ORDER

(Passed on  10/07/2018)

PER SHRI.ATUL D.ALASHI, HON’BLE PRESIDENT.

The complainant has filed this complaint U/s 12 of the Consumer Protection Act,1986 alleging non  compliance of agreement and praying for allotment of plot or in the alternative refund of money and further claiming compensation for the Unfair Trade Practice on the part of Opposite Parties.

2.        The facts in short are that the complainant has agreed to purchase plot No.9admeasuring 135 sq.mt. from the layout known as Minakshi Nagari, Shivaji Ward, Mouza Parsoda, Tah.Warora, Dist.Chandrapur.  The OP No.1  is the developer and OP Nos.2 & 3 are the owners of the land where the scheme Minakshi Nagari is to be developed. The complainant paid Rs.3,41,000/- towards part payment  and remaining amount of Rs.22,150/- was agreed to be paid at the time of execution of the sale deed. The OP No.1 is the Power of Attorney Holder for OP Nos.2 & 3. The complainant has paid the agreed amount as per development agreement but the OPs failed to execute the sale deed of the plots. The complainant issued notice dated 9/5/2015 to the OPs through his Advocate Mr.Abhay Kullarwar for execution of sale deed as per agreement dated 4/7/2013 but the OPs did not comply the notice. The OPs. failed to comply the agreement inspite of repeated requests from the complainant, therefore it amounts to Unfair Trade Practice, hence, the complainant has filed this complaint for execution of sale deed of Plots bearing No.9or in the alternative refund of Rs.3,41,000/-  alongwith interest @ Rs.18% p.a. from the date of execution of agreement i.e. 4/7/2013 alongwith compensation for mental torture amounting to Rs.3 lac and cost of complaint Rs.50,000/-.

3.        The complaint is admitted and notices were served on the OPs. The OP No.1 filed its reply and thereby denied allegations against it and submitted that the OP Nos.2 & 3 are not necessary parties. It is admitted that the OP Nos.2 & 3 have executed power of attorney in favour of OP No.1 for development and sale of plots. On 20/3/2013, OP Nos.2 & 3 executed an agreement to sale field Survey No.50/2 admeasuring 1.62 hectare  for Rs.1,28,00000/- and OP No.1 paid Rs.1 lac to OP Nos.2 & 3. On 2.7.2013 possession letter was issued by OP Nos.2 & 3 in favour of OP No.1 and now the land on which the development was agreed to be carried out, is in possession of OP No.1 . But the OP Nos.2 & 3 failed to execute sale deed of the land bearing Survey No.50/2 in favour of OP No.1. Therefore the OP No.1 has filed Spl.Civil Suit bearing No.2/2015 (Amol Shambharkar Vs. Amita Purekar +2) before the Civil Judge Sr.Dvn. Warora for execution of sale deed and the said suit is still pending . The Hon’ble Civil Court was pleased to grant interim injunction in favour of OP No.1 thereby directing OP Nos.2 & 3 not to disturb possession of OP No.1 of the land and further not to creat third parte interest therein. It is admitted by OP No.1 in Special Civil Suit and reply of this petition that the complainant has paid Rs.3,41,000/- as per agreement between the complainant and OP No.1. The OP No.1 submitted that he is ready and willing to execute sale deed of the plot in favour of complainant after execution of sale deed of the land in question by OP Nos.2& 3 in favour of OP No.1.  The OP No.1 has never refused to execute sale deed of the plot in favour of complainant and there is no breach of agreement on the part of OP No.1. The OP No.1 cannot execute sale deed because the OP No.1 did not acquire clear title of the land in question. The field bearing Survey No.50/2 is an agricultural land and the complainant is not a consumer within the definition of Section 2(1)(d) of the C.P.Act,1986. Therefore submitted that the complaint deserves to be dismissed and it may be dismissed against OP No.1.

