( Delivered on 07/12/2018)

Per Smt. Jayshree Yengal, Hon’ble Member

1. The above mentioned two consumer complaints bearing Nos. CC/16/22 & CC/16/23 are filed by the same complainant, namely Mr. Dharmesh son of Chaturbhuj Agrawal under Section 12 of the Consumer Protection Act, 1986 seeking identical reliefs against  the same opposite parties ( for short OP)  Nos. 1 to 5 only out of following OP Nos. 1 to 7.

OP No. 1/Tulsi Builders and Developers a partnership firms.

Through its partners:-

OP No. 2 Sau S.M. Raut,

OP No. 3 Mr. Sachin M. Gudadhe,

OP No. 4 Sou Aruna Damodarrao Barde,

OP No. 5 Mr. Rajendra Babanrao Wankhede,

OP No. 6 Sudhir Madhavrao Gudadhe

OP No. 7 Sachin Madhavrao Gudadhe.

          OP Nos. 6 and OP No. 7 are added in the array of opposite parties  by way of abundant precaution although no specific relief is sought against OP Nos. 6 & 7.

2. The complainant in both the complaints has sought for directions against OP Nos. 1 to 5 to execute sale-deed in favour of the complainant in respect of flat No. 203 in Consumer complaint No. 16/22 and Flat No. 303 in CC/16/23 in “ Tulsi Enclave” situated on plot No. R-2, Khasra No. 133/2 of Mauja Jaitala, PH No. 44, City Survey No. 773,Shit No. 592/54, Ward No. 75 at Tahsil and Distt. Nagpur.
3. The complainant has further sought directions to OP Nos. 1 to 5 to pay Rs. 2,20,500/-  as compensation, which is inclusive of Rs. 20,000/- towards harassment and mental agony, Rs. 1,80,500/-  towards liquidated damages  at the rate of Rs. 500/- per month from 14/1/2013  to 14/2/2016  and further its actual realization as per clause 10 of registered agreement  to sell  dated 14/1/2013,  Rs. 20,000/- towards  litigation expenses in consumer complaint No. 16/22.

4.  The complainant in consumer complaint No. 16/23 has sought for directions to OP Nos. 1 to 5 to pay Rs. 8,14,000/- which is inclusive of Rs. 20,000/- as compensation towards mental and physical harassment and mental agony, Rs. 7,74,000/- towards liquidated   damages at the rate of 24 percent per annum from 27/8/2014  till its actual realization as per clause No. 10 of registered agreement to sell dated 27/8/2014, Rs. 20,000/- towards litigation expenses.
5. We proceed to decide both the complaints by this common judgment as the same complainant has filed identical consumer complaint seeking identical reliefs on identical facts and circumstances against the same OPs.
6. Facts in brief as set out by the complainants in both the above mentioned consumer complaints are  summarized in the following table.  

         The OP failed to execute the sale-deed in favour of the complainant in respect of both the above mentioned  apartments in spite of receiving the total consideration/substantial consideration towards the purchase of the above mentioned apartments.

7. The complainant in both the complaints has contended that the relief sought is against OP Nos. 1 to 5 only. The OP Nos. 6 and 7 are formal parties and arrayed as OP by way of abundant pre-caution as though they have already received the entire sale consideration in respect of the above mentioned land, their name still reflects as owner.  
8. The complainant has pleaded the following facts in both the complaints that is:-

