State Consumer Disputes Redressal Commission
Shri.Narayan Bhauji Bhasarkar vs Shri.Pratik Sagar Dambhare on 10 February, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR First Appeal No. FA/14/7 (Arisen out of Order Dated 22/11/2013 in Case No. CC/173/2012 of District Nagpur) 1. SAU.UMA TULARAM BHAISARE R/O.NETAJI NAGAR,VIJASAN,BHADRAWATI,TAH-BHADRAWATI,DISTT-CHANDRAPUR CHANDRAPUR ...........Appellant(s) Versus 1. SHRI.PRATIK SAGAR DAMBHARE R/O.2 MEERA TOWER,DAMBHARE LAYOUT,TRIMURTI NAGAR,NAGPUR,TAH&DISTT-NAGPUR NAGPUR ...........Respondent(s) First Appeal No. FA/14/10 (Arisen out of Order Dated 22/11/2013 in Case No. cc/181/2012 of District Nagpur) 1. Shri.Narayan Bhauji Bhasarkar R/o.panchsheel Nagar,Bhadrawati,Tah-Bhadrawati,Dist-Chandrapur Chandrapur ...........Appellant(s) Versus 1. Shri.Pratik Sagar Dambhare R/o.2,Meera Tower,Dambhare Layout,Trimurti Nagar,Nagpur,Tah&Dist-Nagpur Nagpur ...........Respondent(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MRS. Jayshree Yengal MEMBER For the Appellant: Advocate Mr.Pandhare For the Respondent: Dated : 10 Feb 2017 Final Order / Judgement Per Shri B.A.Shaikh, Hon'ble Presiding Member.
1. These two appeals are filed by original two complainants in two complaints bearing C.C.Nos. 173/2012 and 181/2012 namely Sau. Uma Tularam Bhaisare and Shri Narayan Bhauji Bhasarkar against the common order passed by the Additional District Forum, Nagpur in 47 complaints. As per that common order, directions has been given to the opposite party (for short O.P.) to refund to all the complainants the amount of consideration paid by each of them to the O.P., with interest @ 12% p.a. from the date of complaint till realisation of the same by them and also to pay each of them compensation of Rs.10,000/- for physical and mental harrasment and cost of Rs.5000/- within a period of 30 days from the date of receipt copy of said order.
2. The common case of the aforesaid two complainants namely Sau. Uma Tularam Bhaisare and Shri Narayan Bhauji Bhasarkar as set out by them in aforesaid two complaints Nos.173/2012 and 181/2012 in brief is as under.
3. The O.P. gave a public advertisement and thereby he offered for sale of plots of his land bearing Kh.No.5. The O.P. is a builder and he offered his services as builder under the name and title as " Meera Vihar Land Developer's" and therefore the aforesaid complainants entered into separate agreements with him to purchase the plots. The complainant Sau. Uma Tularam Bhaisare entered into an agreement to purchase two plots bearing Nos.34 and 91 worth Rs.1,06,804/- and Rs.1,26,000/- respectively i.e. for total worth Rs.2,32,804/-. Another complainant Narayan Bhauji Bhasarkar entered into an agreement to purchase plot bearing No.9 for a total consideration of Rs.1,92,390/-. They also paid aforesaid full consideration of the plots in instalments to the O.P. However the O.P. did not execute the sale deed of the same in their favour though he had assured for the same at the time of agreement. He refused to execute the sale deed and therefore the aforesaid two complaints were filed before the Forum seeking common direction to the O.P. to execute registered sale deeds of the aforesaid plots in their favour and also to pay each of them compensation of Rs.1 lakh for physical and mental harassment and also to pay each of them interest @ 15% p.a. over the respective amount of Rs.2,32,804/- and Rs.1,92,320/-. They also requested that the direction be given to O.P. to pay each of them Rs.25,000/- towards cost of the litigation.
4. The O.P. appeared before the Forum and filed identical written version/reply in both complaints. The submission of the O.P. in brief is as under.
