As per Hon’ble President Mr. Atul Alshi.
The complainant wants to secure their future, he invested the amount the Plot No. 120. The O.P.No. 1 is a partnership firm and O.P.No. 2 to 4 are the partners. They running their business of purchasing agriculture land and converted into non-agriculture land and demarcated, erect plots and to sell customers.The O.P.s launched the scheme of farm-house lay out plan at Mouza-Shekapur, P.H.No.61, Kh.No.33, 34/1/2/3/4 & 47, Tah, Katol, Distt. Nagpur. Complainant purchased the Plot No. 120 having total admeasuring 4133.03 Sq.Ft. for total consideration Rs.61,995/- by agreement dtd.15/11/2011 andpaid total consideration and fulfilled his part of contract and requested to O.P. for registration of sale deed. But O.P. failed to register the sale deed till 2017 and not given any proper answer for non execution of sale deed. Thereafter, it come to knowledge that there was a land dispute between O.P. and land owner which is pending in Civil Court and O.P. assured that final judgement will come in April-2018 in the favour of O.P. Then O.P. will execute the sale deed. The complainant waited till April-2018 but the O.P. failed to execute the sale deed for want of necessary sanction and conversion of land into non-agriculture. The O.P.s has assured to complainant that they will return entire amount to complainant and issued Indemnity Bond/Hami Patra dtd.10/05/2018.As per Indemnity Bond/Hami Patra O.P. will return whole amount with interest in the saving bank account of complainant on or before 30/11/2018. O.P. failed to return the amount of complainant with interest. Complainant issued a legal notice on O.P.s. O.P. failed to comply. Hence, complainant filed this complaint and prayed for to get back his amount with interest alongwith compensation, damages and mental agony.
2. The O.P.No. 1 to 3 filed reply and denied the allegations against it and submitted that agreed to execution of agreement to sale, for sale deed of the land after conversion in favour of complainant. The O.P. told to the complainant prior booking of plots that the disputed land is Adiwasi land and time will require for conversion through government process. O.P. further submitted that complainant verified all relevant documents at the time of agreement to sale. The O.P.s have never issued any written assurance or Indemnity Bond for the refund of earnest amount towards agreement of sale. The complainant is misusing the Hamipatra dtd.10/05/2018 which was not issued by O.P.s. The issue of conversion of land could not be done due to technical reason. The non execution of sale deed is not intentional act on the part of O.P. Hence, there is no unfair practice. The O.P. got knowledge about to changes in government policies and therefore O.P. give fair proposal to complainant for execution of sale deed in another Khasara in the same area at the same rate. But complainant refused to get suitable plots in same consideration. The O.P.s shown inability to refund the money in possible time as the invested a huge amount buying agriculture land in converting process for sale in Adiwasi land before Commissioner Office which was firstly pending before Tahsildar,Katol. Due to pandemic Corona all payments towards plot booking are stopped and all progress is stopped. The agreement executed for sale dtd.15/11/2011 is barred by limitation to file the present complaint. Therefore, the complaint is liable to dismissed with cost.
REASONING
On perusal of the copy of agreement to sale dtd.15/11/2011 and receipt of the amount filed on Page no. 12 to 33, the complainant purchased the Plot No. 120 in the layout of O.P. and O.P. accepted the amount from complainant and on account of it O.P. gives the service of Kachcha road, water and electric supply, non-agriculture conversion of land and Town Planning sanction and essential documents. Hence, O.P.No. 1 to 4 are the Developer and complainant is consumer.
4. As per Indemnity Bond/Hami Patra O.P.No. 1 to 4 did not return whole amount with interest equivalent to pay by bank on saving bank account to complainant on or before 30/11/2018, hence the cause of complaint still continuous. Limitation and Pecuniary jurisdiction are not disputed points.
5. The O.P. No. 2 to 4 are the partners of the O.P.No.1 firm and working the business of development of land and also work as builder. The O.P. launched a scheme of farm-house layout plant at Mouza-Shekapur, P.H.No.61, Kh.No.33, Tah, Katol, Distt. Nagpur. According to the agreement, the complainant purchased plot No. 120 having total area 4133.03 Sq.Ft. against consideration of Rs.61,995/- and paid Rs.15,500/- as earnest amount and remaining amount was to be paid in installment. The complainant has requested to O.P. to execute sale deed but O.P. failed to execute sale deed and not given proper reason and suppressed fact of litigation between land owner and O.P. After several request at last O.P. have assured to complainant that they will return entire amount to complainant by executing Indemnity Bond/Hami Patra dtd.10/05/2018 and assured to return the entire amount on or before 30/11/2018 as the O.P. failed to execute sale deed because non conversion of Adiwasi land into general category of land. Non-payment of the promised amount as per Indemnity Bond/Hami Patra O.P. amounts to deficiency in service.
