Per Shri B.A.Shaikh, Hon’ble Presiding Member.

  1.      This is a complaint filed under Section 17 of the Consumer Protection Act, 1986.

2.      The case of the complainant in brief is as under.

a)       The opposite party (for short O.P.) No.1 is a M/s.Jham builder and Developers Pvt.Ltd. and opposite party No.2 Shri Hemant Jham is its Managing Director. The complainant wanted to purchase house property at Nagpur and he came in contact with the opposite party Nos.1 and 2, for purchasing of house property from them. They agreed to sale independent banglow No.89 described in detail in the complaint, for a total consideration of Rs.22,00,000/-. They had assured complainant that the scheme proposed by them is duly sanctioned from competent authority and they have necessary permission from Nagpur Improvement Trust (NIT) and Nagpur Municipal Corporation (NMC) and having valid title to the property. They had further assured that they are competent to develop the land, transfer banglow and execute the registered sale deed for the same and that they would hand over the physical possession of the banglow, within 24 to 30 months from the date of agreement.

b)        Accordingly an agreement to sell dated 23/10/2010 was duly execute by the complainant and the opposite party Nos.1 and 2. The complainant also paid Rs.25,000/- on 21/09/2010 vide cheque dated 21/09/2010. The complainant also paid Rs.2,00,000/- vide cheque dated 23/10/2010. The complainant further paid Rs.2,15,000/- vide another cheque dated 23/10/2010.

c)      The opposite party agreed to provide the banglow to the complainant with specification of which details are given in the complaint. However, though the opposite party assured to provide the bangolow within 24 to 30 months, they failed to provide the same. The complainant found that there was very less progress of the construction. The complainant was ready and willing to get executed the sale deed of the banglow and take its possession by paying balance consideration as per agreement. He had requested the opposite party personally from time to time, but despite of making said requests by the complainant, the construction of the said banglow is not yet completed.

d)     Thereafter the opposite party vide letter dated 14/08/2012 admitted the delayed construction and submitted that for some technical reasons the project got delayed. The opposite party in that letter had under taken that it will complete construction within 20 to 21 months. Therefore the complainant waited for 20 months. But the construction was not completed. The opposite party had still assured the complainant from time to time for completion of the work.

e)        Lastly the complainant issued legal notice dated 30/09/2014 to the opposite party calling upon them to handover possession of the banglow and to execute the sale deed of the same by accepting the balance consideration. They received the notice, but replied the same and avoided to perform their part of the contract. Thus heavy loss is caused to the complainant.

f)       Hence this complaint is filed for the following reliefs.

1. To direct the opposite party Nos.1 and 2 to give possession of the banglow as per agreement to the complainant  and to execute the sale deed for the same by accepting balance consideration from the complainant at the time of registration of the sale deed.
2. Alternatively to refund Rs.4,40,000/- alongwith interest @ 24% P.A.
3. The O.P. to pay Rs.5,000/- monthly to the complainant from November 2012 till the date of delivery of possession towards the rent as the complainant has to bear the rent for alternative accommodation for him and for his family members.
4. The O.P. to pay compensation of Rs.5,00,000/- and cost of Rs.50,000/-.

3.         The notice of this complaint was issued by this Commission to the O.P.Nos.1 and 2 by Registered Post A.D. Both the notices issued to O.P.Nos.1 and 2 were returned with postal endorsement as “Refused”. Thus considering that the opposite party Nos.1 and 2 refused to accept notice issued to them, this Commission proceeding ex-parte against both of them as per order passed on 08/10/2015.

4.      The complainant filed his own affidavit by way of evidence today in support of the complaint, through his advocate. The complainant also filed copies of the following documents in support of the complaint.

        Agreement to sell dated 23/10/2010, three receipts of payments dated 21/09/2010, 23/10/2010 and 23/10/2010, letter dated 18/04/2012, notice dated 16/08/2014, postal receipt, acknowledgment and reply dated 30/09/2014 given by the O.P. to the notice of the complaint.

5.      We have heard advocate Shri M.N.Mishra appearing for the complainant and perused the record and proceedings of the complaint.

6.      The learned advocate of the complainant submitted that the O.P. not only cheated the complainant but they also cheated several others such consumers who entered into an agreement to sell with them and therefore several complaints have been filed against them before District Forum and the State Commission. He further submitted that the O.P. deliberately refused to accept the notice of this Commission to avoid the responsibility. He therefore requested that as the complaint, affidavit and documents  filed by complainant went unchallenged, all reliefs as sought for in the complaint may be granted.

7.     The agreement to sell and the receipts of payments specified above filed on record by the complainant and referred to above fully support the aforesaid case of the complaint. Thus the O.P.Nos.1 and 2 received part of consideration of Rs.4,40,000/- from the complainant and agreed to make construction of the independent banglow described in the complaint and to handover its  possession within 24 months from the date of agreement i.e. from 23/10/2010. But they have not made full construction of the said banglow as per the said agreement till this year and thus he not only rendered deficient service to the complainant but also adopted unfair trade practice.

8.      Moreover it is also seen from the reply given by the O.Ps. to the notice of the complaint that they are unable to execute the sale deed infavour of the complainant due to some technical difficulties and due to delay in issuance of “No Objection Certificate”. on the part of N.I.T.

9.     In our view, the O.P.Nos.1 and 2 ought not to have entered into an agreement to sell with the complainant without prior obtaining “No Objection Certificate” from the N.I.T. or necessary permission from competent authority. Thus entering into an agreement to sell with the complainant with oral assurance of having such permission, without actually obtaining necessary permission, itself amounts to commission of fraud by the O.P. upon complainant.

10.    Thus we are of the considered view that from the facts and circumstances discussed above, the complainant is entitled to possession of the banglow as per agreement alongwith registered sale deed upon payment of balance consideration or alternatively compensation of Rs.5,00,000/- with litigation cost of Rs.25,000/- and also refund of Rs.4,40,000/- with interest @ 18% P.A. Accordingly we proceed to pass the following order.

                             //  ORDER //

1. The complaint is partly allowed as under.
2. The O.P.Nos.1 and 2 shall handover the possession of the banglow described in detailed in the complaint as per agreement and to execute the registered sale deed of the same by accepting balance consideration from the complainant, at the time of sale deed, within one month from today. The complainant shall bear the expenses for execution and registration of the sale deed.
3. If the O.P.Nos.1 and 2 are unable to handover the possession of the said banglow as per agreement with registered sale deed to the complainant, within one month from today, then they shall refund Rs.4,40,000/- with interest @ 18% P.A. to the complainant, from the date of the complaint i.e. from 19/11/2014 till its realization by him.
4. Moreover the O.P.Nos.1 and 2 jointly and severally shall also pay compensation of Rs.5,00,000/- for loss sustained by the complainant and for physical and mental harassment.
5. The O.P.Nos.1 and 2 shall also pay litigation cost of Rs.25,000/- to the complainant.
6. Copy of the order be furnished to both parties free of cost.