M/s Jai Maa Infratech Pvt. Ltd vs Charu Chhabra & 2 Ors

Heard Mr. Charan Singh, Advocate for the appellant and Mr. Praful Sinha, Advocate for Respondent-1.

Aforementioned appeal has been filed from the order of State Consumer Disputes Redressal Commission, Delhi dated 12.02.2021 passed in Complaint Case No.890 of 2015, whereby, the complaint has been allowed and the opposite party (the appellant/builder) has been directed to hand over possession of the flat in dispute, complete in all respect, and pay delayed compensation in the shape of interest @9% per annum with effect from the date of deposit till the date of delivery of possession and the litigation charges of Rs.30000/-.

Smt. Charu Chhabra, (respondent-1) filed CC/890/2015 for directing (i) M/s. Jai Maa Infratech Pvt. Ltd. (the builder) to hand over possession of the flat in dispute to the complainant; (ii) to deposit the requisite transfer fee of the said property as the compensation for causing mental agony and physical harassment; (iii) to award the cost of the litigation and (iv) any other relief, which may be deemed fit and proper, in the facts and circumstances of the case.

The complainant stated that M/s. Jai Maa Infratech Pvt. Ltd. (the builder) was a company and engaged in development and construction of residential and commercial building and selling its unit to the prospective buyers. In the year 2010, the builder launched a group housing project, in the name of “Celestial Comfort Condominium”, at GH-27, Sector-4, Vaishali, Ghaziabad. On coming to know about the project one Smt. Madhu Jindal (respondent-2) applied for allotment of flat and deposited allotment money on 25.07.2010. The builder allotted Unit No.1202 super area 1250 sq.ft. to Smt. Madhu Jindal on 01.08.2010 and executed Buyer’s Agreement dated 31.10.2010 in respect of Unit No.1202 aforesaid, total sale price Rs.4200000/- (inclusive one covered parking, power back up, 3 KV, external development charges, internal development charges, interest bears security charges, club charges etc.). As per Buyers’ Agreement, possession has to be handed over within ten months. Smt. Madhu Jindal proposed to sell the aforesaid unit to the complainant Smt. Charu Chhabra. Firstly agreement to sell dated 14.08.2011 was executed between the parties, in which, it was mentioned that the sale consideration would be Rs.5600000/-. Out of which Rs.560000/- was paid on 14.08.2011 to Smt. Madhu Jindal, through cheque and remaining sale consideration had to be paid at the time of sale deed, which had to be executed on or before 14.09.2011. Later on second agreement to sell dated 19.08.2011 was executed between Smt. Madhu Jindal and Smt. Charu Chhabra. Under which, it was mentioned that total sale consideration was Rs.3300000/-. Out of which Smt. Madhu Jindal had received Rs.2500000/- and balance Rs.800000/- had to be paid to the builder at the time of possession. This agreement was executed with the previous approval of the builder and the builder has issued a “No Objection Certificate” also in this respect, in which, the builder acknowledged receiving Rs.24/- lacs from Madhu Jindal and balance Rs.8/- lacs had to be paid at the time of possession. Tentative date of possession has been mentioned as March, 2012. Sometime in June, 2012, the complainant came to know that ‘super area’ of the flat was enhanced by the builder from 1250 sq.ft. to 1835 sq.ft. and she had to pay extra amount for the increased area and 2 BHK flat, which was initially allotted to Smt. Madhu Jindal on 01.08.2010 was converted into a 3 BHK flat. The complainant, therefore, met with the builder and showed her inability to pay extra money and requested the builder to sell Flat No.1202 to any third party and return her money. Then, the builder agreed to return Rs.7000000/- within four months as it was thought that the flat would be sold to third party in the meantime. A separate agreement in this respect was executed between the builder and the complainant on 18.06.2012. After expiry of four months, the complainant asked the builder to return her money according to agreement dated 18.06.2012. However, the builder used to take time on the pretext that as soon as, any flat in the project is sold, her money would be returned. The complainant came to know that Flat No.501 in the said project was sold on 16.06.2014 then she met with builder on 11.08.2014 at the building of “Celestial Conform Condominium”. On that day the builder gave assurance to the complainant that her money will be paid till 01.09.2014. On 01.09.2014, the complainant along with her husband again went to the office of the builder then he told that Rs.2000000/- would be paid through demand draft and balance amount of Rs.5000000/- would be paid in cash till 30.09.2014. However, the builder failed to pay the money to the complainant till 30.09.2014. Then, complainant again met with the builder on 15.10.2014. On that day, he requested for three months’ time for making payment. He also assured that for the delayed period he will give interest @ 18% per annum. The builder has also paid Rs.150000/- as the amount of interest although the amount of interest was Rs.225000/-. The complainants again met the builder on 05.01.2015. On that day, the builder offered to pay a demand draft of Rs.2000000/- and cash of Rs.3500000/- as a full and final settlement, which was not accepted by the complainant. Thereafter, meetings were held on 17.02.2015 and 28.02.2015, but the matter could not be settled between the parties. The complainant gave an e-mail dated 15.03.2015 asking the builder to return the money according to the agreement dated 18.06.2012. In spite of service of e-mail, the builder has not returned the money. The complainant finally sent a legal notice on 20.03.2015 which has not been replied by the builder, then another legal notice was sent on 08.06.2015 to the builder either to make payment or hand over the possession of the said flat. Then the builder arranged a meeting, but no solution came out in the meeting. Initially the complainant filed Consumer Complaint No.353 of 2015 before this Commission. This Commission by order dated 26.05.2015 held that the valuation of the complaint was less than the pecuniary jurisdiction of this Commission and rejected it with liberty to file a complaint before State Commission. Thereafter the aforementioned complaint was filed on 05.09.2015.