1. The OP No. 6 /Sudhir Madhavrao Gudadhe  and the  OP  No. 7/Sachin Madhavrao Gudadhe and their father Maruti Gudhadhe executed agreement of sale and development on 13/7/2006 in favour of OP No. 1 /Tulsi Builders and Developers a partnership firms through its power of attorney holder namely OP No. 5/ Rajendra Wankhede. The OP Nos. 6 and 7 executed a registered power of attorney on 11/4/2008 in favour of OP No. 1 authorizing it to enter into agreement to sell, receive monies etc. in respect of above mentioned land. Mr.  Maroti, the father of OP Nos. 6 and 7 expired in the year 2012. The other legal heirs of Maroti Gudhadhe relinquished  their right in favour of OP Nos. 6 and 7. The OP Nos. 6 and 7 thus became the absolute owner of the property towards which they have already received the entire sale consideration.  The complainant after due verification of the above mentioned documents and title of the OP Nos. 1 to 5 entered into the agreement to purchase the flats as mentioned above.
2. The complainant made repeated request to the OP    to execute the sale-deed in his favour. The OP every time assured the complainant that they would soon start the construction activity and handover the physical and legal possession of the apartment. The complainant has further contended that the OPs failed to abide by the assurances given by them and therefore as per clause 10 of the agreement dated 15/3/2013 in complaint No.  CC/16/22 and 27/8/2014 in complaint No.  CC/16/23   executed between the opposite party  and the complainant, the OP No. 1 is liable to pay Rs. 500/- per month towards liquidated damages to the complainant, from the date of execution of the agreement till handing over the actual physical possession in complaint No.  CC/16/22. The OP No. 1 is liable to pay 24 percent per annum interest   by way of liquidated damages to the complainant from the date of execution of the agreement till handing over of actual physical possession in complaint No. CC/16/23.
3. The complainant issued a legal notice on 29/12/2015 in both the complaints  calling upon the OP to execute the sale-deed  or in the alternative to pay compensation  as detailed in the complaint. The complainant has filed the copies of the  agreement, form for sanction of building permit and commencement certificate issued by NIT,  copy of irrevocable power of attorney executed in favour of OP No. 1 through OP No. 5, copy of the order issued by competent authority in favour of the land owners, copy of the legal notice  issued by the complainant  to the OP Nos. 1 to 5 on 29/12/2015,  the postal receipts etc.

9. The OP Nos. 1 to 5 and  6 to 7 filed their appearance  through their advocate.
10.  The OP Nos. 1, 2 and  5 have specifically submitted in their written version  that they have not adopted any unfair trade practice  or  rendered deficiency in service by not executing the sale-deed. They have not disputed the execution of the agreement to sell and the payments made by the complainant t from time to time.  The  Ops  have  expressed their  inability to execute the sale-deed as  the property is mortgaged with the Nagpur Nagrik Sahakari Bank Ltd. Deonagar Branch, Nagpur. The OP firm had obtained loan from Nagpur Nagrik Sahakari Bank Ltd. to the tune of Rs. 3,0000000/- towards the construction and development  of the scheme by mortgaging the flats constructed on plot No. R1 and R2. It is submitted that unless and until the said bank issues a no objection certificate, the Ops.  cannot execute and register the sale-deed in favour of the complainant. The OP Nos. 1,2 and 5 have further submitted that the complainant is a private financer and provided hand loan to the OP/firm and got the Agreement to Sale  registered in respect of the alleged flats. The OP used to pay interest regularly to the complainant. The complainant however never issued any receipts. The complainant had executed the agreement to sale in respect of flat No. 203 and 303 as security of loan given to the OP/firm. The complainant therefore is not a consumer.
11. The OP Nos. 1,2 and 5 have  further submitted in their written version that the scheme was under  construction since the year 2008 and the firm had obtained loan from Nagpur Nagrik Co-operative Bank Ltd. for an amount of Rs. 3.75 crores.  About 70 percent of the construction was completed when the husband of OP No. 2 met with an accident. The construction work was hampered due to it. The loan could not be repaid to the bank in the stipulated time and therefore Nagpur Nagrik Co-operative Bank Ltd. attached the property mortgaged with it. The OP/firm had entered in to  Agreements to Sell  with 62 prospective purchasers of flats. They constantly pressurized the husband of OP No. 2 for clearance of the flats from the bank. The OP No. 2  sold out  their personal property and tried to clear the loan from the consideration received by them. However, an amount of Rs. 60,00,000/- is still outstanding towards the repayment of loan. The OP Nos. 6 and 7 are also not cooperating with the firm  and putting obstacles   in completion of the project. The OP Nos. 1,2 and 5 have  finally submitted that they are taking all efforts to complete the projects and register the sale-deeds in favour of all the perspective purchasers. The OP  therefore prayed for dismissal of the complaint with cost.
12. The OP Nos. 6 and 7  while denying the adverse allegations of the complainant have specifically submitted by way of preliminary objection that the complainant is not a consumer as he is a money lender and a builder. The complainant had entered into money lending transaction with OP No. 5 as per the directions of OP No. 2. The complainant has entered into a total transaction of money lending in respect of five apartments vide agreements dated (i) 14/1/2013, (ii) 15/3/2013 (iii) 27/8/2014 (iv) 10/4/2013 and (v) 17/6/2013, in which the amount paid to the respondent No. 5 was shown as Rs. 10,00,000/- on 14/1/2013, Rs. 19,00,000/- on 15/3/2013. Rs. 22,00,000/- out of which Rs. 12,00,000/- in cash and Rs. 10,00,000/- by cheque No. 461673 of Akola Urban Bank was shown as paid to respondent No. 5 on 27/8/2014. The complainant has shown to have paid Rs. 81,00,000/- to OP No. 5 from time to time by various cheques and cash. The complainant is known money lender. However, he is doing the said business of money lending without any licence. The complaint is not maintainable and void ab-initio and liable to be dismissed with heavy cost.
13.  On perusal of the copy of the complaint and written versions, the following issues arise for our consideration.

