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

1. The complainant had approached to respondent Nos. 1 to 3 to book a flat bearing flat No. 308, in the township to be developed by respondents on the land situated at Kinhi, District Nagpur being part or portion of entire project known as ‘Prathamesh Apartment’ of the township known as ‘Ashtavinayak Empire’ (Ashtavinayak City) admeasuring about 788 sq. Ft.,  and paid Rs. 1,100/- for booking of the said flat on date 10/11/2012.  After booking the said flat, the complainant had further paid total amount of Rs. 2,22,216/- in cash from date 10/11/2012 to 2/3/2013. On date 2/3/2013, agreement of sale was executed by the respondents in favour of complainant and respondent had agreed that the proposed construction and possession of the said flat No. 308 will be handed over within 36 months from the date of agreement. On date 12/11/2014, respondents had issued a letter stating that the possession of the said flat in Ashtavinayak City, Mauza Kinhi, District Nagpur, will be given to the complainant within a period of 5 years from the date of agreement of sale dated 2/3/2013.But the respondents were not in a position to construct the flat; the complainant issued notice to respondents on date 7/11/2016 for the cancellation of above said flat. The respondents replied on this notice on date 30/12/2016, that as they are unable to construct the flat in this scheme, the complainant should move for another flat in the another scheme of respondent.   But complainant is not ready for the same.
2. As per the demand of the complainant, Forum should declare that there is deficiency in services of the respondents.  The respondents should jointly and severely return the amount of Rs. 2,22,216/- along with the 24 percent per annum interest, from the date of payment made by the complainant & the respondents  shall pay for physical and mental harassment including litigation cost of Rs. 17,77,784/-
3. The Forum has sent notice to respondents. After receipt of notice, the advocate of respondent appeared before the Forum and seeks time to file written version. But as the 45 days were expired, the  Forum passed the order to pay cost. But respondents  have not paid amount of cost of Rs. 1,000/- in the Forum; so on date 26/09/2017, the Forum passed the order, the case to proceed without written version  of respondents.
4. We have heard both the sides and also gone through the documents attached by complainant and opponent. From above facts, it is clear that   complainant is a consumer of respondent. Complainant submitted all original receipts given by OP, including original agreement to sale on 100/- Rs. Stamp paper and possession letter of flat No. 308 on letterhead of OP.
5. Advocate Mr. Gangwal was appeared before the Forum and on date 27/6/2019 and paid cost of Rs. 1,000/- to complainant. So the reply of the respondent was taken on record. As per reply of respondent, previous counsel had not filed reply of respondent so they engaged new counsel Mr. Gangwal. As per his contention,  due to non deposition of further instalment as per agreement, flat development cannot be completed within time limit. So complainant has breached the terms and condition mentioned in booking form as well as agreement. So, the complainant is defaulter in terms of payment. On this count, the complaint of complainant is liable to be dismissed. It is admitted that the complainant had paid Rs. 2,22,216/- but he has not paid Rs. 8,88,864/- as per agreement. It was duty of the complainant to pay entire amount of consideration within time limit as per the agreement. So, the project cannot be completed, and the speed of project has been reduced. For the sale deed of land owner to builder Ashtavinyak, respondents have invested lakhs of rupees. Also respondents have invested crore of rupees in the said project. Now this project is in loss due to non payment of most of the customers. Also, the agreement of the complainant was on 10/11/2012 and the complainant filed a complaint in Forum after three years, which is barred by the law of limitation. Also this is the case of civil nature.  So, the complainant should approach to Civil Court and not in this Forum. This shows that, respondents have not committed any unfair trade practice or deficiency in services. It shows that, the complainant is solely responsible. So, the respondent requested to dismiss this complaint with heavy cost.  
6. The respondent has relied on the judgement of Hon’ble National Commission in the case of Manas Developers Vs. Madhur Arjun, III (2015) CPJ 192 (NC).
7. We heard both the sides. It is admitted by OP also, that the complainant had paid Rs. 2,22,216/- but he has not paid Rs. 8,88,864/- as per agreement. It was duty of the complainant to pay entire amount of consideration within time limit as per the agreement. But it is also the duty of OP to complete the construction and to keep the flat ready for possession including development. The OP relied on the above judgment,  but the facts in this judgment are not exactly to this case. The agreement of the complainant was on 10/11/2012 and the complainant  filed a complaint in Forum after three years. But this is the continuous cause of action. Builder (OP) received the money of Rs. 2,22,216/- from  the complainant. But he did not develop and construct the above said Flat No. 308 and also not refunded the amount, he has received by the complainant. This is the deficiency committed by OP. Hence the following order.

ORDER

1. The complaint is party allowed.
2. The OP Nos. 1 to 3 shall refund the amount of Rs. 2,22,216/- to the complainant.
3. The OP Nos. 1 to 3 shall pay  Rs. 25,000/- for mental and physical harassment and Rs. 10,000/- for the cost of the complaint.
4. The OP shall comply the order within one month from the date of receipt of copy of order.
5. The above said order shall comply by OP Nos. 1 to 3, jointly and severely.
6. Copy of order be furnished to both the parties, free of cost.
7. The complainant shall get return both the Xerox bunches of complaint.