4.        OP Nos.2 & 3 filed their reply and denied allegations against them. It is admitted that OP Nos.2 & 3 have executed Power of Attorney in favour of OP No.1 for the development of land bearing  Survey No.50/2. The power of attorney was given for limited purposes.  OP Nos.2 & 3 denied the development and construction of Minakshi Nagari through OP No.1 and execution of agreement for sale in favour of complainant.  They admitted that on 2/7/2013 an agreement of sale of field survey No.50/2 was executed between OP No.1 and OP NOs.2 & 3 being the owners of said land. But the OP No.1 failed to perform the works as per power of attorney which was executed in favour of OP No.1 by OP Nos.2 & 3 and OP No.1 also failed to pay balance amount as per agreement of sale. Therefore the agreement of sale has been cancelled and still it is unexecutable. Therefore the OP Nos.2 & 3 have not executed sale deed of the land in favour of OP No.1. The Power of Attorney has been cancelled by issuing notice to OP No.1 through Advocate R.V.Hepat on 13/12/2013. The Power of Attorney was given for the limited period from 3/7/2013 to 1/11/2014 and for afflux  of time, the Power of Attorney is cancelled. The OP No.1 did not perform the works on behalf of OP Nos.2 & 3 as per the terms and conditions of power of attorney. Therefore the OP Nos.2 & 3 have cancelled the Power of Attorney and as such they have no concern with the complaint. The OP Nos.2 & 3 are not liable for any compensation. Therefore the complaint deserves to be dismissed against OP Nos.2 & 3.

5.        Counsel for the complainant argued that the complainant has paid the money as per agreement from time to time to OP No.1 who is the power of attorney holder for OP Nos.2 & 3 for the development and sale of plot bearing No.9 over agricultural field bearing Survey No.50/2 and the copies of payment receipts are filed on record. The complainant has filed agreement of development and agreement of execution of sale deed on record.  The OP Nos.2 & 3 are the original owners of the land for which the Power of Attorney has been given in favour of OP No.1. Therefore the OP Nos.2 & 3 are the necessary parties. There was dispute between OP No.1 and OP Nos.2 & 3 in respect of payment of balance amount towards execution of sale deed of the land which is the subject matter of this dispute, in favour of OP No.1.  One Spl. Civil Suit between the OP No.1 and OP Nos.2 & 3, bearing No.2/2015  for specific performance of contract is pending before the Civil Judge Sr.Dvn. Warora and all opposite parties agreed the execution of agreement of sale and money received by OP No.1 with knowledge of OP Nos.2 & 3 .  The OP No.1 had promised to convert the agricultural land into non agricultural land alongwith other necessary formalities as per agreement.  But inspite of several requests, the OP No.1 failed to comply the same as per agreement of sale on behalf of OP Nos.2 & 3. Therefore there is negligence on the part of OPs. Hence the petition may be allowed as prayed.  

6.          Counsel for the OP No.1 argued that the subject matter of the complaint is of civil nature. Therefore the dispute is a Civil Dispute and as such, the Consumer Fora has no jurisdiction and the complainant is not a Consumer within the meaning of Section 2(1)(d) of the C.P.Act.  Further for non joinder of OP Nos.2 & 3 in the complaint, the complaint deserves to be dismissed. 1petition bearing Spl.Civil Suit No.2/15 is pending for specific performance of contract and execution of sale deed in favour of OP No.1 and due to injunction order the OP No.1 could not execute the sale deed in favour of complainant. The OP No.1 has performed his duty to convert the subject matter land into non agricultural layout as per agreement. The OP No.1 is ready to execute sale deed if OP Nos.2 & 3 execute sale deed of the land in question in favour of OP No.1. Hon’ble Civil Judge has passed temporary injunction on 8/2/2016  in Spl.Suit No.2/15 ion favour of OP No.1 and the OP Nos.2 & 3 are restrained from interfering with the possession of OP No.1 in respect of subject matter of this complaint. Therefore there is no negligence on the part of OP Nos.1 in not executing sale deed in favour of complainant. Hence the complaint deserves tobe dismissed against OP No.1.

