ORDER

(Passed on  09/07/2019)

PER SHRI.ATUL D.ALSI, PRESIDENT.

            The complainant Nos.1 & 2 have filed this complaint U/s 12 of the Consumer Protection Act,1986 for deficiency in service in not allotting Duplex Bungalow booked by them, within a reasonable period and thereby praying for refund of amount paid along with interest and cost.

 2.      The facts in short giving rise to this petition are that the complainant Nos.1 & 2 are husband and wife and they have booked one Duplex Bungalow bearing No.B-40with one Dhawal Construction in their scheme by name Dwarkesh Nagari at Village Chourala, T.& D.Chandrapur for the price of Rs.10,64,000/- by paying booking amount. The complainant paid earnest amount of Rs.1,55,000/- on 12/10/2013, and installment of Rs.33,000/- on 27/01/2014, i.e. total Rs.1,88,000/- to said Dhawal Construction. Thereafter, as per mutual agreement between said landlord and proprietor of Dhawal Construction on one part and OP Nos.1 & 2 on the other, the said project was handed over to OP Nos.1 & 2 and these OPs. agreed to develop and complete the scheme.  Hence the complainant time to time paid some of the remaining installments total amounting to Rs.99,000/- to OP No.1 through its partner OP No.2.  Thus the complainant paid in all Rs.2,87,000/- as part consideration for the said duplex Bungalow.  He was ready and willing to pay the balance amount of Rs.7,77,000/-.  However, despite several demands and requests, the OPs failed to complete the construction work of the scheme and failed to handover the possession and execute sale deed of the duplex Bungalow booked by him. Hence the complainant issued legal notice dated 4/5/2016 to the OP Nos.1 & 2 through his advocate Mr.Kullarwar, however the OPs failed to comply the notice. Hence the complainant has filed this complaint.

3.       The complaint is admitted and notices were served on the OPs. The OP No.1 and 2 filed their combined reply and thereby denied allegations against them and submitted that the complainant is not Consumer because the complainant had entered into agreement for purchase of Bungalow No.B-40with original owner Dhawal Construction and no agreement taken place in between the complainant and these OP Nos.1 & 2 in this regard neither they actually received any amount towards consideration of said duplex Bungalow from the complainant. Hence the OP Nos.1 & 2 are not responsible for completing the construction work of his duplex Bungalow and executing it sale deed to him.

4.      OP Nos.1 & 2 further submitted that the original owner and Dhawal Construction did not complete the formalities and it did not issue No Objection Certificate and other relevant documents essential for construction of the scheme to OP Nos.1 & 2.  Therefore a Civil Litigation bearing No.94/2016 has been filed by OP Nos.1 & 2 against said Dhawal Builders for specific performance of contract which is still pending before the Civil Judge, Sr.Dvn. Chandrapur . As the matter is subjudiced before the Civil Court, this petition filed subsequently before the Consumer Fora for the same cause of action is not tenable. Hence the petition deserves to be dismissed with cost.

5.       Counsel for the complainant argued that the OP did not fulfill the promise as per agreement and failed to construct the duplex Bungalow and to execute sale deed evenafter a period of 3 years has elapsed and inspite of that the OPs have received a considerable amount of consideration.  They even failed to refund the amount paid inspite of receipt of notice through Adv.Abhay Kullarwar till filing of present petition. Therefore the service rendered by OPs amounts to negligence of service. Therefore the petition may be allowed as prayed. 

6.         Counsel for the OP Nos 1 & 2 argued that there is no consumable interest between the complainant and OP Nos.1 & 2. The scheme was handed over to them by Dhawal Construction however, it failed to issue No objection Certificate and other documents essential for completion of the construction. Therefore there is no deficiency in service on their part. Further, as the matter is subjudice the Forum has no jurisdiction to entertain the complaint and it deserves to be dismissed with cost.

