(Delivered on 06/11/2024)

PER MS. S.D. WANDHARE , HON’BLE MEMBER

1.         This is an appeal preferred by the original complainant Ankush Namdeoji Naukarkar, being aggrieved by the order dated 08.07.2019 of the Additional District Consumer Dispute Redressal Forum, Nagpur, (in short it is referred to as “the learned Additional District Forum) in Consumer Complaint No. CC/18/61 (Ankush Namdeoji Naukarkar vs. New Sant Baba Tajuddin Housing Agency), vide Section 15 of the Consumer Protection Act 1986.

2.         The facts emerge from the present appeal is that the appellant filed a complaint before the Additional District Consumer Dispute Redressal Forum, Nagpur (Complaint No. CC/18/61) concerning the purchase of Plot No. BN/24 and 25 in the respondent’s layout in Mauja Parsoda, P.H. No. 38, Survey No. 89, Tahshil Ramtek, District Nagpur. The appellant intended to acquire the plot as a residence and entered into an agreement on 06.09.2011, committing to a total payment of ₹ 3,04,999/-. He paid ₹40,000/- in installments in  between 06/09/2011  and  31/08/2012. However, he later discovered that the plot lacked necessary permissions, including non-agricultural status and town planning approvals. Consequently, he requested the respondent either to provide the relevant permissions or refund his payments with interest. Despite these requests, the respondent neither completed the sale deed nor refunded the appellant’s money. After lodging a complaint with the Police, Ramtek on 01.02.2018 without result, the appellant escalated the matter to the lower consumer forum. The forum’s order required the appellant to pay the remaining ₹2,66,999/-, after which the respondent was to complete the sale deed following the legal requirements. Alternatively, if the sale deed could not be executed, the forum directed the respondent to refund the ₹40,000 with 18% interest from 31/08/2012. The appellant, dissatisfied with this decision, argues that the forum overlooked critical facts. Specifically, he claims that the respondent misled the forum by not providing the current status of the layout permissions, resulting in an erroneous directive that would allow the respondent to demand additional payments without fulfilling the required permissions. In this appeal, the appellant seeks the State Commission’s intervention to overturn the lower forum’s decision. He requests a direct order for the refund of ₹40,000 along with 18% interest from 31/08/2012, compensation of ₹25,000 for mental harassment, and costs of ₹15,000, arguing that the forum’s order has led to a miscarriage of justice.

3.         Respondents/original O.P. have resisted the claim before the learned Additional District Forum and denied the contention on the ground that the plot in question is owned solely by them, and the complainant had entered into an agreement on 06.09.2011 to purchase the plot for  ₹3,04,999/-. As per the agreement, the complainant was required to pay monthly installments of  ₹7,309/- for 42 months, with additional charges for development costs and registration fees. However, the complainant failed to comply with these terms, making irregular payments totaling only ₹40,000/- up to 31/08/2012. It is misleading to claim that the complainant provided all required government documents and requested the sale deed without completing the full payment. The respondent disputes the complainant’s allegation that ₹2,66,999/- was available for payment. Moreover, the complaint has been filed beyond the stipulated time, making it time-barred and liable to dismissal under the relevant legal provisions. The respondent further contends that the complainant’s irregular payments have caused financial losses, as the respondent’s business depends on timely payments to proceed with other transactions. Despite this, the respondent remains willing to execute the sale deed if the complainant completes the remaining payment of  ₹2,66,999/- along with interest as per the agreement, showing their continued readiness to fulfill contractual obligations. The respondent asserts that the claims for compensation made in the complaint lack merit under the Consumer Protection Act, as there has been no deficiency in service. The complaint appears to be filed with the sole intent to seek unwarranted compensation without fulfilling payment obligations. In view of the foregoing, the respondent requests the Hon’ble Forum to dismiss the complaint in its entirety as it is baseless, out of time, and does not satisfy the necessary legal requirements for relief under the Consumer Protection Act. Respondent further contended that there was no deficiency in service and unfair trade practice on his part as alleged by the appellant and therefore, respondent is not liable for compensation and cost. Thus, respondent prayed for to dismiss the complaint with cost.