7.        Counsel for OP Nos.2 & 3 argued that OP Nos.2 & 3 have executed Power of Attorney for the land subject matter of this complaint in favour of OP No.1 for the development and sale of land. The OP Nos.2 & 3 have executed agreement of sale of said land in favour of OP No.1. The OP No.1 has paid Rs.11 lac to OP Nos.2 & 3 at the time of agreement of sale  of land bearing survey No.50/2, dated 2/7/2013 . However, the OP No.1 has failed to pay the balance amount of Rs.4 lacs till 15/7/2013 as per agreement. Therefore there is breach of agreement on the part of OP No.1. Therefore the sale deed could not be executed in favour of OP No.1. OP Nos.2 & 3 have executed Power of Attorney on 2/7/2013 in favour of OP No.1 for the purpose of conversion of agricultural land into non agricultural land, booking of plots, receipt of amounts and to execute agreement of sale for plots etc. on behalf of OP No.2 & 3. The OP No.1 failed to perform the works assigned as per Power of Attorney. Therefore there is breach of Power of Attorney and agreement of sale on the part of OP No.1. Therefore, the OP Nos.2 & 3 are not responsible to pay any compensation to the complainant because there is no privity of contract between complainant and OP No.1 for the subject matter field survey No.50/2. Therefore the complaint deserves to be dismissed against OP Nos.2 & 3.

8. 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 ?     Yes

3. Whether there is unfair trade practice on the part of OP Nos.1to3   Yes

 4. What order ?                                                                                    As per final order..

As to issue No.1

9.        The O.P.No.1 executed an agreement to sale for plots bearing No.9 from field survey number 50/ 2 as per agreement dated 4/7/2013 by paying an amount of 3,41,000/- with a condition that all documents of plots along with possession thereof to be handed over on 6. 12 2014. The opposite parties number 2 and 3 had executed power of attorney for that purpose in favour of O.P.No.1. When there is an agreement between the parties for the execution of sale deed with completion of all formalities including development of plots, layout of plots, drainage 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 number 2

10.       The consumer forum has concurrent jurisdiction in addition to the law for the time being in force. The O.P.Nos. 1 to 3 have failed to provide facilities agreed as per agreement of sale for conversion of plots and facilities there to, to the complainant. Therefore the dispute is not a dispute of civil nature only. Hence, the Consumer Forum has jurisdiction to entertain the dispute involved in the present case. The non performance of all formalities by OPs gives a continuous cause of action as per the ruling of Hon'ble National Consumer Dispute Redressal Commission, New Delhi reported in 2018 (CPJ) page 146 in Saroj Kharbanda's case. Therefore the issue has been decided accordingly.

As to issue number 3.

