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Judgment
Ram Surat Ram Maurya, Presiding Member
Heard Ms. Neha Gupta, Advocate for the appellant and Mr. Arjun Jain, Advocate, for the respondent.
The judgment debtor has filed above appeal from the orders of State Consumer Disputes Redressal Commission, Himachal Pradesh, dated 29.07.2019, passed in Execution Application No.2 of 2017, holding the appellant as guilty for not complying with the order dated 25.04.2017, passed in Consumer Complaint No.14 of 2015 and 14.10.2019, awarding punishment of two years simple imprisonment and fine of Rs.10000/-. In default of payment of fine, one month further simple imprisonment, under Section 27 of Consumer Protection Act, 1986 corresponding Section 72 of Consumer Protection Act, 2019.
Asha Sahore (the respondent) filed CC/14/2015 for directing M/s. Ahlawat Developers & Promoters and its proprietor Jagdish Ahlawat (the appellant) (i) to handover possession of Flat No.402, Tower A-4, in project “Himachal One”, Pinjore Nalagarh Road, district Solan, (ii) to pay Rs.157500/- as rent for the month of June 2014 till October, 2015 (iii) to pay Rs.15000/- per month till delivery of possession and (iv) to pay Rs.one lac as compensation for mental agony and harassment or in alternative to refund Rs.2900000/- with interest @12% per annum from the date of deposit till its payment.
The complainant stated that M/s. Ahlawat Developers & Promoters (for short the developer) was a firm and engaged in development and construction of residential and commercial building and selling its unit to the prospective buyers. Jagdish Ahlawat (the appellant) was its Proprietor. The developer launched a project of group housing in the name of “Himachal One”, at Pinjore Nalagarh Road, Malku Majra Baddi, district Solan, in the year 2011. The complainant entered into Apartment Buyer Agreement dated 02.11.2011 with the developer for purchasing Flat No.402 (super area 1575 sq.ft., Tower A-4, in project “Himachal One”, for total sale consideration of Rs.29/- lacs, which was paid before the agreement and payment was acknowledged in the agreement. Under clause-14 of the agreement, the developer promised to give possession of the flat complete, as per specification under Clause-8 of it, within 180 days from the agreement. Under clause-41 of the agreement, the developer assured for rental of Rs.10500/- per month for a period of three years from the date of final payment. But the developer failed to give possession within stipulated period as well as the rental amount.
The developer filed written reply and contested the complaint. The facts as stated in the complaint have not been disputed. It has been stated that total sale price as paid at the time of agreement did not include car parking space and other statutory payments/taxes. Due to unavoidable circumstances, the construction was delayed. However, the construction was completed and the developer through letter dated 10.01.2015 offered possession. Along with letter dated 10.01.2015, statement of account was also given. The complainant neither deposited that amount nor took possession of the flat. The developer gave reminders dated 03.05.2015 and 14.09.2015, in this respect. Concealing these facts, the complaint was filed.
State Commission, vide judgment dated 25.04.2017, held that as per agreement, the developer was under obligation to give possession on or before 02.05.2012 but admittedly delivery of possession was delayed. The developer admitted that internal door works, electrical fittings and sanitary fittings were not completed. The charges of car parking space was inclusive in total sale consideration of Rs.29/- lacs. However, the complainant has to pay electricity charges and other statutory charges/taxes. On these findings, the complaint was allowed and the developer was directed to give possession of the flat, complete in all respect within one month and pay rental charges at the rate of Rs.10500/- per months from 02.05.2012 till handing over possession and compensation of Rs.25000/-. In alternative to refund Rs.29/- lacs along with interest @9% per annum from the date of deposit till its payment.
The respondent filed an application (registered as Execution Application No.2 of 2017), on 27.06.2017, for taking action under Section 27 of Consumer Protection Act, 1986, against the appellant for non-compliance of order dated 25.04.2017. State Commission, after hearing the parties, by order dated 29.07.2019, held that the appellant was guilty for non-compliance of order dated 25.04.2017. After hearing on sentence, vide order dated 14.10.2019, awarded sentence of two years simple imprisonment and fine of Rs.10000/-. In default of payment of fine, one month further simple imprisonment. The appellant was in jail in FIR No.126/2018 under Section 420, 406, 465 & 467 IPC at that time. As such it was ordered that after releasing from jail in aforesaid case, warrant for imprisonment would be prepared to serve the sentence. Hence this appeal has been filed, after the appellant was enlarged on bail in the aforesaid case.
In the meantime, the complainant filed Execution Application No.7 of 2019 on 27.11.2019, for executing the order dated 25.04.2017 passed in CC/14/2015. In this execution case, the property of the appellant was attached by State Commission vide order dated 14.09.2020. The appellant/judgment debtor then settled the dispute with the decree holder out of court on 20.03.2020 (date may be 20.03.2021). The parties moved an application, for deciding the execution application in terms of settlement before State Commission, stating that dispute between them had been settled. State Commission, vide order dated 22.03.2021, decided Execution Application No.7 of 2019, in view of settlement between the parties. By subsequent order dated 06.04.2021, attachment of the properties of the appellant was withdrawn and the attached properties were released to the appellant.
In view of settlement, the appellant executed a registered deed dated 07/11.06.2021, giving an undertaking to the respondent to give possession of Flat No.402, complete in all respect, as mentioned in clause-8 of the agreement dated 02.11.2011, till 30.09.2021.
The appellant moved an application before the Competent Authority on 07.06.2021, for issue of Partial Completion Certificate. Thereafter, reminders were given on 04.08.2021, 09.08.2021, 04.09.2021, 16.09.2021, in this respect.
