Per Hon'ble Dr. S.K. Kakade, Presiding Member

1. This complaint is filed by Shri. Khilachand Bhojraj Mahajan of Mankapur, District. Nagpur M/s Bhumi Infrastructure through its partners and Mrs. Pushpa Devidas Thakre from Nagpur seekingpossession of the booked flat along with the amenities promised. 
2. The brief facts for deciding this complaint are as follows

The complainant, Khilachand Bhojraj Mahajan, resident of flat no. 201,  Meera Enclave, Plot number 95- 96, Omsainagar,  Koradi Road, Mankapur, district Nagpur, against,  the opponent no.1- Owner of the plot- Mrs. Pushpa Devidas Thakre,  resident of Mahadula,  near Balaji Kirana stores,  Chhindwara road,  Tahsil Kamptee, District Nagpurand Opponent no.2- M/s Bhumi Infrastructure through its partners having an office at Deepa Apartment, Medical College Square, Nagpur,  the other partners are as follows,  opponent no. 3 - Shri Ashish Rameshrao Barahate,  resident of House no. 38, Ward no. 01, Ram Nagar Bhokara, Koradi Nagpur,  opponent no. 4-  Shri Nikhil Deoraoji Pohane,  resident of plot no. 23,  Bandhu Nagar, near Shiv Mandir, Zingabai Takli, Nagpur,  opponent no. 5 -  Shri Pranjal Namdeorao Kamble,  resident of Sai Nagar, near water tank, Nagpur,  opponent no. 6 - Shri Ayupala  Bhushan Moon, resident of flat no. 208, Honey Archana Complex, Untakhana,  Medical road, Nagpur, all opposite parties are together referred henceforth as  “Builder/ Developer/ Promoters”

3. The complainant is an Indian citizen residing at the address mentioned, attracted by the housing scheme started by the respondents, in the name and style of Vatsalya Enclave, contacted the respondents to book a flat in the scheme. The Builder/ developer/ promoters sold flat no. 201-A with details as, having a built-up area of 56.72 Sq. Meters and super built-up area of 78.153 Sq. Meters to the complainant for a consideration of Rs. 24,00,000/- only. The complainant signed a Builder-Buyer agreement (Agreement of sale) on 7^thApril 2015, duly registered in the office of Sub Registrar, Nagpur vide document no. 1728/ 2015. Complainant has outright made all payments towards the purchase of the flat, as flat consideration Rs. 24, 00,000/-, electric and water connection Rs. 45,000/- and for extra work payment of Rs. 60,000/-. The complainant obtained a housing loan of Rs. 19, 00,000/- from the Union Bank of India.Despite paying the entireconsideration, the Builder/ developer /promoters have not handed over legal possession of the flat and did not execute the Sale Deed within 18 months of the payment of the entireconsideration, as per the agreement of Sale, also all promised amenities in the scheme are not available till today.
4. The complainant sent a legal notice to the Builder/Developer/Promoters on 14^thJanuary 2019 seeking immediate handover the booked flat with valid and legal possession and all promised amenities. In reply to this notice, through an Advocate, dated 23^rdJanuary 2019, the opposite parties stated that the allotment of the flat to the complainant has been canceled and 50 % amount of the consideration paid has been forfeited for violation of terms of the Agreement of Sale, dated 7^thApril 2015. Aggrieved by this the complainant approached this commission and filed the consumer complaint against the owner of the land and the builder/ developer/ Promoters- Bhumi Infrastructure through its four partners with prayers to declare that the opposite parties have committed “Unfair trade practice” and “deficiency in service” for not giving the possession and sale-deed of the suit property and not providing facilities and amenities and direct them to hand over legal possession by executing sale deed. Also, the complainant has prayed for an award of compensation of Rs. 5, 00,000/- for mental and physical harassment.
5. The opposite party no.2, defended the complaint by filing a reply-written statement.In spite of receiving the notices that were served to them, the opposite party no. 1,3,4,5 and 6, were not represented before the commission, hence the commission passed ex parte order against them. The complaint was pending for long and due for final hearing. Since the opposite parties remained absent for the last several dates of the hearing, it was decided to proceed with the final hearing and the matter is taken up for thefinal hearing. 
6. We heard the submissions and arguments advanced by the learned advocate of the complainant, Adv. Tushar Mandlekar and perused the record.Considering submissions of the advocate for the complainant,  record, and scope of the complaint, the following points arise for our determination, and our findings thereon are noted as against them for the reasons herein below:

POINTS:

REASONS:

7. AS TO POINT NO. 1: “CONSUMER’

The learned advocate for the complainant invited our attention to the payment of consideration Rs. 24, 00,000/- to the opposite parties and that the receipts were filed on record. Reference pages no. 58 to 64 of the complaint compilation. Perused the record. The complainant paid the consideration as per the details, given below,

Since the complainant paid the consideration while booking the flat and at the time of the Agreement of Sale of the flat, the complainant isa consumer of the opposite parties as per the definition of “consumer” under the Consumer Protection Act 1986. We answer POINT no. 1 as AFFIRMATIVE.