It is admitted that the complainants entered into contract with him for purchasing the plots. He also admitted that he gave public advertisement calling the general public to purchase the plots of his land. He also admitted that he received the consideration of the plots as mentioned in para No.4 of both the complaints. He submitted that he has started process for conversion of the agriculture use of land in to non agricultural use of land. However till filing of that reply he could not get converted the said use of land and therefore he is unable to execute the registered sale deed of the plots. He denied that he refused to execute the sale deed. The complainants knew that it is an agriculture land and it requires conversion for non agriculture use. Therefore he contended that he has not adopted Unfair Trade Practice and he requested that the complaints may be dismissed with cost.
5. The Forum below heard both the parties and then passed the common impugned order as noted above, whereby direction has been given to original O.P. to refund the amount mentioned in the complaint and to pay compensation of Rs.10,000/- for physical and mental harassment and cost of Rs.5000/- to each of the complainant.
6. As observed above, these appeals are filed by two complainants only against that common order. We have heard Advocate Mr.Pandhare appearing for original complainants/appellants herein. Initially notices were issued by this Commission to the O.P./respondent herein through Registered Post A/D. However they were returned un-served. Therefore as per request of the appellant's Advocate, permission was granted to the appellants to publish the notice in both the appeal against the respondent herein in local news paper. Accordingly the notices of both the appeals have been duly published by the appellant in local news paper namely "Dainik Bhaskar". The appellant also produced one of the issue of said news paper on record in both appeals. It is thus proved that the notices issued by this Commission in both appeals have been duly published in local news paper and hence it is declared that notices have been duly served to the respondent herein. The respondent failed to appear. Therefore this Commission proceeded ex-parte against him as per order dated 25/11/2016 passed in both appeals.
7. We have also perused the copies of the record and proceeding of both the complaints as placed before us by the appellant's Advocate.
8. The learned Advocate of the appellants submitted in brief as under.
a) No relief was sought in the complaints for the refund of full consideration paid by the complainants to the O.P. But the Forum without seeking said relief directed appellant to refund amount and therefore the impugned order can not be sustained under law.
b) The original O.P./respondent has admitted in reply that full consideration of the plots has been received by him. However the Forum in one of the complaint No.173/2012 filed by Sau. Uma Tularam Bhaisare erroneously held that part of the consideration i.e. Rs.25,800/- + Rs.77,875/- i.e. total Rs.1,03,657/- only is paid. Therefore the order to that effect is erroneous and needs to be set aside.
c) The Forum has not given any reason as to why the direction for execution of sale deed can not be given as prayed by the complainants in both the complaints. The said direction therefore needs to be given in appeals.
d) The Forum has not granted compensation towards escalation in price of the plots, while directing refund of the consideration paid by the complainants to the O.P. Therefore the direction to pay escalation in price needs to be given in appeals, in case the direction for refund of the money is maintained.
e) Further the compensation of Rs.10,000/- granted by the Forum is very low and therefore it needs to be enhanced considering physical and mental harassment.
f) Cost of Rs.5000/- granted by the Forum is also very low and it also needs to be enhanced.
9. The defence of the O.P./respondent is that permission for conversion of the use of the land is still not received from the competent authority and therefore direction can be given that if permission is not received, the money paid to the O.P. be refunded to them and compensation equal to the amount paid to the O.P. may be granted with interest.