Mr. Shokeen Ali, Advocate appeared before State Commission on behalf of the builder on 10.03.2016. He was granted 30 days time for filing written reply and the case was adjourned for 25.07.2016. The appellant did not file written reply as such by order dated 25.07.2016 right of the appellant to file written reply was closed and the complainant was directed to file Affidavit of Evidence and written arguments. On that day one Mr. Rupesh Sharma, Advocate, appeared as proxy counsel for the appellant. The complainant filed Affidavit of Evidence of Smt. Charu Chhabra and Affidavit of Evidence of Sanjeev Chhabra, her husband on 20.09.2016. Both the parties filed their written arguments. State Commission after hearing the parties by order dated 12.02.2021 allowed the complaint and passed the order mentioned above. Hence, this appeal has been filed.

We have considered the arguments of the counsel for the parties and examined the record. First argument has been raised that notice of the complaint was not served upon the appellant and State Commission has illegally closed the right to file written reply in the complaint and proceeded ex-parte. This argument is not liable to be accepted. The appellant, through Mr. Charan Singh, Advocate, filed its written reply along with delay condonation application on 29.11.2016. In paragraphs-3 and 4 of delay condonation application, they stated that opposite party came to know about the fact only when they received the written arguments and evidence affidavit from the complainant. The opposite party hired the services of the counsel, who informed that Hon’ble Commission has closed the rights of the opposite party to file written statement. From this statement, it is proved that the appellant has not denied engagement of counsel for appearing before State Commission. The appellant has not given any notice either to Mr. Shokeen Ali, Advocate or Mr. Rupesh Sharma, Advocate, asking them as to how they appeared on its behalf without any instruction. The appellant had knowledge of the complaint and their counsel also appeared before State Commission on 10.03.2016 and took time for filing written statement but written statement was not filed within time. State Commission has not committed any illegality in closing right to file written reply of the appellant.

