(Passed this on 15th November, 2016)
Shri. S.P. Muley, President –
This complaint u/s 12 of the Consumer Protection Act is filed against three Opposite Parties alleging deficiency in service, though reliefs are claimed only against the OP 1.
Facts in short that the OP1 is a registered company and is engaged in building construction. The OP 1(a) to 1(d) are Chairman and Directors of the said company. The OP 2 is Maharashtra Airport Development Company (MADCL) which is incorporated and promoted by the State Government for development of land. The OP 3 is State Bank of India. On 22.6.2006 the OP 1 and 2 entered into an agreement whereby the OP1 to construct and develop a project within 24 months of the date of Power of Attorney. The OP 2 was to allot its land to the OP 1. The said land is situated at MIHAN, Wardha Road, Nagpur. A Power of Attorney was executed in favour of the OP 1 and accordingly he was to complete the project by 2009. The complainants were approached by the OP1 for purchasing a flat. Accordingly an agreement was entered into between them. The complainants were allotted an apartment No. B-0402 on fourth floor admeasuring 1282 sq.ft. for total consideration of Rs. 34,55,383/-. The complainant, OP1 and OP 3 entered into tri partite agreement. The OP3 agreed to finance the flat of the complainants. The project is still incomplete on account of several disputes between the OP1 and 2. The OP 2 has terminated the contract of the OP1 and so the OP1 cannot complete the project and the scheme has come come to an end.
The OP1 and 2 are now settling their dispute through an Arbitrator. The complainants have paid Rs.14,42,250/- to the OP1. There is no likelyhood of completion of the project in near future. The agreement between them and the OP1 has become infructuous. The complainants therefore demanded their amount from the OP1. But the OP1 failed to comply the demand. Hence it is prayed to direct the OP1 to return a sum of Rs.14,42,250/- with 24% interest to them along with compensation and litigation cost.
OP 1 and 1(a) to 1(d) have been duly served, but failed to appear and contest the matter. Hence, the matter proceeded ex-parte against them.
OP2 has filed its written version at Ex.12. In fact, no relief is claimed against it, nor any grievance is made by the complainants. Therefore it is not necessary to go in detail of its version. It is stated that it being a registered company is promoted by the State Government to develop MIHAN project at Nagpur. It is a nodal agency appointed for development of the project and Special Planning Authority under the provisions of Maharashtra Regional and Town Planning Act. It is not disputed that on 22.6.2006 the OP1 and 2 entered into an agreement whee rby the OP1 agreed to develop a project known as ¨First City¨. For development of residential township at MIHAN the OP1 was allotted 31 acres of land at Mouza Khapri. As per the agreement the OP1 was solely responsible for marketing of the project and was supposed to undertake all activities like planning, designing, financing, etc at its own cost. There is an indemnity clause in the agreement whereby the OP1 agreed to indemnify and hold harmless the OP2 from any losses,, claims, damages, liabilities, costs out of any act, deed or omission by the OP1. The complainants have not entered into an agreement with the OP2 and made payment to the OP1 only. Admittedly the project is incomplete and the contract with the OP1 has been terminated and so also power of attorney due to breach of terms and conditions of the agreement. The OP1 is not an agent of the OP2 and their relation as per their agreement is on principal to principal basis. It has also permitted the OP1 to mortgage two parcels of land for securing term loan snctioned by Vijaya Bank to the OP1. The loan was to be discharged from lease premium of units being constructed. Even though the OP1 secured loan, it failed to repay the same. So the loan a/c becomes NPA and said bank started proceeding under SARFAESI Act against the OP1 and 2 and attached imortgaged land. The said bank now insisting it t reapy loan with interest. Thus the OP2 has suffered huge financial loss due to the OP1. It is thus prayed to dismiss the complaint against it.
OP3 failed to file its written version to the complaint. Therefore the complaint proceeded without its version.
We have heard learned counsels for the complainants and OP2. Perused documents. Upon consideration of the same we record our findings and reasons as under.
FINDINGS AND REASONS
As can be seen from the complaint, all the grievances of the complainants are against the OP1 only, of which the OP 1(a) to 1(d) are Chairman and Directors. The OP2 and 3, though are joined, no grievnace is alleged and nothing is claimed against them. In fact, they have been unnecessarily made as OPs in this case. So suffice it to say that the OP 2 and 3 are not concerned with the dispute of the complainants and the complaint is therefore liable to be dismissed against them.
The OP 1 and its Directors did not take part in the proceeding nor did they contest the complaint. Therefore there is no defence to the allegations and complaints made by the complainants. The complainants have supported their case with documents. Document No.1 is the agreement between the OP1 and 2 by which the OP1 agreed to develop and construct the project within 24 months at MIHAN notified area. It contains all the terms and conditions as described by the OP2 in its written version. Document No.2 is the allotment letter of Apartment No. Symphony 1 B 0402 in the proposed township, First City, MIHAN, Nagpur in favour of the complainants. Total consideration was Rs. 34,55,383/- including maintenance and other charges. In pursuance of the Allotment letter the complainants executed tri partite agreement (document No.3) with the OP1 and 3. The OP3 agreed to provide finance to the complainants. As per Clause No.10 of this agreement in the event of cancellation of the Flat for any reason whatsoever the Builder/Developer undertook to refund the entire amount advanced by the Bank within 15 days from the date of cancellation. It is stated that the complainants have paid Rs.14,42,250/-. As per the tri partite agreement the complainants have paid initial amount Rs. 9,42,250/- to the OP1 and a sum of Rs.25,13,133/- was to be paid by the OP3 directly to the OP1. There are notices to the OP1 wherein payment of Rs.14,42,250/- is mentioned and the OP1 never replied the notices thereby indirectly admitting payment of Rs. 14,42,250/-. That apart, the complainants have produced documentary evidence of payment of Rs. 14,42,250/-. The copy of ledger account of the complainants maintained by the OP1 confirms the payment.
It is also evident that the project could not be completed and the OP1 could not even repay the loan to the Bank. Therefore the Bank proceeded against the OP1 under the SARFAISI Act. The agreement has been cancelled and now the complainants are entitled to get refund of amount paid by them. Since the case of the complainants has gone unchallenged, it stands proved against the OP1 to 1(d). As said before no reliefs are claimed against the OP2 and 3 and therefore the complaint deserves to be allowed only against the OP1 to 1(d). The project undertaken by the OP1 to develop the land allotted by the OP2 in MIHAN is now in limbo. Naturally the complainants having no guarantee of completion of the project decided to cancel the agreement. They are entitled to get refund of their amount. Hence, we allow the complaint and pass the following order.
ORDER
- The complaint is partly allowed.
- The OP1 and 1(a) to 1(d) are directed to refund jointly and severally a sum of Rs. 14,42,250/- with 18% p.a. interest to the complainants.
- They are further directed to pay compensation of Rs.25,000/- jointly and severally to the complainants for mental and physical agony and litigation cost Rs.5000/-.
- The OP 1 and 1 (a) to (d) shall comply the order within 45 days from the receipt of the order.
- Copy of the order be given to both the parties free of cost.
