AI Structured Summary
Not yet generated for this judgment
Judgment
Heard Dr. Harsh Surana, Advocate and Mr. Rudresh Kumar, Advocate, for the appellants and Ms. Rumana Bagdadi, Advocate, for the respondents, in both the appeals.
Siddhivinayak Builders (the opposite party) has filed FA/40/2017 against order of State Consumer Disputes Redressal Commission, Maharashtra, dated 08.01.2016, passed in Consumer Complaint No.220 of 2013, allowing the complaint with cost of Rs.30000/- and directing the appellant to pay Rs.1300000/- with interest @18% per annum from 20.06.2013 to the complainants within one month, with default clause.
Jyotsna Nitin Mehta, wife of Nitin Mehta, Proprietor of Siddhivinayak Builders has filed AE/55/2019 against the order of State Consumer Disputes Redressal Commission, Maharashtra, dated 24.10.2018, passed in EA/67/2016 in Consumer Complaint No.220 of 2013, whereby in execution of decree dated 08.01.2016, residential flat situated at Nirmal Bunglow, 2nd Floor, Plot No.42, Jai Hind Society, JVPD Road 10, Mumbai-400049, has been directed to be attached, locked and sealed till the satisfaction of the decree dated 08.01.2016 and order dated 23.04.2019, passed in MA/509/2018, rejecting intervention application of Jyotsna Nitin Mehta.
The office has submitted report that FA/40/2017 has been filed with delay of 303 days. Impugned order was passed on 08.01.2016 and the appeal was filed on 06.01.2017. The appellant has filed IA/1056/2017, for condoning delay in filing the appeal. The appellant has stated that certified copy of the order dated 08.01.2016 was sent to the appellant on 08.02.2016 through post on its old address. As the office of the appellant was changed as such this copy was not received by the appellant. The appellant came to know about the order on 15.03.2016. Nitin Mehta, the proprietor of the appellant had to go to Gujarat for attending wedding ceremonies of his niece during 16.04.2016 to 28.04.2016, where he fell ill and could recover in last week of May, 2016. The office of the appellant was shifted during March, 2016 to May, 2016 and it had become difficult to trace the papers relating to the present case. After tracing the papers, the appellant contacted with his advocate, who obtained a fresh certified copy of the order on 02.01.2017. Then the appeal was drafted and filed on 06.01.2017. Supreme Court in Brahmpal Vs. National Insurance Company, (2021) 6 SCC 512, held that in delay condonation matter liberal view is required to be taken in order to prevent miscarriage of justice. In the interest of justice, we condone the delay in filing FA/40/2017 and heard on merit.
The office has submitted report that AE/55/2019 has been filed with delay of 36 days. Impugned order was passed on 23.04.2019 and the appeal was filed on 05.07.2019. The appellant has filed IA/10668/2019, for condoning delay in filing the appeal. The appellant has stated that certified copy of the order dated 23.04.2019 was received by the appellant on 30.04.2019. The appellant challenged the impugned order in Writ Petition (S.T.) No.13632 of 2019, before Bombay High Court, which was dismissed vide order dated 18.06.2019, with liberty to file appeal. Then the appeal was drafted and filed on 05.07.2019. In the interest of justice we condone the delay in filing AE/55/2019 and heard on merit.
Jyotsna Pravin Shah and Nisha Amish Shah (the respondents) filed CC/220/2013, for directing Siddhivinayak Builders (the appellant) to (i) handover possession of Flat No. C-502, built up area 575 sq.ft. in the building “Jupiter”, Borivali (W), Mumbai or in alternative pay Rs.7850000/- with interest @18% per annum from date of filing of the complaint till payment; (ii) Rs.50000/-, as litigation costs; and (iii) any other relief, which is deemed fit and proper in the facts of the case. The complainants stated that Siddhivinayak Builders was a proprietorship concern and engaged in the business of development and construction of group housing project. The opposite party launched a group housing project in the name of “Jupiter”, at Borivali (W), Mumbai, in the year 1995. The complainants booked a flat on 26.01.1995 and deposited booking amount of Rs.25000/- through cheque and Rs.474000/- in cash. The opposite party allotted Flat No. C-502, built up area 575 in the said building “Jupiter”. As per demand, the complainants further deposited Rs.225000/- till 15.12.2000 through cheques time to time. The opposite party avoided to execute an agreement for sale for one or other pretext. The complainants came to know that the opposite party had inducted a third person in Flat No. C-502. The complainants started writing letters to the opposite party to give possession of the flat or to return their money. The opposite party, vide letter dated 24.08.2007, informed that their allotment had been cancelled and Rs.25000/- would be returned to them. Nitin Mehta, the proprietor had cheated other buyers also, who had filed criminal complaint against him, in which, he was arrested, in December, 2011. Rohan Mehta son of Nitin Mehta wrote a letter dated 20.12.2011 stating that he would return Rs.1500000/- to the complainants in instalment and returned Rs.200000/- in cash on 02.01.2012. The opposite party wrote a letter dated 10.02.2012, stating that as his account had been frozen as such he was not in position to give next instalment. The complainants wrote letters for making payment of balance amount but it were not responded. Then, the complaint was filed on 20.06.2013.