4.         After given consideration to the evidence of the parties and their documents filed in support thereof, learned Additional District Forum by the order dated 08.07.2019 in Consumer Complaint No. CC/18/61 and directed respondent /original O.P. to execute sale deed in respect to the subject plot  after receipt of remaining amount from  the complainant /appellant, in default to refund the deposited amount of ₹40,000/- with interest at the rate of 18% p.a. to the complainant /appellant  and also to pay an amount of ₹10,000/- towards loss and injury caused to appellant /original complainant and ₹5,000/- as a cost of proceeding. Being aggrieved by said order of the learned Additional District Forum, the present appeal preferred by the appellant vide Section 15 of the Consumer Protection Act 1986.

5.         The learned Advocate of appellant has filed on record written notes of arguments on 22.07.20221. However, the learned Advocate of respondent has failed to file their written notes of arguments instead time and again chance given and therefore, by order dated 11.12.2023, the matter be adjourned for final arguments of the parties.

6.         We have heard the arguments of learned Advocate Shri.Kshirsagar of appellants. But the respondent and his learned Advocate are failed to remain present for advancing his arguments. So, the matter is proceeded without oral arguments of the respondent being failed to mark his  presence by order dated 21.10.2024. So, we have considered the written notes of arguments filed by the learned Advocate of the appellant. We have also perused the record and proceeding of the present appeal and also carefully gone through the material available on record.

7.         On the contention of the parties, following points arise for our determination and we have recorded our findings against each of them as follows;

REASONS

AS TO POINT NO.1 AND 2:

8.         The learned Advocate for the appellant argued that the appellant filed a complaint before the Additional District Forum, Nagpur, regarding the purchase of Plot No.BN/24&25 in the respondent’s layout in Mouza  Parsoda, P.H.No. 38, Survey No. 89, Tahsil Ramtek, District Nagpur. The appellant entered into an agreement on 06.09.2011 with the intent to acquire the plot for residential purposes committing to a total payment of ₹3,04,999/- of which he paid ₹40,000/- in installments between 06/09/2011 to 31/08/2012. However, the appellant later discovered that the plot lacked necessary approvals including non-agricultural and town planning permissions. Despite repeated requests for either the completion of the sale deed with requisite permissions or a refund of his payments with interest, the respondent failed to act. The learned Advocate for the appellant also argued that after the police complaint filed on 01.02.2018 yielded no results, the appellant approached the consumer forum for relief. He also argued that the learned forum’s decision, which directed the appellant to pay the remaining ₹2,66,999/- for the sale deed or, alternatively, allowed a refund of ₹40,000/- with 18% interest if the sale deed could not be executed, was unsatisfactory to the appellant. He further argued that the learned forum overlooked the lack of permissions resulting in a directive that enables the respondent to demand additional payments without fulfilling legal requirements. He further argued that the appellant seeks the intervention of this Commission to overturn the learned Additional District Forum’s order requesting a refund of ₹40,000/- with 18% interest from 31/08/2012 with ₹25,000 as compensation for mental harassment and ₹15,000 as costs claiming that the learned forum’s decision has resulted in a miscarriage of justice. On the other side, the learned Advocate for the respondent failed to counter the arguments.

9.         Upon hearing the learned Advocates of the appellant and considering the submission advanced in arguments along-with the material, it would be very appropriate to carefully gone through the material available on record.

10.       It has seen from the record that the appellant and respondent entered into an agreement on 06.09.2011 for the purchase of Plot No.BN/24&25. The agreement specifies the total price of ₹3,04,999/- and outlines payment obligations including monthly installments. The existence of an agreement indicates the parties' intention to create a legal obligation. The terms of agreement dated 06.09.2011 clearly details the total cost, payment structure and duration which implies mutual consent. The appellant appeared to be paid only ₹40,000/- by 31/08/2012.

