ORDER
(Passed this on-10th January, 2017)
Sau.Chandrika K. Bais, Member.
01. Complaint filed this complaint U/S-12 of Consumer Protection Act-1986 against Opposite Party for non execution of sale-deed of plot in favour of her.
02. The brief facts of the complaint is as under :-
The O.P. No.-1 is a registered company and O.P.No.2 is the Managing Director of company. Opposite Party has owned land of Khasara No.-94/1, Area-9600 Sq. Meter, Class-I, P.H.No.-5-A, Mouza Surabardi, Tahsil & District Nagpur & Opposite Parties had introduced proposed lay-out . The Complainant has booked the Plot No.-9 in the said layout admeasuring area-135 Sq.Meter (1453 Sq.Ft.) for total consideration of Rs.-2,54,275/- at the rate of Rs.175/- per Sq. Ft. The Complainant paid an amount of Rs.1,13,400/- to the Opposite Parties in cash on 18/04/2009 prior to the Agreement. The Complaint and Opposite Parties made an agreement on 30/04/2009 and as per the Agreement remaining amount Rs.1,40,875/- would be given at the time registry within 06 months from the date of Agreement. The Opposite Parties also agreed that they will obtained a sanction from the N.I.T. and from the Town Planning Authority within a period of 06 months from the date of Agreement.
The Complainant further narrated that, as per the Agreement if the Opposite Parties fail to obtain necessary permission & sanction from the competent authority within 06 months then the period of execution of sale-deed automatically
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extended. In Agreement also mentioned that if the Opposite Parties fails to execute the sale-deed within 06 months period then the Complainant will be entitled to get interest i.e.12% P.A. on advance amount of Rs.-1,13,400/- from the Opposite Parties and also mentioned If the Complainant fails to execute the sale-deed then she also entitle to give interest 12% P.A. to the Opposite Parties. After execution of Agreement to sale on 30/04/2009, the Complainant frequently visited office of Opposite Parties and requested for execution of sale-deed of plot. On each and every occasion the Opposite Parties have assured the Complainant that the company will obtain necessary sanction and permission from competent authority within 06 months period. The Complainant observed that since 30/04/2009 till 01/11/2014 no such permission and sanction obtained from the competent authority by Opposite Parties even after lapse of five years period.
On 01/11/2014 for the first time the Opposite Parties had issued notice to the Complaint and informed her to pay remaining balance consideration and demarcation, road construction charges amounting to Rs.-1,55,790/- within a period of 07 days. It has been further mentioned in Para No.4 of the said notice that, they will execute register agreement and power of attorney within 15 days period in respect of the said property. The Complaint had given reply to this notice on 14/11/2014 and thereby asked the Opposite Parties to execute the sale-deed instead of executing the agreement of sale and power of attorney. She also mentioned in reply that, she will be ready to pay balancing amount of Rs.-1,40,875/- to the Opposite Parties . The said reply was duly served upon the Opposite Parties but they neither complied nor replied it. This conduct of the Opposite Parties shows that, they have declined to execute the sale-deed of plot.
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The Opposite Parties demanded more amount from the Complaint i.e.Rs.-14,915/- for demarcation charges and road expenditure. The Complaint is ready to give excess amount, if the Opposite Parties would execute of sale-deed of plot in favour of her. But Opposite Parties avoided to execute the sale deed of the plot in favour of her and this act of the Opposite Parties Opposite Parties falls unfair trade practice and also counts deficiency in service. So the Complainant filed this complaint against Opposite Parties and she prayed following demands against Opposite Parties.:-
(01) The Opposite Parties be directed to execute sale-deed of plot as per agreement in favour of the Complaint by accepting balance consideration of Rs.-1,40,875/-
(02) Opposite Parties be directed to refund the part consideration amount of Rs.1,13.400/- and also interest their on from-18/04/2009 till the realization of the amount at the rate of 12% P.A.
(03) The Opposite Parties be directed to pay Rs.-50,000/- to the Complaiant for physical and mental harassment & also pay complaint cost of Rs.-5000/-.
(04) If the Opposite Parties fails to execute sale deed of plot in favour of Complaint then Opposite Parties be directed to pay market rate of Rs.-500/- Sq.Ft. of agreed plot along with rate of interest 12% P.A. to the Complainant.
03. The O.P. No. 1 & 2 have filed reply before the Forum. In reply they admitted Agreement of plot on 30/04/2009 between Complainant and them. They also admitted that, till date they have not obtained necessary sanction and permission of the said
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proposed layout from the competent authority as per Agreement but they are trying to obtain necessary permission and sanction of layout from the competent authority. They also admitted that they issued notice to the Complainant and the Complainant replied this notice.