Siddhivinayak Builders (the appellant) filed its written reply and contested the complaint. The appellant stated that the complaint had been filed for refund of settlement amount, which was a civil dispute and consumer complaint was not maintainable. The flat allotted to the complainants had been cancelled on 24.08.2007 and thereafter, they settled their dispute for refund of the money on 20.12.2011 and accepted Rs.200000/- on 02.01.2012. The opposite party sold the flat allotted to the complainants, after cancellation of their allotment. The complaint was time barred. The complainants were investors and not consumers.
State Commission, in the impugned order dated 08.01.2016 found that the complainants have claimed for possession, which was a continuous cause of action. Even after alleged cancellation of the allotment, the money of the complainants had not been refunded as such the dispute between the parties is a consumer dispute as defined under Section 2(1)(e) of the Consumer Protection Act, 1986. In spite of allotment of the flat on 25.04.1995 and realizing sale consideration, the opposite party failed to handover possession and committed deficiency in service. As the parties agreed for refund of Rs.15000000/- on 20.12.2011 as such the opposite party is liable to refund balance amount. On these finding the complaint was allowed and the order as stated above has been passed. Hence FA/40/2017 has been filed.
We have considered the arguments of the counsel for the parties and examined the record. The appellant was developer and allotted Flat No. C-502 to the respondents in its under construction building “Jupiter” and taken total Rs.250000/- through cheque and Rs.474000/- in cash (as alleged by the respondents). Building construction is service as defined under Section 2(1)(o) of Consumer Protection Act, 1986. Relation between the appellant and the respondents is of service provider and the consumer and falls within purview of consumer dispute as defined under the Act. Only for the reasons that the respondents had agreed for refund of their money, the nature of dispute will not be changed till the entire agreed amount is refunded to the respondents. The appellant has failed to allege and prove that the respondents were doing business of purchasing and selling the flats as such, its allegation that the respondents were investors is not liable to be accepted. So far as limitation is concerned, the respondents claimed for possession as according to them they had paid full consideration till 2000. Denial of possession was continuing cause of action. As such there is no merit in this appeal. However, State Commission has awarded interest @18% per annum and @24% per annum in case of default in payment within one month, which is on higher side. Supreme Court in Experion Developers (private Limited Vs. Sushma Ashok Shiroor, 2022 SCC OnLine SC 416, held that in case of refund, 9% interest is just compensation, which amounts to restitutory and compensatory both.
So far as AE/55/2019, is concerned, the appellant submitted that residential flat situated at Nirmal Bunglow, 2nd Floor, Plot No.42, Jai Hind Society, JVPD Road 10, Mumbai-400049 was jointly acquired by Nitin Mehta and Jyotsana Nitin Mehta through the deed dated 22.09.1993, in which, Nitin Mehta has 25% share and Jyotsana Nitin Mehta has 75% share. Entire family is residing in it. This property cannot be attached and sold in execution of the decree against Nitin Mehta, who had only 25% share. The order of State Commission dated 24.10.2018, passed in EA/67/2016 in Consumer Complaint No.220 of 2013, whereby in execution of decree dated 08.01.2016, above residential flat has been directed to be attached, locked and sealed till the satisfaction of the decree dated 08.01.2016 is illegal and liable to be set aside.
Section 60 of Civil Procedure Code, 1908 authorises for attachment and sale of residential house or other building, in which the judgment debtor has a disposing power. Amendment to Section 60 of Civil Procedure Code, 1908 as made by State of Maharashtra does not affect main provision in respect of residential house. Nitin Mehta (the judgment debtor) has right to dispose of his share in his residential house. Therefore, this flat can be attached and sold. In case of sale, Jyotsana Nitin Mehta will have preferential right to purchase his share. Attachment by State Commission does not suffer from any illegality.
ORDER
In view of the aforesaid discussions, First Appeal No.40 of 2017 is partly allowed and order of State Commission dated 08.01.2016, passed in Consumer Complaint No.220 of 2013, is modified in respect of interest only and the appellant is permitted to pay Rs.1300000/- with @9% per annum from 20.06.2013 to the complainants within two months from the date of the judgment, failing to comply with the above order interest would be payable @12% per annum.
Appeal Execution No.55 of 2019 is dismissed.