1. Whether the complainant is consumer?
2. Whether the OP Nos. 1 to 5 have rendered deficiency in service to the complainant and adopted unfair trade practice?
3. Whether the complaint deserves to be allowed ?
4. What Order ?

14.  Issue No. 1 - We perused the copies of agreements dated 15/3/2013 in complaint No. CC /16/22 and dated 27/8/2014 in  complaint No. CC/16/23. The said agreements to sell  are  executed between Sudhir M. Gudadhe and Sachin M. Gudadhe as vendors and M/s Tulsi Builders and Developers a partnership firm through its authorized partners Rajendra B. Wankhede as confirming party and  Ram Developers a proprietorship firm through its proprietor Mr. Dharmesh C. Agrawal as purchaser. The said Agreements to sell are signed by the vendor, confirming party and the purchaser. The contents of the same support all the facts in respect of booking of flats, their area, the payment received by the confirming party, the details of construction, the period for completion of construction and  the liability of the confirming party to pay interest towards liquidated damages in case of the vendor failing to abide by the terms and conditions of the agreement. The contentions of the complainant in both the complaints are totally supported by  the  terms and conditions of the said  agreements.
15. We are of the reasoned view that the complainant is a consumer. The OPs have not brought any documentary evidence or cogent evidence in support of their pleadings that the complainant had advanced loan and the OP was  repaying the same  regularly or that the complainant is a money lender and  all the  transactions  are an outcome of money lending transaction. We thus give the finding for issue No. 1 in the affirmative.
16.  Issue No. 2 – The OP Nos. 1,2 and 5 have not disputed the agreements executed with the complainant and the payment received from the complainant. They have specifically expressed  their liability to execute the sale-deed as it is yet to receive the “No Objection Certificate”  from the Nagpur Nagrik Sahakari Bank with whom the property in question is mortgaged. We are of the reasoned view that the availing and repayment of loan  is a  transaction between the OP No. 1 and Nagpur Nagrik Sahakari Bank independently. As per the  terms and conditions of the agreements executed by the OP with the complainant, the OPs are under an obligation to repay  the loan to Nagpur Nagrik Sahakari Bank. The Ops avoiding to perform their part of the contract of executing the sale-deed, handing over the possession of the flats in question after accepting the flat consideration. It is a glaring example of unfair trade practice by OPs and rendering of deficiency of service by them to the complainant.  The finding to issue No. 2 is in the affirmative.
17. Both the consumer complaints bearing Nos. 16/22 and 16/23, therefore deserves to be partly allowed. In the result, we pass the following order.

ORDER

1. Complaint bearing No. CC/16/22 and CC/16/23 are partly allowed.
2. The OP Nos. 1 to 5 to hand over possession  and execute sale-deed  of flat No. 203 in  ‘Tulsi Enclave’ in consumer complaint bearing No. 16/22 in favour of the complainant.   
3. The OP Nos. 1 to 5 to hand over possession  and execute sale-deed  of flat No. 303 in  ‘Tulsi Enclave’ in consumer complaint bearing No. 16/23 in favour of the complainant after accepting the balance  of Rs. 50,000/- towards total consideration from  him at the time of sale-deed.
4. The complainant shall bear expenses for execution & registration of aforesaid sale-deeds.
5. In the alternative, at the option of the complainant, the OPs to refund the amount as mentioned in the chart above to the complainant with 18 percent per annum interest from the date of respective payment till its realization.
6. OP Nos. 1 to 5 to pay Rs.20,000/-  as compensation for mental and physical harassment and Rs. 20,000/- towards litigation expenses in each complaint to the complainant.
7. Above mentioned directions to be complied within three months from the date of receipt of copy of this order by OP Nos. 1 to 5.