1.     Appellant Reatox Builders and Developer has preferred the present appeal challenging the judgment and  order passed by the learned District Consumer Commission of Nagpur, in Consumer Complaint No.821/2013 dated 15/11/2016, where by the Consumer Complaint came tobe allowed and the appellants were directed to refund the sum of Rs.14,42,250/- alongwith interest @18% p.a. as well as compensation of Rs.25,000/- and Rs.5000/- towards cost of litigation.  (Appellant and respondent shall be referred by their original nomenclature)

2.    Short facts leading to the filing of the present appeal may be narrated as under :-

3.      Complainant No.1Shri Venkatesh Raghavendra Rao Kasi is the husband of complainant No.2 Sau Saraswathi Kasi and both are residents of Giripeth Nagpur. O.P.No.1 is a Company registered under the Companies Act and is engaged in business of building construction as Builders and Developers. O.P.No.1(a) to 1(d)  are the Chairman and Directors of the said company. O.P.No.2 is Maharashtra Airport Development Company Ltd. (MADCL) and is incorporated and promoted by the State Government for development of land. O.P.No.3 is State Bank of India. As per development agreement  (O.P.No.2)  Maharashtra Airport Development Company Ltd. (MADCL) was to allot land to O.P.No.1 situated at MIHAN, Wardha Road, Nagpur. Complainant Nos.1 and 2 were impressed by the project and so they approached the O.P.No.1 Reatox Builders and Developers for purchase of flat. Complainants have further contended that they have also entered into an agreement with

O.P.No.1 and accordingly the O.P.No.1/appellant allotted one flat admeasuring 1282 sq.ft. on 4^th floor of the apartment Symphony       B-0402 for consideration of Rs.34,55,383/-. Complainants have contended that accordingly they have also paid part of the consideration. Complainants have also taken housing finance from O.P.No.3/SBI, but subsequently the complainants were pursuing and hoping for getting the flat but the O.P.No.1 failed to complete the project and also failed to handover the possession of the flat. Complainants have contended that project was tobe completed in the year 2009, but the same was not completed on account of several disputes which had arisen. Complainants have contended that thereafter Arbitrator was appointed under the provisions of Arbitration and Conciliation Act. Complainants have contended that by not completing the project and not handing over the possession of the flat the O.P.No.1/appellant had committed breach of contract as well as grave deficiency in service and so complainants were entitled for refund of amount of Rs.14,42,250/- alongwith interest @24% p.a. as well as costs and compensation.

4.      After filing of the complaint due notices were issued to O.P.Nos.1 to 3. O.P.Nos1(a) to 1(d) were duly served but they failed to appear and so complaint proceeded ex-parte against O.P.Nos.1(a) to 1(d)/appellant. O.P.No.2 MADCL has appeared and filed their written version. O.P.No.2 has admitted that on 22/06/2006 O.P.No.1 had entered into an agreement to construct the project within 24 months in MIHAN Notified Area. O.P.No.2 has also contended that as per the Tripartite Agreement the complainants have paid initial amount of Rs.9,42,250/- to the O.P.No.1 and remaining sum was tobe paid by O.P.No.3/SBI directly to O.P.No.1. O.P.No.2 has contended that there was no privity of contract with the complainant and no relief was claimed against O.P.No.2.   O.P.No.3/SBI has also appeared and filed its written version on record.

5.         The learned District Consumer Forum Nagpur thereafter went through the contents of the complaint, written statement as well as the evidence adduced on record. The learned District Consumer Forum also went through the written notes of argument submitted on behalf of complainant as well as the opposite party. After appreciating the evidence adduced by the parties the learned District Consumer Forum Nagpur came to the conclusion that the O.P.No.1/appellant had committed deficiency in service as well as Unfair Trade Practice by not completing project as promised and also by not handing over the possession of the flat to the complainants despite having received huge amount of Rs.14,42,250/-. Learned District Consumer Commission Nagpur therefore came to the conclusion that complainants were entitled for refund of the amount of Rs.14,42,250/- alongwith interest but O.P.No.2 MADCL as well as O.P.No.3/SBI were not liable or responsible for the acts of O.P.No.1. Learned District Consumer Commission Nagpur therefore partly allowed the complaint and directed the O.P.No.1/appellant to refund the sum of Rs.14,42,250/- alongwith interest @ 18% p.a. to the complainants as well as compensation of Rs.25,000/- towards cost of litigation by judgment and order dated 15/11/2016. Against this judgment and order dated 15/11/2016 the present appellant has come up in the present appeal.