7. We have gone through the complaint, written version filed by OP No.1 and 2, affidavit, documents and WNA filed by the parties. We have also heard the oral arguments advanced by parties.

                    Points                                                                                     Finding

1. Whether the complainant is a Consumer of OP No.1&2?                       Yes

2.  Whether  the Forum has jurisdiction to entertain the complaint ?    Yes

3. Whether there is deficiency in service on the part of OPs?                  Yes

4. What order ?                                                                   As per final order..

                             REASONING

As to issues No.1 to 4

8.      The O.P.No.1 firm through its proprietor OP No.2 has filed a Civil Suit bearing No.94/2016 for specific performance of contract against the original owner of the plot Mrs.Sunita Mundhada, defendant No.5 & M/s Dhawal Developers  in respect of Survey No.50 & 52/1 at Mouza Chourala, T.& D.Chandrapur thereby praying for direction to issue necessary No Objection Certificate and execution of sale deed in respect of construction of 310 Duplex Houses, 15 flat schemes and 10 shops and for that, defendant Nos.1 to 4, the partners of M/s Dhawal Construction i.e. the original owner of suit property will give details of 14 intended purchasers with whom they had entered into agreement and the details of amounts received from them and the amount of adjustment and the balance of consideration to be paid by them to the OP Nos.1 & 2 and also for the direction to the defendants to execute sale deed in favour of intended purchasers.

9.      These recitals from the Civil Suit filed by the OP Nos.1 &  2 itself proves that after handing over of the scheme by original owner and Dhawal Constructions to OP Nos.1 & 2, they had agreed to construct Duplex Bungalow. In such circumstances, non execution of agreement of development between the complainant and OP Nos.1& 2 is not fatal. Admittedly, the OP Nos.1 & 2 could not complete the scheme and failed to handover the duplex bungalow to the complainant in spite of receipt of considerable amount of consideration i.e. Rs.2,87,000/- by Dhawal Builders and later by OP Nos.1 & 2 as per payment receipts filed at Exh.4 Doc.A-1 to A-14 and inspite of service of legal notice dated 27/6/2016 through Adv.Kullarwar. Non completion of construction work of duplex Bungalow and denial of execution of its sale deed in favour of complainants despite substantial payment is a clearcut deficiency in service and therefore, the builder and the land owner who have received the amount are liable for refund of the amount with interest and compensation.

10.        As per judgment of Hon’ble National Commission bench comprising of Hon’ble justice R.K.Agrawal, President and Shri.Shaw, Hon’ble Member in 2019 (I) CPR 674 between Shri.Ashok Bagul Vs. Sumitkumar Mitra, has observed that “The land owner giving his land for development and in return expecting some share of the area given and there is dispute between the land lord and developer in Civil Court, the Consumer Forum has jurisdiction to entertain the dispute as per ratio laid down by Hon’ble Supreme Court.  Therefore, the complainants are the Consumer of OP NOs.1 & 2 and this Forum has jurisdiction to entertain the complainant and further that the complainants are entitled to refund of amount paid by them i.e. Rs.2,87,000/- alongwith interest @12% p.a. from the date of admission of the case i.e. 19/7/2017 till realization alongwith compensation for mental and physical agony of Rs.25,000/- and cost of Rs.10,000/-. Hence the following order is passed..

Final order

1. The Complaint is partly allowed.

2. The OP No.1 & 2 are directed to jointly and severally refund the amount of Rs.2,87,000/- to the complainant Nos.1 & 2 with interest thereon @12% p.a. from the date of admission of the case i.e. 19/7/2017 till realization. 

3. The OP No.1 & 2 are further directed to jointly and severally pay to the complainant compensation for physical and mental agony of Rs.25,000/- and cost of proceeding amounting Rs.10,000/-.

4. Copy of the order be furnished to both the parties free of cost.

(Smt.Kalpana Jangade (Kute)  (Smt.Kirti Vaidya (Gadgil)     (Shri.Atul D.Alsi)

               Member                                 Member                                    President