Infrastructure Project Pvt. Ltd., which fact is disputed by the O.Ps.  It is alleged by the complainant that the O.Ps had promised to allot  plot no.861 to him.   The complainant also has stated that the said plot has already been allotted in favour of another person without allotting in his favour.  Thereafter, the complainant alleged that the O.Ps took time for allotting another  plot in his favour.  The complainant alleged to have constant touch with the O.P no.2, the staffs of O.P no.1 and wife of the O.P no.2 in connection with allotment of plot in his favour.  The complainant has filed copy of e-mail communications made by him with Pravat Kumar Nanda and Debasish Nanda, e-mail exchanges between him with one Manas Pattnaik, staffs of the O.P no.1, WhatsApp chats between him with Mr. Pravat Kumar Nanda/O.P no.2, WhatsApp chat exchanges between him with Pragyan, who is the wife of O.P no.2, as well as WhatsApp chats between him with one Mr. Swain, the staff of the O.P no.1.  Such statement of the complainant as regards to conversation between the parties has remained unchallenged.  WhatsApp chat as filed reveals that the O.Ps all along were assuring to the complainant to allot a plot till 19.8.2021 and thereafter remained silent.  The complainant has filed evidence affidavit to prove his case whereas the O.Ps have not filed any evidence on affidavit. The complainant also had complained against the O.Ps through e-mail  in January,2020 before the Economic Offence Wing(EOW).  Subsequent to the filing of the complaint before the EOW, as stated earlier, WhatsApp chats made as regards to allotment of the plot by the wife of the O.P no.2 with the complainant as well as by one Mr. Swain, staff of the O.P no.1 with him.    Thereafter, the complainant had exchanged WhatsApp message with wife of O.P no.2 till 31.5.2022 but the O.Ps did not take any step in allotting a plot in his favour.  The complainant is a NRI and resides in U.S.A.  He may have faced difficulties in coming Odisha for filing the case and for which he executed “Power of Attorney” on 10.6.2023 at Cuttack in favour of his younger brother to file and conduct the present case.  The O.Ps/wife of O.P no.2  had made conversation as usual which is aimed towards the allotment of plot in favour of the complainant till 19.08.2021.  The complainant has filed the case on 25.8.2023.  In view of the circumstances as stated above it is held that the complainant has explained the delay satisfactorily in filing the present case.    Be that as it may, there is a pertinent decision of Hon’ble Supreme Court in the case of Meerut Development Authority Vrs. M.K.Gupta reported in IV(2012) CPJ 12 (SC) wherein  the Hon’ble Supreme Court did not entertain the limitation plea taken by the appellant and held that the complainants had a recurrent cause of action to institute the consumer complaint.  In that case, the cause of action had arisen in the year 1992 but the case was filed in the year 2009.  The Hon’ble Supreme Court dismissed the case filed by the Meerut Development Authority as well as imposed cost of Rs.50,000/- upon the Development Authority.  In another case, in the case of Samrudhi Cooperative Housing Society Ltd. Vrs. Mumbai Mahalaxmi Construction (P) Ltd. reported in 2022(1) C.Pact,429  (Supreme Court), the Hon’ble Supreme Court has held that continuous failure of the respondent/builder to obtain the occupation certificate is a deficiency in service on the part of the builder and constitutes continuing cause of action.  It is well settled law that the cause of action will remain flexible to be gathered from bundle of facts arising in each case.  It has not been laid in strait jacket formula.  There is another pertinent decision as regards to limitation in the case of Mehnga  Singh Khera and Ors. Vrs. Unitech Ltd. reported in (I) 2020 CPJ 93 wherein National Commission has held as under: -

“The Opposite Party contested the complaint as being barred by limitation prescribed under section 24-A of the Consumer Protection Act,1986 since the last date stipulated in the buyers’ agreement for giving possession of the flat expired more than 2 years ago.  It is a settled legal proposition that failure to give possession of flat is continuous wrong and constitutes a recurrent cause of action and as long as the possession is not delivered to the buyers, they have every cause, grievance and right to approach the consumer courts.  It is only when the seller virtually refused to give possession, that the period of limitation prescribed under section 24-A of the Consumer Protection Act,1986 would start.  The complainant has to file a case within two years from the date of refusal of delivery of possession to the buyer.  In the present case, the Opposite Party has not refused possession of the flat to the complainants at any point of time.  Therefore, the cause of action continues to subsist in favour of the Complainant.”