10. It is seen that the O.P./respondent herein has not disputed his receiving entire consideration of Rs.2,32,804/- in case of Sau. Uma Tularam Bhaisare and entire consideration of Rs.1,92,390/- in case of Shri Narayan Bhauji Bhasarkar. Moreover the O.P./respondent also admitted that in view of the payment of said consideration, the sale deeds were required to be executed inrespect of the aforesaid plots infavour of the said complainants. However it was the simple case of O.P./respondent before the Forum that as requisite permission from competent authority was not obtained about non-agricultural use of land, he could not execute the sale deed of the plots of that land. In our view as original O.P./respondent herein offered for sell aforesaid plots to the respective complainants, it was his sole responsibility to obtain the requisite permission as early as possible for non-agricultural use of land so as to execute the sale deed of the same infavour of the respective complainants, particularly when he got full consideration of plots from them. The complainants can not wait for unlimited period for obtainiing sale deed from O.P. The O.P.can not avoid his responsibility of execution of the registered sale deed of the plots when he admitted that he received full consideration of the plots.
11. The documents produced on record by appellant shows that the process for obtaining said permission was started. However till the passing of the impugned order the said permission was not obtained. In our view the Forum erred in not giving direction to O.P. to execute the registered sale deed of the plots. No reason is given by the Forum as to why the said direction is not given. Thus we hold that in appeals the said direction needs to be given.
12. Moreover we also find that compensation of Rs.10,000/- for physical and mental harassment granted by the Forum needs to be enhanced considering harassment caused to both the complainants. Therefore the said compensation needs to be enhanced up to Rs.25,000/- for each of the complainant. So also we find that if the requisite permission can not be obtained as required for executing the sale deed for any reasons, then entire consideration paid by the complainants to the O.P. needs to be refunded with interest @ 12% p.a. as awarded by the Forum. We also find that in case of the refund of the amounts, the complainants are also entitled to compensation towards the escalation in the price of the plots, equal to the amount of consideration paid by them to the O.P. Moreover interest @ 9% p.a. needs to be awarded over the aforesaid amount. So also we find that cost of Rs.5000/- granted by the Forum needs to be enhanced to Rs.20,000/- to be paid to each of the complainant.
13. In the result following order is passed.
// ORDER // I. Both the appeals bearing Nos.FA/14/7 and FA/14/10 are hereby partly allowed as under.
The common impugned order passed in two complaints bearing C.C.Nos. 173/2012 and C.C./181/2012 is hereby modified and substituted as under.
The original opposite party/respondent herein shall execute sale deed of plots bearing No.34 and 91 described in complaint No.173/2012 infavour of the complainant Sau. Uma Tularam Bhaisare. The said complainant shall bear the expenses for execution and registration of the sale deed.
The original opposite party/respondent herein shall execute sale deed of plot bearing No.9 described in the complaint No.181/2012 infavour of the complainant Shri Narayan Bhauji Bhasarkar. The said complainant shall bear the expenses for execution and registration of thesale deed.
The original O.P./respondent herein shall pay to each of the aforesaid two complainants compensation of Rs.25,000/- for physical and mental harassment and cost of Rs.20,000/-
If the sale deed of the said plots can not be executed due to any legal hurdle, the original O.P./respondent herein shall refund consideration of Rs.2,32,804/- to the complainant Sau. Uma Tularam Bhaisare in complaint No.173/2012 with interest @ 12% p.a. from the date of the said complaint i.e. from 01/02/2013 till realisation of the same by her.
Similarly if the sale deed of the said plot can not be executed due to any legal hurdles, the O.P./respondent herein shall refund consideration of Rs.1,92,320/- to the complainant Shri Narayan Bhauji Bhasarkar in complaint No.181/2012 with interest @ 12% p.a. from the date of said complaint i.e. from 01/02/2013 till realisation of the same by him.
If the sale deeds can not be executed due to any legal hurdle infavour of both the complainants, the O.P./respondent herein in, in addition to the refund of aforesaid amount, shall also pay compensation of Rs.2,32,804/- to complainant Sau. Uma Tularam Bhaisare and compensation of Rs.1,92,320/- to complainant Shri Narayan Bhauji Bhasarkar with interest @ 9% p.a. from the date of said complaints i.e. from 01/02/2013 till realisation of the same by them, towards the escalation in price of the plots.
Copy of the order be furnished to both parties free of costs.
[HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MRS. Jayshree Yengal] MEMBER