8. AS TO POINT NO.2: “DEFICIENCY

Learned advocate for the complainant, submitted that the complainant booked flat no. 201- A, by paying the entire consideration of Rs. 24, 00,000/- along with the other necessary payments, and even the Agreement of Sale was registered between the complainant and the Builder/ developer/ promoters on 7^th April 2015. According to him,

1. Our attention needs to be invited to thebooking number of the flat on the receipts. According to him, though the agreement was registered for the booking of flat number 201-A, the receipts mention flat number as 202. The complainant has filed this complaint with respect to the booked flat as per the agreement of sale. Issuing receipts to the complainant for another flat other than the one for which the agreement of sale was executed, itself is unfair trade practice.
2. According to the learned advocate, the notice reply received from the builder/ developer/ promoters also mentions flat no. 201-A.  He invited our attention to the written statement filed by opponent no. 2, which also admits the payment of consideration, receivedby them. 
3. The opposite parties have already replied to the legal notice sent by the complainant, that the booking of the said flat was canceled in view of non-compliancewith the agreement terms and that the 50% of the amount was forfeited by the opposite parties.  This clearly shows that the opposite parties are guilty of deficiency in service and unfair trade practices.  The learned advocate prayed for granting the prayers of the complainant. 
4. As per the submission of the learned advocate for the complainant the following necessary permissions have yet not been obtained by the opposite parties, for unknown reasons they are as follows;
   1. Building completion certificate,
   2. Occupation certificate,
   3. Firefighting no objection certificate, 
   4. Electrical NOC from concerned departments, 
   5. Lift inspector’s no objection certificate, 
   6. Aviation department clearances if any,
   7. Environmental clearance, 
   8. All other relevant permissions as required by law.
5. As promised by the opposite parties following amenities are to be made available along with the legal possession of the flat,  list of amenities is as follows, 

1. CCTV cameras, 
2. Elevators/ lift, 
3. Steel railing, 
4. Water facility/ drinking water, 
5. Adequate and reserved car parking. 

9. We have gone through the documents on record after hearing the arguments advanced by the learned advocate for the complainant, Shri. Mandlekar. We note our observations as follows,

1. The complainant paid the consideration to the opposite parties by cheques and RTGS, however, the receipts on record show that, the payment was with respect to flat no. 202 in the same building and location.
2. There is an agreement forthe sale of flat no. 201-A on record, executed by the opposite parties in favour of the complainant dated 7^th April 2015,  that is duly signed by the complainant Mrs. Gupta,  Mrs. Pushpa Thakre, the owner of the plot, and the partners of Bhumi Infrastructure.  The agreement mentions the receipt of Rs. 3.5 Lakh with respect to flat no. 201-A, and that further payment is to be made by the complainant as per the schedule, page 21 of complaint compilation.  The agreement also mentions that the sale deed will be executed within 18 months of the acknowledgment of the remaining balance sale consideration.
3. The reply given by the opposite parties dated 26^thApril 2019, says that the complainant has not paid the balance consideration for flat no. 201-A, and hence as per the terms and conditions, opposite parties have canceled the booking of the complainant.  The reply is accompanied by the letters which were sent by the opposite party- Bhumi Infrastructure Limited to the complainant, demanding the balance sale consideration. The letter dated 14^thOctober 2018, documentnumber 4, is the notice of cancellation of the booking of flat no. 201-A, forfeiting 50% of the Amount deposited by the complainant.
4. In the reply given by the opposite parties, they have not denied the receipt of the payment.  On the contrary, the opposite parties accept that the payment was done with respect to flat number 202 as per the receipts issued by them.  According to the opposite parties, the complainant never brought this to the notice of the opposite parties. 
5.  In view of the above observations, it is evident that despite accepting the payment for another flat no. 202, the opposite parties executed the agreement of sale of flat number 201- A, again an unfair trade practice.
6. Forfeiting 50 % of the consideration paid clearly indicates that the opposite parties are guilty of unfair trade practices and deficiency in service.  Hence we hold the opposite parties guilty of unfair trade practices and deficiency in service. 

In view of the above discussion, we answer POINT no. 2 as AFFIRMATIVE.

10. AS TO POINT NO. 3: RELIEFS

In view of the discussions under point no. 1 and 2, we hold that the complainant is entitled to reliefas per the prayer.  The opposite parties should hand over vacant and peaceful possession of flat number 201- A and also have to pay compensation, astheentire consideration amount was accepted by the opposite parties by issuing receipts with respect to flat no.202, and was utilized and despite the agreement of sale of flat number 201A, the same was not handed over. In view of this, we answer POINT no.3 as AFFIRMATIVE. 

11. AS TO POINT NO. 4: What Order?

We pass the following order, in view of the above discussions.

ORDER

1. Consumer Complaint is partly allowed with cost quantified to Rs. 50,000/- to be paid by the opposite parties jointly and severally to the complainant within four weeks from the date of receipt of the copy of this order.
2. It is declared that the opposite parties no. 1 to 6 have indulged in unfair trade practices and are guilty of deficiency in service.
3. The opposite parties are hereby directed to handover peaceful legal possession of Flat no. 201- Having a built-up area of 56.72 Sq. Meters and super built-up area of 78.153 Sq. Meters, in “VATSALYA ENCLAVE” located on Plot no.12, Near Anjana Devi Mangal Karyalaya, Zingabai Takali, Nagpur, at Mauza Zingabai Takli, Ward no.61, P.H.no.11, Khasra No. 58/1, City Survey No. 111, Sheet No. 569/45, House No. 577/A/12; after executing the Sale Deedin favour of the complainant along with all promised amenities in the Agreement of Sale, within three months from the date of receipt of copy this order.
4. The opposite parties are hereby directed to pay interest @ 9 % per annum on the consideration amount Rs. 24, 00, 000/-, paid to the opposite parties, from the date of the Agreement of Sale till the actual realization
5. The opposite parties are directed to pay Rs. 2, 00,000/-only towards the compensation for causing financial hardship, and emotional, mental, and physical agony.
6. The above order is to be complied with by the opposite parties no.1 to 6 jointly and severally within three months from the date of receipt of the copy of this order, failing which the amounts will carry interest @ 12 % per annum from the date of this order.

Copy of this order is to be given to all the parties free of cost.