Allotment of Flat No.1202 in “Celestial Comfort Condominium” to Smt. Madhu Jindal on 01.08.2010 and execution of Buyer’s Agreement dated 31.10.2010, in her favour are not disputed by the appellant. Smt. Madhu Jindal transferred the flat in dispute to Smt. Charu Chhabra (the complainant) vide agreements dated 14.08.2011 and 19.08.2011. The appellant gave “No Objection Certificate” in respect of aforesaid transfer. Supreme Court in M/s. Laureate Buildwell Pvt. Ltd. Vs. Charanjeet Singh, 2021 SCC OnLine SC 479, has held that a transferee stepped in the shoes of the transferor with same right and obligation as such whatever right has been conferred to Smt. Madhu Jindal vide allotment letter dated 01.08.2010 and Buyer Agreement dated 31.10.2010 stands transferred in favour of Smt. Charu Chhabara (respondent-1).

The terms of the agreements dated 14.08.2011 and 19.08.2011 in respect of the sale consideration are not binding upon the appellant. Sale consideration of the Flat No.1202 has to be decided according to allotment letter dated 01.08.2010 and Buyer’s Agreement dated 31.10.2010. Special Terms & Condition attached with allotment letter dated 01.08.2010 showed total cost of the flat as Rs.42/- lacs. In Buyers Agreement dated 31.10.2010 it was mentioned that super area of Flat No.1202 was 1250 sq.ft. and sale consideration would be at the rate of Rs.2560 per sq.ft. (i.e. total sale consideration was Rs.32/- lacs), which included PLC, car parking charges, IFMSD, Club Registration charges, Electric Fitting charges, power back-up charges etc. The appellant acknowledged receipt of Rs.24/- from Smt. Madhu Jindal and balance of Rs.800000/- was payable to the appellant at the time of possession. The complainant neither alleged in the complaint nor filed any evidence to prove that she had paid any amount to the appellant, after 19.08.2011. Balance sale price remained unpaid.

The complaint has been filed for the relief of possession, as such, it has to be examined as to whether she is entitled for this relief. In “No Objection Certificate”, the appellant endorsed tentative date of possession as March, 2012. The complainant in paragraph-7 onward of the complaint stated that sometime in June, 2012, she came to know that ‘super area’ of the flat was enhanced by the builder from 1250 sq.ft. to 1835 sq.ft. and she had to pay extra amount for the increased area and 2 BHK flat, which was initially allotted to Smt. Madhu Jindal on 01.08.2010 was converted into a 3 BHK flat. The complainant, therefore, met with the builder and showed her inability to pay extra money and requested the builder to sell Flat No.1202 to any third party and return her money. Then, the builder agreed to return Rs.7000000/- within four months as it was thought that the flat would be sold to third party in the meantime.

There is nothing on record that the builder issued any demand notice, demanding extra amount for the enhanced area. On own allegation of the complainant, in June, 2012, the building was nearing completion but she gave up her right of possession and started demanding for return of her money. She attempted for unjust enrichment, inasmuch as she paid Rs.25/- lacs to Smt. Madhu Jindal on 19.08.2011 and wanted return of Rs.70/- lacs on 18.06.2012. She also received Rs.1500000/- on 15.10.2014. From June 2012 to September, 2015, she made only effort for return of a highly inflated amount. Now after such a long time, State Commission, directed for delivery of possession without paying balance amount. State Commission has illegally failed to examine the fact, for the period of June, 2012 to September, 2015, the complaint forgave her right of possession. In the facts, the complainant was not entitled for compensation for delay in possession.

ORDER

In view of the aforesaid discussion, the appeal is partly allowed. The appellant is directed to issue a demand letter demanding balance amount in accordance with Buyer’s Agreement dated 31.10.2010 and offer possession within two months. On deposit of the amount, the appellant shall hand over possession of the flat to respondent-1 and execute the sale deed. The respondent-1 shall be given at least six weeks’ time to deposit the balance amount stamp and registration charges etc.