ORDER

(Passed on 08/05 /2019)

PER SHRI. ATUL D.ALSI, PRESIDENT.

               Complainants in all the above complaints have filed these complaints U/s 12 of the Consumer Protection Act,1986 alleging deficiency in service on the part of opposite parties in not converting the agricultural land into residential layout and not executing the sale deed of their respective plot within the specified period, and thereby claiming refund of their respective deposited amount alongwith 12% interest thereon and further claiming compensation of Rs.50,000/- towards mental torture and further Rs. 10,000 /- towards cost of proceeding in each complaint.  All the above complaints involve similar grievance and the dispute is directed against the same opposite parties.  Hence we are inclined to adjudicate all the complaints with a common order as under..

2.       The facts in short giving rise to these petitions are that all the above complainants entered into agreement with Opposite Parties No.1 through its agent OP No. 2 for purchase of residential plot in their proposed layout named Velocity Park, situated at Survey No.221, Mouza Pimpardol,  Tah. &  Distt. Nagpur, at the rate of Rs.200/- per square feet,  the details whereof  are as followes..

3.       All the complainants have paid their respective part consideration in installments by cash as well as by cheque drawn on banks at Chandrapur.  However, despite several requests the opposite parties failed to get the land in question converted into non agricultural one and to execute sale of respective plot in favour of respective complainant.  The complainants were and are ready to pay the balance consideration and to get the sale deed of their respective plots however, the OP shown their inability to get the land developed and to execute sale deed.  On the contrary, they assured to allot plots to the complainants in another layout. However, they did nothing. Hence the complainants issued legal notice to the opposite parties through their advocate Mr.B.T.Shende on 21/4/2017. However, despite of service of notice, the OP No.1 did not comply. Therefore, these separate petitions have been filed by the respective complainants claiming refund of deposited amount, compensation and cost.

4.       The complaints were admitted and notices were served to the OPs. The OP No.1 and 2 appeared before this Forum filed their reply and thereby denied allegations against them and submitted that the complainant is not Consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act,1986 as the transactions in question are commercial in nature because the complainant have nowhere stated that they have purchased the plots for residential purpose.  Hence the petitions are not tenable and are liable to be dismissed with compensatory cost.

5.      The OPs have admitted in their reply the execution of agreement to sale

of residential plots between the OP No.1 and respective complainant and receipt of part consideration thereof. 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.

6.       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 considerable partial consideration till the receipt of notice through Adv. Shende dated 21/4/2017 and till filing of present petitions. Therefore the service rendered by OPs amounts to deficiency in service and hence the petition may be allowed as prayed. 

7.         Counsel for the OPs argued that the complaints as filed by the complainants are not tenable before the Forum as the transactions involved therein are commercial in nature and as such the complainants are not Consumers within the meaning of Consumer Protection Act,1986. Hence the Forum has no jurisdiction to entertain the complaint and it deserves to be dismissed with cost.

8.        We have gone through the complaint, written versions 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 ?                                      Yes

2.  Whether  the Forum has jurisdiction to entertain the

     complaint ?                                                                                               Yes

3.  Whether the Ops.indulged into Unfair Trade Practice and

     were deficient in providing service to the complainants.                Yes

4. What order ?                                                                    As per final order..

As to issue No.1

9.      The O.P.No.1 executed agreement to sale respective plots as enumerated in the statement supra in favour of respective complainants and the complainants have paid part consideration thereof to the OPs. The receipts to that effect are filed on record by the respective complainant.  The Ops have averred in their written statements that the plots were intended to be purchased for commercial purpose and hence the transaction is not amenable to the jurisdiction of Consumer Fora. However the Ops have filed nothing to show that the complainants have purchased the plots for commercial purpose, as such mere assertion not supported by adducing evidence cannot be relied upon. When there is an agreement between the parties for the execution of sale deed with completion of all formalities including development of plots 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

10.       The complainants have filed on record the details of payments made by each of the complainants towards consideration of the plots. It specifies that some of the payments of installments were made by cheques drawn on banks at Chandrapur. Therefore, the part of cause of action has taken place at Chandrapur within the territorial jurisdiction of this Forum.    Hence the Forum has jurisdiction to entertain the complaint.

As to issue No.3

11.     The complainants  have filed respective agreement to sale. On perusal of agreement to sale, it specifies that Op have agreed to sale residential plot to each of the complainants. The details of payments made by each of the complainants towards consideration of respective plot shows that the complainants have paid a considerable amount towards consideration. As per the agreement remaining amount was to be paid at the time of execution of sale deed. However, the Ops failed to get the land converted into non agricultural residential layout and to execute the sale deed of respective plot in favour of respective complainant and there was inordinate delay of more than 3 years from the expiry of time limit for execution of sale deed. Further, the Ops have filed nothing to show that in these circumstances, they have offered to refund the part consideration paid by the complainants.  This act on the part of OP Nos.1 & 2 amounts to adopting unfair trade practice and also deficiency in service. Hence the complainants are entitled to refund of amounts deposited by them for purchase of their respective plot. They are further entitled for adequate compensation for  mental and physical harassment and cost  of proceeding. Hence the issue is answered accordingly.

As to issue No.4

12.           In view of our observations as above, we pass the following order..

Final order

  1.    The Complaint Nos. 103,105 & 114 to 117 of 2017  are partly  

            allowed.           

  2.    The OP Nos.1 & 2 are directed to jointly and severally refund the

          amounts paid by the complainants to them for purchase of their  

          respective plot as is shown in the statement supra alongwith

          interest thereon @12% p.a. from the date of admission of the  

          complaint till realization.  .

 3.    The OP Nos.1 & 2 are further directed to jointly and severally pay   

       Rs.25,000/- towards compensation for mental and physical

       harassment and Rs.10,000/- towards cost  of proceeding to each of

       the complainant.

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