6.      We have heard the learned advocate for the appellant Mr.A.V.Khare as well as learned advocate for respondent/ complainant Mr.K.C.Khare. We have also gone through the record and proceedings of the District Consumer Commission Nagpur. On the basis of the facts stated above the only point which arises for our determination is as under with our finding recorded thereon and reasons to follow :

Reasons for finding :-

7.      It is not in dispute that the respondent/complainant Complainant No.1Shri Venkatesh Raghavendra Rao Kasi is the husband of complainant No.2 Sau Saraswathi Kasi  had booked one flat in apartment namely Symphony B-402 for total consideration of Rs.34,55,383/- and had also entered in to an agreement for sale. It is also not seriously in dispute that the respondent/ complainant had also paid part of the consideration amount of Rs.14,42,250/- to the appellant/builder M/s. Reatox Builders and Developers. There is also no serious dispute that the builder had also promised to complete the entire project by 2009, but never completed the project. It is the case of respondent/complainant that they were continuously pursuing the matter but they came to know that the builder was unable to repay the loan taken from State Bank of India for the project. It is also not seriously in dispute that as per clause No.10(a) agreement for sale in the event of cancellation of flat for any reason the builder/developers was under obligation to return the entire amount. Here, in the present case it appears that the builder was unable to complete the obligation as per tripartite agreement with O.P.No.2 MADCL  and was also not able to pay the dues and so O.P.No.3 SBI had proceeded against O.P.No.1 builder and developer under the provisions of SARFESI Act. But we are not directly concerned with this fact as the main dispute in the present complaint is relating to the Consumer Complaint regarding deficiency in service against O.P.No.1 builder/developer.

8.      Coming now to the contention raised in the present appeal, it is submitted on behalf of appellant that the appellant/O.P.No.1 could not appear before the District Consumer Commission as the notice was not duly served. We have duly considered this aspect and we do not find any material placed on record by the appellant to show that the address mentioned in the complaint was incorrect or that the address of the appellant was not the same. Appellant has not placed any documents on record to show that there was no office on the address shown in the cause title of the complaint and so this contention of the appellant is not tenable and can not be accepted.

9.      The next contention advanced on behalf of the appellant is that the present appellant Reatox Builder was only the developer and was developing the project on the basis of power of attorney executed in its favour by the owner namely MADCL. It is submitted that the O.P.No.2 MADCL had terminated the agreement for development with the appellant and therefore the agreement could not be executed and the same was beyond the capacity of appellant for which the appellant can not be blamed. Admittedly there was tripartite agreement executed between the appellant builder and developer and O.P.No.2 MADCL authority by which the appellant was authorized to start the project and also to complete the same after taking the necessary finance. If we turn to written version filed by O.P.No.2 MADCL, MADCL has taken a stand that it had terminated the agreement dated 22/06/2006 with the builder and developer as the builder had committed breach of terms and conditions of Development Agreement. Further the builder had also not taken any steps to complete the project which was named as ‘First City Project’ in MIHAN Area developed by the MADCL. O.P.No.2 has also taken stand that it was Nodal Agency appointed as Special Planning Authority under the Maharashtra Regional and Town Planning Act and also had no privity of contract with the present complainants as no relief has been sought against the O.P.No.2. There can be no dispute on this aspect for the simple reason that the complainant No.1 and 2 were only the buyers/purchasers of the flat in the proposed project of O.P.No.1/builder. Admittedly the complainant have also parted with huge amount of Rs.14,42,250/- in the hope of getting the flat for residence but the dream was never fulfilled and so the complainant was certainly entitled  for refund of amount of Rs.14,42,250/-. It is needless to mention that the complainants had paid the amount in the fond hope of getting the flat for residence and the said amount was lying with O.P.No.1 and as such complainants were also entitled for interest on the same amount. It is contended on behalf of appellant  that the interest demanded by the complainants @ 24% p.a., same was exorbitant and also not permissible. It is also argued by the learned advocate for the appellant that the interest @ 18% p.a. was excessive in nature but in the peculiar fact of this case we are of the view that the interest @ 18% p.a. can not be termed as excessive.

10.    In the light of the aforesaid discussion we are unable to accept the contention advanced by the appellant and we hold the appeal is devoid of any substance and so we proceed to pass the following order.  

// ORDER //

i)             Appeal is hereby dismissed

2.       Parties to bear their own cost.
3.      Copy of the order be furnished to both parties free of    

               cost.