11.       In this case, the appellant made partial payments and later filed the complaint for performance of agreement being consumer of respondent with alternative prayer of refund of money. The appellant's cause of action has arisen upon the failure of the respondent to provide the necessary permissions or execute the sale deed, and thus, it is the continuous in nature supports the appellant's claim. It is responsible of the respondent to ensure that the plot has the necessary legal approvals non-agricultural status and town planning permissions at the time of sale. The requirement for a property to have proper permissions before sale is rooted in the Maharashtra Land Revenue Code and the Maharashtra Regional Town Planning Act. The respondent's failure to provide these documents constitutes a deficiency in service under the Consumer Protection Act, 1986 as it undermines the buyer's ability to enjoy the property fully. The appellant's entitlement to a refund particularly in a case that the respondent is not fulfill the agreement's terms that a buyer is not suffer losses due to the seller's inability to meet legal obligations. It has seen from the material on record that the appellant and respondent entered into an agreement on 10.09.2011 for the purchase of the plot wherein the total consideration was ₹3,04,999/- and the appellant made payments amounting to ₹40,000/-.The documents presented by the appellant demonstrate the payment history along with the lack of necessary permissions for the plot which are crucial for the sale. As such, the dispute qualifies as a consumer dispute as per the definition provided under the Consumer Protection Act, 1986 given that it involves the sale of a plot for residential purposes. The respondent’s characterization of the transaction as a commercial one is not hold as the appellant purchased the plot for personal residential purposes.

12.       It has clearly seen from the material on record that the appellant has paid an amount of ₹40,000/-out of consideration amount for the subject plot despite respondents had not obtained necessary sanctions for further action. This transaction is come within the purview of service in terms of Section 2(1)(o) of the CP Act 1986 and respondent held accountable for deficiency in service. It is, therefore, deficiency in service in terms of Section 2(1)(g) of the CP Act 1986 on part of the respondent which they required to be provided but they failed with no acceptable reason for. The non-performance of the part of contract of the respondent after receipt of part amount of transaction are nothing but their unfair trade practice in terms of Section 2(1)(r) of the CP Act 1986.

13.       In view of the matter, we have hold that the learned Additional District Forum has dealt with all the grounds raised before by the appellant/original complainant. The learned Additional District Forum also dealt with issue of unfair trade practice of respondents towards the appellant by non-securing necessary sanctions in respect to subject plot instead receipt of part amount against agreed consideration amount and has also given findings taking into consideration the documents filed on record by the parties. The learned Additional District Forum has elaborately dealt with all these aspects and has also given findings and further directed respondent to execute sale deed in respect to the subject plot after receipt of remaining amount from the appellant, in default to refund the deposited amount of ₹40,000/- with interest at the rate of 18% p.a and also to pay an amount of ₹10,000/- towards loss and injury caused to appellant  and ₹5,000/- as a cost of proceeding.

14.       On assessing the material on record with perusal of impugned order of the learned Additional District Forum, it has seen that while a remedy is proposed by allowing the appellant a refund contingent on the non-execution of the sale deed, the impugned order does not sufficiently address the critical issue of the absence of necessary permissions for the subject plot. The directive to pay ₹2,66,999/- lacks substantiation regarding the validity of this claim given the plot's status. This oversight places an undue burden on the appellant who seeks redressal based on the lack of required legal approvals. The appellant is therefore entitled to a refund of ₹40,000/- since a buyer is entitled to such a remedy along with interest when the seller fails to fulfill contractual obligations in a timely manner. Therefore, we find it necessary to modify the order to ensure that the appellant receives a refund of ₹40,000/- along with interest. In light of these considerations, we support the arguments put forth by the learned Advocate for the appellant and will proceed to issue the following order.

ORDER

1. The appeal is hereby partly allowed.
2. The impugned order passed on 08.07.2019 by the learned Additional District Consumer Disputes Redressal Forum, Nagpur in Consumer Complaint No.CC/18/61 (Ankush Namdeoji Naukarkar vs. New Sant Baba Tajuddin Housing Agency)) is modified with direction to the respondent/original O.P. to refund an amount of ₹40,000/- with interest at the rate of 18% p.a. since 31/08/2012 till payment paid or deposited.
3. Rest of the order passed on 08.07.2019 by the learned Additional District Consumer Disputes Redressal Forum, Nagpur is confirmed.
4.  Both the parties to bear their own cost, in the peculiar facts of the case.
5. Copy of the order be furnished to the parties free of cost.