The appellant, vide letters dated 27.09.2021 16.10.2021, 18.11.2021 and 19.11.2021, offered possession to the respondent, over flat in question. The respondent, vide email dated 20.11.2021, replied that under the settlement dated 20.03.2021, conveyance deed had to be executed till 30.09.2021 but you have failed to execute conveyance deed in time. On 04.10.2021, Flat No. 402 was inspected in presence of the son of the appellant and it was found that it was not complete in terms of clause-8 of the agreement. The rent agreed should be paid before 24.11.2021. Air conditioner should be fitted in the flat as per clause-8. Orthopaedic Mattresses be placed.
The appellant sent a registered notice dated 12.01.2022 to the respondent to be present in the office of Sub Registrar Baddi, Solan on 27.01.2022, for execution and registration of sale deed. The respondent however did not come before Sub Registrar Baddi, Solan on 27.01.2022. The appellant then got an affidavit sworn before Executive Magistrate Baddi on 27.01.2022, in proof of his presence there. The respondent replied the above notice through notice dated 16.01.2022.
I have considered the arguments of the counsel for the parties and examined the record. So far as the orders dated 29.07.2019, and 14.10.2019, holding the appellant as guilty for non-compliance of order dated 25.04.2017 and awarding sentence in Execution Application No.2 of 2017 are concerned, these orders were passed in exercise of powers under Section-27 of Consumer Protection Act, 1986. The power conferred under Section-27 is of the nature of civil contempt. Sole purpose of power of civil contempt is to enforce the order i.e. in present case, the order dated 25.04.2017, passed in CC/14/2015. The respondent filed Execution Application No.7 of 2019, for executing the order dated 25.04.2017. In Execution Application No.7 of 2019, the matter was settled on 20.03.2020 (20.03.2021) between the parties and Execution Application No.7 of 2019 has been decided in terms of settlement by order dated 22.03.2021. In view of subsequent settlement between the parties, it cannot be said the appellant is still violating the order dated 25.04.2017. The orders dated 29.07.2019, and 14.10.2019 have lost its relevance and are liable to be set aside.
State Commission, in the order dated 25.04.2017 directed the appellant to pay rental charges at the rate of Rs.10500/- w.e.f. 02.05.2012 till the date of possession, although assurance of rental was given for three years, by letting out the flat. In the settlement deed dated 20.03.2020 (20.03.2021) and registered deed dated 07/11.06.2021, nothing has been stated about the rental charges. As such, the order of State Commission dated 25.04.2017, which was not in terms of clause-41, has been superseded by the settlement deed dated 20.03.2020 (20.03.2021) by the parties. Clause-41 of the Apartment Buyer Agreement dated 02.11.2011 is quoted below:-
“41. That the owner has assured the Allottee rentals of Rs.10500/- per month, for a period of three years from the date of receipt of full and final payment (except the charges of registry to be born by the allottee) by leasing out the apartment to potential customers (subject to deductions as per applicable laws). The payment of Maintenance Charges shall be the responsibility of the date of offer of possession.”
Registered deed dated 07/11.06.2021 is in the nature of performance guarantee. According to the appellant, he has performed his obligation under the settlement dated 20.03.2020 (20.03.2021) and deed dated 07/11.06.2021. The respondent has to pay the charges of stamp duty, registration and other statutory deposit in terms of agreement and take possession. The appellant gave various notices to the respondent to take possession as per agreement dated 07/11.06.2021 but the respondent is avoiding to take possession. In such circumstances, performance guarantee as given under deed dated 07/11.06.2021 shall be treated as discharged.
According to settlement dated 20.03.2020 (20.03.2021) and deed 07/11.06.2021, the appellant assured to deliver possession over the Flat in dispute till 30.09.2021, complete in all respect. The appellant vide letter dated 27.09.2021, offered possession to the respondent. Service of letter dated 27.09.2021 has not been disputed rather the respondent disputes that the construction was not complete as per specification under clause-8 of the agreement and demand of money was not in terms of the order/agreement. The parties have agreed that performance under the settlement shall be monitored by State Commission. In such circumstance, the appellant is given liberty to move an application before State Commission for issue of Commission, to examine as to whether Flat -402 was completed as per specification under Clause-8 of the agreement dated 02.11.2011, which specifically provides for Air Conditioner fitting. If the construction is complete as per specification of Clause-8 of the agreement dated 02.11.2011, the respondent shall take possession of it according to the agreement dated 02.11.2011. Both the parties shall bear the expenses of the Commissioner in equal share. The respondent disputes about the demand made by the appellant. State Commission shall decide the genuineness of the demand and its amount, as per agreement dated 02.11.2011 and order of State Commission dated 25.04.2017.
ORDER
The appeal is allowed. The orders of State Commission dated 29.07.2019, and 14.10.2019 passed in Execution Application No.2 of 2017 are set aside. The appellant is given liberty to file an application in Execution Application No.7 of 2019 before State Commission, for issue of Commission, to examine as to whether Flat-402 was completed as per specification under Clause-8 of the agreement dated 02.11.2011, which specifically provide for Air Conditioner fitting. State Commission shall also decide the quantum of amount payable by the appellant/respondent in terms of agreement dated 02.11.2011 and order of State Commission dated 25.04.2017. If the construction is found complete as per specification of Clause-8 of the agreement dated 02.11.2011, the respondent shall deposit Stamp duty, registration charges and other statutory deposit/taxes as per agreement dated 02.11.2011 (after adjusting the amount payable by the appellant) within the time allowed by State Commission. On deposit of the amount the appellant shall execute conveyance deed and hand over possession of Flat No.-402 to the respondent.