The Opposite Parties further narrated that, they have not demanded excess amount from the Complainant. In the Agreement of dated-30/04/2009 there is one condition of its page no.5 that the development charges and demarcation charges, road expenditure, electric, water and drainage expenditure are not included in the sale consideration amount. Opposite Parties denied that, they are prolonging the execution of sale deed of plot. Opposite Parties denied all the allegations against them by the Complainant and also denied all the demands of Complainant.
The Opposite Parties further contended that O.P.No.-1 is a public limited company registered under the Companies Act.
since the year of 2010 the economic condition of the company lower down due to the crises of board of Directors hence O.P. have filed application before the Hon’ble High-Court, Nagpur and Hon’ble High-Court directed to convene the meeting of its members and creditors under the chairmanship of Shri R.G.Janbandhu, retired Joint District Judge. It is further directed that until further order, there shall be stay to the commencement or continuation of Suit or Proceedings against the company and its directors for recovery of any amount payable by the company. This order is still in operation as no any further order has been passed till date.
The Opposite Parties further contended that the company has put up all the case papers in respect of property before the
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Hon’ble Collector, Nagur for its sanction. The Maharashtra State Govt. has recently declared and extended limit upto 25 KM. Metro Region margin and therefore for sanctioning of Map before T.P.Authority unnecessary time is being required and therefore Opposite Parties have decided to hand over the plots to the respective purchasers by executing the possession letter along with the deed of Power of Attorney by the company for the purchasers so that the notice dated-01/11/2014 has been issued to the purchasers and demanded Rs.10/-per Sq.Ft .towards demarcation of layout with development and construction of road, drainage, development charges as agreed in the Agreement. Opposite Parties are still ready to execute and register the sale-deed subject to sanction of lay-out by the Sate Government Authority and therefore refund of earnest amount with interest are not possible. Hence the instant complainant is not tenable in the eyes of law and hence requires to be dismissed.
04. Heard Ld. Counsel for the Complaint. Perused documents and rejoinder. Upon consideration of the same we record our findings and reasons as under.
FINDINGS AND REASONS
05. It is not disputed that by both parties that Agreement of plot on 30/04/2009 made between Complainant and Opposite Parties. It is also admitted fact by Opposite Parties that they have not obtained necessary sanction and permission of the said proposed layout from the competent authority till date. The total consideration of agreed plot of Rs.-2,54,275/- and the
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Complaint paid partly an amount of Rs.-1,13.400/- to the Opposite Parties on 18/04/2009. In the Agreement of plot Opposite Parties have assured the Complainant they will obtained necessary permission and sanction of the proposed lay-out from the Competent Authority within 06 months from the date of Agreement but till date Opposite Parties failed to sanction of the proposed lay-out. The Complaint made agreement with Opposite Parties in the year 2009 and since the year 2009 to till date she is waiting for execution of sale-deed of plot since long period and the rate of plot is increasing day by day in Nagur Metro City and today the Complainant is not in a position to purchase the new property in Nagpur City because of the rate of plots are highly increased. This is also real fact that the Complainant is ready to give balance consideration of plot to the Opposite Parties but Opposite Parties have not get sanction of the proposed lay-out.
06. The Opposite Parties have given only assurances to the Complainant for execution of sale deed of plot since long period and this act of O.P. falls unfair trade practice and deficiency in service. The O.P. filed Hon’ble High Court, Nagpur order in Company Application No.5/2012 order dated-04/05/2012 and contended that stay was granted by the Hon’ble High-Court to commencement of suit or proceedings against the Company and its directors. We carefully perused the Company Application, this
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Application is compromise between the company and its creditors and this is the different application which is not related to the Complaint. Hence we pass following order-
ORDER
(01) The complaint is partly allowed jointly & severally against O.P.-1 and 2.
(02) The O.P.-1 & O.P.-2 are directed to execute sale-deed of plot in favour of Complainant after receiving remaining amount Rs.-1,40,875/- (In words Rs.One Lac Forty Thousand & Eight Hundred Seventy Five only ) as per the agreement.
(03) Due to some technical problems if O.P. No.1 & 2 are not in a position to execute the sale deed of plot in favour of Complainant, then O.P.No.-1 &2 are directed to refund the amount to the Complainant of agreed Non-Agricultural plot price dated -10/01/2017 as per Govt. ready reckoner after deducting balancing amount of plot i.e. Rs.-1,40.875/- (In words Rs.One Lac Forty Thousand & Eight Hundred Seventy Five only )
(04) The O.P.-1 & 2 are further directed to pay compensation of Rs.-15,000/- (In words Rs. Fifteen Thousand only) for mental and physical harassment and litigation cost Rs.5000/- (In words Rs.Five Thousand only) to the complainant.
(05) O.P.No.-1 & 2 jointly & severally shall complied the order within 30 days from the date of receipt of the order.
(06) Copy of the order be given free of cost to the Complainant and Opposite Parties.
