ORDER

(Passed on  17/07/2018)

PER SHRI.ATUL D.ALSI, PRESIDENT.

The complainant has filed this complaint U/s 12 of the Consumer Protection Act,1986 for non  development of plot and execution of sale deed as per agreement to sale and praying for refund of earnest money of Rs.57,500/- alongwith 18% interest and further claiming compensation of Rs.1 lac towards mental torture and Rs.3 lac financial loss and further Rs.10,000/- towards cost of proceeding.

2.       The subject matter of cases bearing Nos.127/17, 128/17, 129/17, 130/17, 131/17, 132/17, 133/17, 134/17, 135/17, 136/17, 137/17, 138/17, 139/17,  140/17, 141/17 and 157/17 and also the Opposite parties involved therein being the same, all these petitions are being disposed of by this common judgment by taking facts and circumstances in CC No.127/17 for the case at hand as per following facts and circumstances of the case.

3. The facts in short giving rise to this petition are that the complainant Seema Sanjay Belgaonkar, who is resident of Bhadravati, Distt. Chandrapur is a purchaser of plot. The OP No.1 is a registered society having head office at Nagpur and OP No.2 is its branch office at Chandrapur.  As per offer from OP No.1, has agreed to purchase plot Nos.24 admeasuring 200  sq.mt. from OP from field survey No.119 having 4.46 Acre land at Mouza Mohgaon,  Tah. Samudrapur, Dist.Wardha.  The land is situated near forest Tadoba in Chandrapur District and hence it is having good potential and can be used for residential purpose. Therefore the complainant has entered into agreement to purchase the plot bearing No.24 and paid Rs.57,500/- towards earnest amount on 16/2/2014 and 26/7/2014 against the total consideration of Rs.1,70,000/-.  The Opposite Party promised to execute sale deed of the plot after 30 months from the execution of agreement.

4.      The OP has assured that the plot allotted to the complainant can be used for residential purpose. The OPs have also promised to construct resort, conference hall, wellness centre, Canteen, Swimming Pool on the unutilized land owned by OP No.1 and the same facility and their utilization will be given to the complainant for 7 days in a year at free of cost.

5.       The OPs have failed to to develop the land as per agreement and failed to execute the sale deed. Therefore the complainant issued notice to the OPs through his Advocate Mr.Pachpor on 29/3/2016 to refund the earnest amount but the OPs did not comply the notice. Hence, the complainant has filed this complaint.

6.       The complaint is admitted and notices were served on the OPs. The OP No.1 and 2 filed their reply and thereby denied allegations against them and submitted that the complainant is not Consumer because the complainant has nowhere stated that the complainant has purchased the plot for residential purpose. The complainant has stated that the farm land will be used for guest houses and tourism, and therefore, the purpose is commercial purpose. The second preliminary objection is raised that the Forum has no territorial jurisdiction because the farm is situated at Wardha District and agreement to sale was executed and the amount was paid in cash at Nagpur. No transaction or activity is carried out through OP No.2 at Chandrapur. Merely one of the branch office of OPs is at Chandrapur does not confer territorial jurisdiction to this Forum. The OPs also raised preliminary objection that the complaint is barred by limitation and stated that only issuing notice does not prolong the period of limitation. Therefore the petition deserves to be dismissed with cost.

7.      The OPs have admitted in their reply the execution of agreement to sale on 1/3/2014 between the OP No.1 and complainant and receipt of Rs.57,500/- as earnest money out of the total consideration of the plot of Rs.1,70,000/-. The OPs also submitted that whenever the OPs called the complainant to get the sale deed executed, the complainant made some excuses and never turned up for sale deed. Hence the complaint deserves to be dismissed with cost.

8.       Counsel for the complainant argued that the OP did not fulfill the promise as per agreement and failed to develop the land into non agriculture and to execute sale deed after the receipt of earnest amount of Rs.57,500/- on 16/2/2014 and 26/7/2014 till the receipt of notice through Adv.Abhay Pachpor on 29/3/2016 and till filing of present petition. Therefore the service rendered by OPs amounts to negligence of service. Therefore the petition may be allowed as prayed. 

9.         Counsel for the OPs argued that the Forum has no territorial jurisdiction, the complaint is not within limitation,  the purpose for purchasing the land is Commercial in nature and hence the Forum has no jurisdiction to entertain the complaint and it deserves to be dismissed with cost.

10. We have gone through the complaint, written versions filed by OP No.1 and OP Nos.2 & 3, 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 ?                                      Yes

2.  Whether  the Forum has jurisdiction to entertain the complaint ?     No

3.  What order ?                                                                  As per final order..

As to issue No.1

11.      The O.P.No.1 executed an agreement to sale plot No.24 admeasuring 200  sq.mt. from from field survey No.119 at Mouza Mohgaon,  Tah. Samudrapur, Dist.Wardha in favour of complainant and received Rs.57,500/- towards earnest amount on 16/2/2014 and 26/7/2014 from the complainant against the total agreed consideration of Rs.1,70,000/-.  When there is an agreement between the parties for the execution of sale deed with completion of all formalities including development of plots and all ancillary  facilities, as promised by OPs the complainant is a consumer within the meaning of Section 2(1) D and the services as promised are the services within the meaning of section 2(1)(d)(ii) of CP act. and hence the issue is decided accordingly.

As to issue No.2

12.        The complainant has filed agreement of sale dated 1/3/2014. As per agreement of sale, it was executed between the complainant and OP No.1 at Nagpur. The subjectmatter of property for which the agreement of sale is executed is situated at village Mohgaon, Taluka Samudrapur, Distt.Wardha. The complainant has paid earnest amount of Rs.57,500/- by cash to the OP No.1 at Nagpur as per copies of receipts filed on record as per list of documents dated 31/7/2017. No activity has been carried through the branch of OP No.1 at Chandrapur nor the OP No.2 is the party to the agreement of sale. Therefore, no cause of action has been carried within the jurisdiction of this Forum. Therefore the Forum has no territorial jurisdiction to entertain the petition. Therefore the petition is dismissed with liberty to file afresh before the appropriate Forum. The period of limitation in filing the petition, from 9/7/2018 till the order is excluded for the filing of fresh petition. Hence the order..

Final order

1. The Complaint is dismissed without cost.

2. The main order copy be kept with case No.127/17 and Xerox copies thereof be kept with cases Nos. 128/17, 129/17, 130/17, 131/17, 132/17, 133/17, 134/17, 135/17, 136/17, 137/17, 138/17, 139/17,  140/17, 141/17 and 157/17

3. 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