6. It can be seen that OPs had collected full payable amount of Rs 61,995/- way back in year 2011. OPs had deceived Complainant by incorrectly assuring about development of land. In facts, OPs were under obligation to convert said land into Non agriculture & develop the said layout by taking necessary permissions for the concerned authorities. Hon NCDRC had categorically observed in the following judgment that before getting necessary permissions, builder collecting money from purchasers by giving them misleading/incorrect assurances amounts to unfair trade practice.
“Brig. (Retd.) Kamal Sood vs M/S.Dlf Universal Ltd. on 20 April, 2007, First Appeal 557 of 2003, Order Dated 20.4.2007.”
“In our view, it is unfair trade practice on the part of the builder to collect money from the prospective buyers without obtaining the required permissions such as zoning plan, layout plan and schematic building plan. It is the duty of the builder to obtain the requisite permissions or sanctions such as sanction for construction, etc., in the first instance, and, thereafter, recover the consideration money from the purchaser of the flat/buildings.”
It is clear that OPs are utilizing money collected from Complainant for their business since last 11 years. If OPs were unable to take necessary permissions for development of layout then OPs ought to have refunded amount to complainant. OPs had committed unfair trade practice & deficiency in services in the present matter.
7. It can be seen that Complainant had paid full amount to OPs in year 2014. OPs had failed to honor their own hami patra dtd 10.05.2018 about refunding amount to Complainant. Hon’ble Supreme Court had observed that “Ghaziabad Development Authority vs Balbir Singh, Appeal (civil) 7173 of 2002, Judgment Dated 17.03.2004.” where OPs are unable to allot plot to Purchaser due to cancellation of scheme or for any reason then the said disputed land remains with OP, therefore, OP is likely to be benefitted in future by selling it at higher rates. In such cases, directing OPs to refund amount with 18% P.A. interest would be justified.
Honble State Commission, Circuit Bench Nagpur had also recently awarded interest of 18% in the similar matter.“Smita D/O Suresh Deshmukh Vs Infratech Real Estate Private Limited & ors, Consumer Complaint CC/17/156, Judgment Dated 30.06.2022”.”
8. It can be seen that the disputed land is in possession of the OPs. OP had deceived Complainant by pocketing full amount since last 11 years. It is settled position that whenever any Consumer has suffered financial loss due to OP then that individual needs to be substantially compensated so as to put him in the position had he not suffered the loss. It is important to note that Complainant had not deposited said amount with OPs as fixed deposit so as to compare it prevailing bank rates while considering refund of amount.
9. It can be seen from ready reckoner rates declared by the State Government that the prices of land have been substantially increased during 2011 to 2022 around Nagpur/Katol area where the disputed land is situated. OPs had utilized amount for their business & deceived Complainant, therefore OPs are liable to compensate Complainant. Commission is of the opinion that Complainant is certainly entitled for getting refund amount as per prevailing ready reckoner rates for the disputed plot or refund of amount with penal interest from OPs.
In view of this discussion we pass the following order.
ORDER
- The complaint is partly allowed.
- The O.P. No. 1 to 4 is directed to pay a sum of Rs.61,995/- along with 18% from the last date of payment 15/11/2014 till its realization to the complainant.
Or
The O.P. No. 1 to 4 is directed to pay amount as per prevailing ready reckoner rates on the date of actual payment for Non agriculture land, declared by State Government, Maharashtra for the said zone or nearby zone, for the said disputed Plot Area 4133.03Sq.Ft.) situated at Mouza-Shekapur, P.H.No.61, Kh.No.33, 34/1/2/3/4 & 47, Tah, Katol, Distt. Nagpur.
OPs should pay higher value of the above options.
- The O.P.No. 1 to 4 shall also pay compensation of Rs. 30,000/- and litigation cost Rs.25,000/- to the complainant.
- The order shall be complied by O.P.No. 1 to 4 jointly or severally within 30 days from receipt of copy of the order.
- Copy of the judgment/order shall be given to both the parties, free of cost.
