( Delivered on 3/1/2019)

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

1. This is a complaint filed under Section 17 of Consumer Protection Act, 1986.  
2. The case of the complainant in brief is as under.

1. The complainant is the son of Mr. Jitendra Girdharbhai Vithalani. The complainant appointed his father Mr. Jitendra G. Vithalani as his power of attorney. The opposite party (for short OP) No. 1 is a “Real Estate Company Ltd.” and it is represented by its Principal Officer. The OP No. 1 carries on its business by  its office  situated at Mumbai. The OP No. 2 is also  the same company. It carries out business activities at Nagpur. The OP No. 3  is indulged   in the activities of developing  of the properties. The complainant was desirous of purchasing suitable residential accommodation at Nagpur. Therefore as per his request his power of attorney holder namely Mr. Jitendra Girdharbhai Vithalani contacted OP No. 2 at Nagpur. The OP No. 2  represented him that the OP No. 3 has purchased a land described in para No. 3 of the complaint. Moreover, the OP No. 3 also said that the said land is being under development and necessary steps are taken for the same. It was also said  by OP No. 3 that the multi user complex under the name and style of “Empress  City”  is proposed to be constructed on the said land after development and that the Nagpur Municipal Corporation (NMC) has also granted necessary permission . The OP No. 3 also entered into an agreement to carry out the construction.
2. The complainant then visited the office of OP No. 2 and after due deliberation and negotiation with  OP No. 2, the complainant agreed to purchase one of the residential apartment No. TC-1203 under the proposed construction, for total consideration of Rs. 10,40,1843/- comprising of Rs. 98,25,000/- towards price of the said apartment, Rs. 3,03,593/- towards service tax, Rs. 98,295/- towards value added tax (VAT) and Rs. 1,75,000/- towards advance maintenance charges. The said purchase price was of inclusive of Stamp Duty, Registration Charges, Legal Expenses & Electricity and Water Connection charges. The complainant was assured of completion of the project and being put in actual physical possession  of the apartment on or before 31/12/2014. 
3. The complainant accordingly paid in installments to OP Nos. 1 and 2, total amount of Rs. 68,33,751/-. The balance amount of Rs. 29,91,949/- was to be paid as per schedule governed by the agreement and an amount of Rs. 1,75,000/- was to be paid against maintenance deposit at the time of delivery of possession. The OP Nos. 1 and 2 issued allotment letter to the complainant on 6/1/2014. Moreover, at the time of execution of agreement to sell, the OP Nos. 1  and 2 also collected Rs. 4,01,843/- vide cheque dated 20/03/2014 towards Service tax and Sales tax. Thus, the OP Nos. 1 and 2 received total amount  of Rs. 72,35,584/- from the complainant.
4. There was dismal progress in construction work proposed to house  the apartment of the complainant. The complainant being skeptical  of being put in possession of the apartment on or before 31/12/2014, he contacted OP Nos. 1 and 2 on several occasions. He also addressed  mails to them  and communicated his concern to them. The OP Nos. 1 and 2 finally on 25/08/2014 addressed a communication    to the complainant  and assured him that he will be  put in possession of the apartment by 31/12/2014.
5. However, the OP Nos. 1 and 2 failed either to complete construction   or put the complainant in possession of the apartment till 31/12/2014. Therefore, the complainant issued legal notice on 1/1/2015 to OP No. 1 and its copy was given to OP No. 2. The complainant had called upon them to hand over  possession of the apartment completed in all respect  within three days from the receipt of the notice by accepting balance consideration. The OP Nos. 1 and 2 received the said notice and gave  reply on 9/1/2015 and thereby they failingly tried to justify the delay.
6. There was no progress in  construction work until June 2015. There were several rounds of negotiations in between complainant and OP No. 2 for the period from January 2015 till June 2015.  Finally, it was agreed  to enlarge the time of the delivery of possession till 31/12/2016 and scale down the consideration to Rs. 72,35,584/- exclusive of the payment of Rs. 1,75,000/- covering the advance maintenance deposit Rs. 175000/- were  agreed to be paid at the time of delivery of possession of the apartment. It was also agreed by OP Nos. 1 and 2 that in case of their  in ability  to hand over the possession till 31/12/2016, they would refund the purchase price along with interest at the rate of 15 percent per annum within 15 days of the notice, as per  provisions of Maharashtra Ownership Flats, 1963,  along with upfront refund of 50 percent of Stamp Duty and Registration charges or alternatively if mutually agreed, the complainant would qualify for additional interest at the rate of 1 percent per annum on the paid amount till actual possession  of the apartment is given. It was also agreed that in case the OP Nos. 1 and 2 did not receive refund of the Stamp Duty,  from the Collector of Stamps, in such an event, the balance 50 percent on the said  account would be paid by OP Nos. 1 and 2 to the complainant. The said terms were reduced into writing between  the parties on 1/7/2015. It was duly registered . The OP Nos. 1 and 2 failed to adhere to aforesaid  the modified terms  and failed to deliver  the possession  on 31/12/2016. Therefore the complainant issued notice on 20/01/2017 to the OP Nos. 1 and 2 and called upon them to pay total Rs. 80,77,594/- that is Rs. 72,35,594/-  paid towards purchase price of the apartment, Rs. 7,62,000/- towards the Stamp Duty, Rs. 30,000/- towards Registration Charges and Rs. 50,000/- towards miscellaneous expenses incurred by the complainant, with interest at the rate of 9 percent per annum within a period of 15 days, from the receipt of the notice. The OP Nos. 1,2 and 3 received the said  notices but failed to comply with the request made in the  said notices. Thus, they adopted unfair trade practice. Hence the complainant filed the complaint seeking following reliefs.