“ The learned counsel for the complainant relied upon a decision of Hon’ble National Commission reported in 2014(2) CPR-32 (NC) in the case of Rajubhai Tank,Director of Odhav Hari Developers Ltd. & Ors Vs. Bindraben Bharat Kumar Mavani (minor) through her natural guardian and another, wherein the Hon’ble National Commission relying upon the order dt.11.11.2013 of Hon’ble Supreme  Court in the case of Bhagyalaxmi Construction Vs. Monoranjan Basal & Ors in SLP(Civil) No.(S) 28910/2013 as well as other decisions of Hon’ble National Commission has held that cause of action is continuous and unless and until possession is delivered and the sale-deed are not executed”.   In the case at hand the O.Ps have neither executed the sale deed nor have given possession of the plot as well as have not refunded the initial deposited amount to the complainant.  The O.Ps have relied upon the decision of the Hon’ble Supreme Court in the case of State Bank of India Vrs. B.S Agriculture Industries reported in 2000 (5) SCC at page-121 and urged to dismiss the case on the ground of limitation.  The decision as cited by the O.Ps is not applicable to the facts and circumstances of the present case.

          In view of the discussions as made above and the decisions of the Hon’ble Supreme Court and National Commission, it is held that the complaint case has been filed within the period of limitation.  Hence this issue goes in favour of the complainant.

Issue No.iii.

          The complainant has filed the present case through his Power of Attorney holder, who is his younger brother as he resides in USA, which is maintainable as it is not possible on his part to look after the case.  In pursuant to the advertisement made by the O.Ps, the complainant had applied for allotment of a developed plot on 7.7.2010 in the scheme of O.Ps  namely “Bhupati Vihar” project.  The complainant has filed copies of documents as regards to business and functioning of the O.P no.1 as well as advertisement of their different projects by downloading the same from the official Website of O.P No.1 i.e. Raghupati Estate & Holding Pvt. Ltd.  The said document/advertisement reveals that the O.P no.1 has launched various housing as well as plotting projects at Bhubaneswar & Cuttack, so also it reveals that there are some future Project of the O.P no.1 for allotment of plot and house.  The copy of the detailed advertisement about “Bhupati Vihar” Project have been filed by the complainant.    The said advertisement reveals that the area of that project is of 7 acres of land where both the residential plots as well as housing schemes are available.  The O.Ps  have not disputed about the application for allotment of developed plot by the complainant.  The O.Ps have disputed about the deposit made by the complainant.  While answering issue no.(i) it has already been held that the complainant had paid a sum of Rs.2,50,000/- towards the part consideration amount to the O.Ps.  It is not the case of the O.Ps that they do not allot developed plot having infrastructural facilities but allot only undeveloped plot.  In view of the observations made above, it is held that the O.Ps allot only developed plots and houses having infrastructural facilities.  At this juncture, learned counsel for the complainant relied upon a decision of the Hon’ble Supreme Court in the case of M/s. Narne Construction Pvt. Ltd. Vrs. Union Bank of India and others which is also reported in AIR 2012 (S.C) at page-2369.  There is also another decision in this regard in the case of Haryana State Agricultural Marketing Board Vrs. Bishamber Dayal Goyal and others reported in AIR 2014 Supreme Court at page-1766.  In both the cases, the Hon’ble Supreme Court has held that selling of plot by the builder assuring infrastructural facilities comes under the definition of “service” under the C.P.Act and are  amenable to the jurisdiction of the Consumer Commission.  In view of the above decisions, the case of the complainant is maintainable before this Commission.  On contrary, the learned counsel for the O.Ps relied upon order dated 26.9.2013, passed by the Hon’ble Supreme Court in the case of Ganeshlal  Vrs. Shyam in Civil Appeal no.331/2007 wherein the Hon’ble Supreme Court has held that if the sale of plot of land simpliciter, then the consumer complaint would not lie.  But here in the present case, the O.Ps had assured for providing infrastructural facilities in their advertisement  as well as in the application of the scheme itself.  As such, the decision cited by the O.Ps is not applicable in the present case.  The learned counsel for the O.Ps then urged that as per the Sec-2(37) (ii)(a) of the C.P.Act,2019, the dispute pertaining to the immovable property, such as sale and purchase of land does not come within the ambit and scope of C.P.Act,2019.  On the other hand, learned counsel for the complainant relied upon a decision of Hon’ble Kanatak State Consumer Disputes Redressal Commission, Bangalore in the case of Annamma Jiney Jose Vrs. M/s. Svamitva Infra Pvt. Ltd. decided on 27.10.2021 in First Appeal no.A/494/2021. In that case the Hon’ble State Commission interpreted the Sec-2(37) of the C.P.Act,2019 as well as Sec-2(42) of the C.P.Act,2019 and held that complaint as regards to non-allotment of plot is maintainable before the Consumer Commission.  Be that as it may, the definition of “service” as defined under the C.P.Act,1986 has not been changed in 2019 Act.  Hence, as per the decision of the Hon’ble Supreme Court decided in AIR(2012) SC,2369 and AIR 2014 SC,1766  the dispute as regards to non-allotment of developed plot comes under the definition of “service” and come under purview of Consumer Commission.