11.           The OP No.1 has admitted in his reply that the agreement for sale and development is executed for the plots bearing No. 9 from the field survey number 50/2 between complainant and O.P.No.1 and he received Rs. 3,41,000/-  towards part payment of consideration of the plots from the complainant. The O.P.No.1 has also admitted in reply that O.P.No.1 has promised to complete all the formalities for the development of complainant’s plot in non agriculture use of plots, development of roads, drainage etc. as per agreement. The O.P.No.1 has also admitted in his reply that the work of development of plots has been already carried out as per power of attorney executed by O.P.No. 2 and 3 in favour of O.P.No.1 in respect of those works. The O.P.No.1 is ready and willing to execute sale deed of the said plots in favour of complainant, but due to the dispute between O.P.No.1 and O.P.No.2 and 3 the sale deed could not be executed. There is temporary injunction order passed by the Hon’ble Civil Judge, Senior Division, Warora, District Chandrapur to that effect. The O.P.No. 1 has filed a copy of the civil suit bearing special civil suit number 2/15 between O.P.No.1 and O.P.No.2 and 3 on record. The O.P.No.1 has admitted in that Civil suit that O.P.No.1 has developed the suit land in the name Meenakshi Nagri and has spent Rs 50 lakh for developing the layout and other related works. The O.P.No.1 has laid in all 71 plots in that layout with the direction and knowledge of O.P.No.2 and 3 in pursuance of power of attorney given by O.P.Nos. 2 and 3. The O.P.No.1 entered into booking of 23 plots as per agreement with different persons. The O.P.No.1 agreed in the reply that several amounts have been adjusted from different transactions in respect of the suit plots with O.P.No.2 and 3 and SS Builders. The Honorable Civil judge, Senior division was pleased to pass temporary injunction order dated 8.2.2016 in favour of O.P.No.1 directing, not to dispossess the O.P.No.1 or create third party interest in the suit property. It is an admitted position that there was no temporary injunction order on the date of execution of agreement of sale between complainant and O.P.No.1 and also on agreed date of execution of sale deed i.e.1.1 .2015. On the other hand the O.P.No.1 has not issued any notice showing inability to execute the sale deed and showing readiness to refund the amount received for the plots from the complainant. On the other hand the O.P.No.1 has kept the complainant in dark saying that all Documents of Title and other documents of plots would be handed over to the complainant at the time of execution of sale deed. The O.P.No.1 has carried all the works of the plots as per the power of attorney issued by the original owners of the land, O.P.No.2 and 3. But the O.P.No.1 has failed to complete the necessary developments of plots and to execute the sale deed of the plots or to refund the earnest money which he received from the complainant, even after receipt of notice dated 9.5.2015 for specific performance of contract issued by the complainant through his advocate Abhay kullarvar. On the other hand, OP Nos. 1 to 3 have adjusted the amount received from booking of plots towards the agreement of sale of plots between O.P.No.1 and O.P.No.2 and 3.

12.     As per the news published in newspaper in respect of booking of plots and development and selling of plots in field survey number 50/ 2,  OP Nos. 2 and 3 must have knowledge about development of layout plots and execution of agreement to sale, but they have never objected for the booking and development of the plots which are owned by O.P.No.2 and 3. Therefore the O.P.No.2 and 3 are having knowledge of all the transactions of booking and selling of plots to the complainant by the O.P.No.1. When the O.P.No.1 under the authority of O.P.No.2 and 3, had agreed to obtain requisite permissions and develop the land, and then to execute sale deed of plots in favour of complainant then it is Unfair Trade Practice.

13.   It was their duty to perform their part of contract within the time frame. The OP No.1 failed to supply all documents at the time of agreement to sale to the complainant. The non submission of all deeds and documents in respect of plots at the time of execution of agreement between builder and purchasers of plot amounts to deficiency of service. The complainant cannot wait for unlimited period for completion of formalities and execution of sale deed. The opposite parties cannot avoid their responsibility of execution of sale deed for a long.. When the execution of sale deed is not possible or is beyond control, then the opposite parties should have immediately issued notice and refunded the earnest amount along with interest to the complainant. The utilization of earnest amount of the complainant for a long period of time with an intention to avoid execution of sale deed amounts to Unfair Trade Practice. Therefore the opposite parties No. 1 to 3 are liable for compensation for the unfair trade practice as per judgement of the Hon’ble State Commission, Maharashtra, Nagpur Bench in appeal number AA/14/7 decided on 10/2/ 2017 by Hon’ble Shri Shaikh and Hon’ble Mrs. Yengal holding that the complainants cannot wait for unlimited period for obtaining sale deed.  Therefore the complaint is allowed as per following order.

Final order

1. The Complaint is partly allowed.

2. The O.P.Nos. 1 to 3 are directed to refund jointly and severally the earnest amount of Rs. 3,41,000/- to the complainant along with interest @ 18% per annum from the date of admission of the complaint i.e. 30/11/2015 till realisation.

3. The O.P.Nos. 1 to 3 are directed to jointly and severally to pay compensation of Rs.20,,000/- to the complainant for the physical and mental agony along with Rs.10,000/- towards litigation cost.

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