1. The OP Nos. 1 and 2 jointly and severally shall pay to the complainant total Rs. 80,97,594/- with interest at the rate of 18 percent per annum from the date of the receipt of the payment until its realization.
2. The OP Nos. 1,2 and 3  to pay  jointly and severally to the complainant Rs. 5,00,000/- towards compensation for physical and mental harassment.
3. Cost of Rs. 50,000/- may be saddled on OP Nos. 1,2 and 3.

3. The complainant along with filed copies of documents namely payment receipts, allotment letter,  letter of negotiation, notices & agreement to sell executed by OP Nos. 1,2 and 3.
4. The OP Nos. 1,2 and 3 filed their common reply to the complaint and thereby resisted it. The OP Nos. 1,2 and 3 in their said reply made submission in brief as under.

1. The complaint has suppressed material facts  from this Commission and therefore complaint is liable to be dismissed on the said count. There is no deficiency in service on the part of the OP. The complainant has no locus standi to file the complaint. The complaint does not fall within the purview of Consumer Protection Act, 1986.The complainant has not filed power  of attorney in support of the complaint. Hence on this count also the complaint  deserves to be dismissed.
2. The averments made as regards the matter of record is not disputed by the OP. It is denied that there was no progress in the construction work. The delay in delivery of possession has been made good  by giving  the discount of almost Rs. 25,89,406/- to the complainant by reducing the total sale consideration of Rs. 72,35,584/- exclusive of maintenance  of Rs. 1,75,000/-. The contents of the agreement dated 1/7/2015 are not disputed. The complainant is not entitled to get any kind of compensation from the OP because the complainant already got the discount of delay in delivery of possession. Therefore the complaint needs to be dismissed. The Ops are ready to give   possession of the flat as it is ready for fit-outs and the complainant has to come  and suggest the other things to be done as per his choice. The discount of Rs. 25,89,406/- have been duly accepted by the complainant by executing subsequent registered agreement. However, the remainders were issued to the complainant that the apartment is ready for fit-outs and needs complainant suggestions for interior part of the apartment to be completed.
3. This Commission has no jurisdiction to entertain the complaint. Moreover, this Commission has no territorial and pecuniary jurisdiction. The complaint is not filed within limitation. Hence the OP Nos. 1,2 and 3 requested that complaint may be dismissed.