          In view of the discussions as made above as well as the decisions of the Hon’ble Supreme Court, the present complaint case is maintainable before this Commission.

Issue no.iv.

              After perusing the complaint petition, written version, evidence affidavit filed by the complainant, written notes of submissions as filed from both the sides as well as the copies of documents available in the case record, it is noticed that the complainant had applied for a plot in the scheme as advertised by the O.Ps.  The complainant had applied for a developed plot in the project of O.Ps namely “Bhupati Vihar” launched by the O.P on 7.7.2010. It has already been held while answering issue no.i that  the complainant had paid Rs.2,50,000/- towards initial deposit amount/part consideration amount to the O.Ps for allotment of a plot in their project.  The statement of the complainant by way of affidavit reveals that he was asked by the O.Ps to pay the rest consideration amount within 6 months when registration of plot would be made and O.Ps had assured him to complete infrastructural development by that time.  This statement of the complainant has remained unchallenged being not controverted specifically by the O.Ps.  The O.Ps have neither intimated the complainant about completion of infrastructural development nor intimated to the complainant for registration of the plot.  The O.Ps also have not refunded the part consideration money till date.  It reveals from the WhatsApp chats between the complainant with the O.Ps that the O.Ps were all along giving false assurance to  the complainant to allot a plot since 2010.  The WhatsApp chats made between the parties have already been dealt while answering the issue no.(ii).  The details of WhatsApp chats as filed by the complainant has not been challenged by the O.Ps.  Surprisingly, after filing of the case, the O.Ps have taken false plea that the complainant has not paid any amount to them. The O.Ps neither have allotted the plot in favour of the complainant nor have returned the initial deposit amount of Rs.2,50,000/- to the complainant.  The O.Ps had never intimated the complainant as regards to ready of plot for possession or for registration of the plot.   The O.Ps can dispute the payment of Rs.50,000/- made to Mr. Debasish Nanda, M.D of Rudra Infrastructure Project Pvt. Ltd. but they cannot dispute the entire payment made by the complainant as they have received Rs.2,50,000/-  from the complainant. As such, the conduct of the O.Ps reveals that they are practising unfair trade.       In view of the above discussions, it is held that the O.Ps have committed deficiency in service as well as have practised unfair trade.

Issue no.v.

          This Commission has already held that the complainant has paid part consideration money of Rs.2,50,000/- on 7.7.2010 towards the cost of the plot but not Rs.3,00,000/- as alleged by the complainant for allotment of 4000 Sft. of land at “Bhupati Vihar” project of the O.Ps.  The O.Ps till date have not allotted any plot.  The O.Ps are required to allot a plot having 4000 Sft. in “Bhupati Vihar” project or an equivalent plot acceptable to the complainant at the old rate i.e. pricing of plot in the project of the year 2010, when the complainant had applied for the plot.  The O.Ps are required to compensate the complainant as in the meantime 14 years have elapsed and thereby construction cost of the building has been highly escalated.  In case the O.Ps are not in a position to allot a suitable plot, then also the O.Ps are required to compensate the complainant as in the mean time land cost has been escalated and the complainant has to bear that cost.  Hence, it is so ordered;

                                                          ORDER

The case is decreed on contest against the O.Ps, who are found to be jointly and severally liable here in this case.  The O.Ps are thus directed to allot a plot measuring an area of 4000 sft. in favour of the complainant at a cost of Rs.170/- per Sft. or the rate which was prevailing in the year 2010 in “Bhupati Vihar” project or in the alternatively allot a suitable plot of exact area at a cost prevailing in the year,2010 acceptable to the complainant.  In the event the O.Ps are not in a position to allot a suitable plot to the complainant, then they are directed   to refund a sum of  Rs.2,50,000/- to the complainant with 8% interest per annum from  7.7.2010, when the complainant applied for allotment of plot till the total amount is quantified  as well as  they are directed to pay a sum of Rs.20,00,000/- to the complainant towards the escalation cost of the land.  The O.Ps are also directed to pay a sum of Rs.10,00,000/- to the complainant towards the compensation for escalation cost of the building materials for construction of building as in the meantime such cost has increased considerably as well as a sum of Rs.4,00,000/- towards the compensation for mental agony and harassment for 14 years.  So also, the O.Ps are directed to pay  a sum of Rs.50,000/- to the complainant towards his litigation cost. This order is to be carried out within a period of 30 days from the date of receipt of copy of this order.

Order pronounced in the open court on the 19^th day of June,2024 under the seal and signature of this Commission.         

                                                                          Sri Sibananda Mohanty

                                                                                                Member

 

                                                                                     Sri Debasish Nayak

                                                                                               President