5. The complainant  filed rejoinder to the complaint after filing of the reply by the OP to the complaint. The complainant also filed photograph of the entire building along with bill issued by the photographer about the same. The learned advocate of the complainant also filed written notes of arguments . The learned advocate of the complainant filed copies of the emails and the information provided by MAHA  RERA as regards the subject matter. The learned advocate of the OPs also filed written notes of arguments. We have heard learned advocate Mr. Vora appearing for the appellant and learned advocate Mr. Jaiswal appearing for OP Nos. 1,2 and 3. We have also perused entire record and proceeding of the complaint.
6. The learned advocate of the complainant during his arguments has drawn our attention to the aforesaid documents filed in support of the complaint and submitted that it is proved that despite of making such huge payment by the complainant to the OP, the construction of the building is still incomplete. He also submitted that there is no question of giving any suggestion to the OP for any such fit-outs as there was no such agreement for providing suggestions for the same to the OP.   He also submitted that when the construction is still incomplete and when there is no question of  giving suggestions by the complainant to the OP for fit-outs , there is no substance  in the defence raised by the OP in the reply. Hence he requested that the reliefs sought for in the complaint may be granted.
7. On the other hand, the learned advocate of the OP restrained the aforesaid case of the OP as set out in their reply and submitted that the complainant is not entitled  to claim any compensation  from the OP as he already got discount for delay in possession and the OP is ready to give possession of the flat which is ready for fit-outs, but the  complainant has not come forward to give suggestion for the fit-outs. Hence he requested that complaint may be dismissed.
8. So far as the contentions raised by the OP as regards non maintainability of the complaint is concerned, we find that there is a relationship of consumer and service provider in between complainant  on one side and OP Nos. 1,2 and 3 on another side, in view of the transaction made in between  them. Moreover, we also find that this Commission has got territorial as well as pecuniary jurisdiction to entertain and decide the complaint. We also hold  that the complaint is not barred by limitation since the construction of the building apartment is  still incomplete & OP failed to complete it as per agreement.
9. We also  find that admittedly an agreement was entered into between the complainant and OP in respect of the flat No. TC-1203, possession  of which   was to be given as per agreement  to the complainant by 31/12/2014. However, though the complainant paid huge amount of Rs. 72,35,584/- out of total consideration of Rs. 10,40,1843/- to OP, the construction was not completed on or before 31/12/2014. Moreover,  subsequent to the said date, both the parties entered into another agreement under the name and title as “Modification Cum Amendment to Agreement to Sell” and admittedly as per that agreement the price of the flat was reduced to Rs. 72,35,584/-  which amount has been  already paid  by the complainant to the OP. As per said second agreement, the possession of flat was to be given after due completion of the construction till 31/12/2016.
10. It is a defence of the OP that  the construction has been completed but suggestions are not given by the complainant for fit-outs  in the flat. There is no agreement to show that it was necessary for the complainant to give suggestion for fit-outs  before taking delivery  of possession of the flat. We find that in the absence of any evidence about requirement of providing fit-outs  by the complainant, we find no substance in the said defence raised by the OP.
11. The complainant had tried his level best for taking possession of the flat but the OP did not complete the construction as per agreement within time. The photograph  of the building produced on record by the complainant  also shows that  most of the  construction is incomplete. The OP has not produced any document to rebut evidence adduced by complainant. The OP failed to prove that the construction has been fully completed and  that the flat is ready for giving its possession to the complainant. Therefore we hold that the OPs have rendered deficient  service to the complainant by not completing the construction even after the time was extended till 31/12/2016 by second agreement  as above. Moreover,  the OP has also adopted unfair trade practice  by accepting  huge amount of Rs. 72,35,584/- by misleading the complainant  that the construction will be completed as per agreement.
12.  We thus find that the complainant has rightly claimed refund of Rs. 72,35,584/- under the above facts and circumstances. Moreover, the complainant has also rightly claimed Rs. 7,62,000/- towards stamp duty., Rs. 30,000/- towards registration charges and Rs. 50,000/- towards miscellaneous expenses incurred by him. Thus,  the total  amount claimed by the complainant  is Rs. 80,77,594/-. The OP Nos. 1 and 2  are liable to refund  that amount to the complainant with interest at the rate of 18 percent per annum from the respective date of payment till realization. Moreover, the OP Nos. 1, 2 and 3 are also liable to pay compensation of Rs. 5,00,000/- for physical and mental  harassment and Rs. 20,000/- towards litigation cost.
13. In the result, of the aforesaid discussion, we do not agree with the submission of the leaned advocate of the OP and proceed to pass the following order.

ORDER

1. The complaint is partly allowed as under.
2. The OP Nos. 1 and 2 are directed to pay jointly and severally Rs. 80,97,594/- with interest at the rate of 18 percent per annum from the date of respective payment made by the complainant to them, till realization of the said amount by the complainant.
3. The OP Nos. 1,2 and 3  jointly and severally shall pay to the complainant compensation of Rs. 5,00,000/- for physical and mental harassment and litigation cost of Rs. 20,000/-
4. Copy of the order be furnished to both parties, free of cost.