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Judgment
Ram Surat Ram (Maurya), J, Presiding Member`
Heard Ms. Deeplaxmi Deshmukh, Advocate for the Appellant and Mr. Vibhor Garg, Advocate for Respondent No.1.
Above appeal has been filed against the order of State Consumer Disputes Redressal Commission, Maharashtra, Mumbai dated 05.05.2016 passed in CC/268/2014.
Mr. Chander Mohan Bhatnagar, Respondent No.1, filed CC/14/268 for directing the Opposite Parties (i) to execute the agreement for sale with the Complainant for flat no.805, 8th floor, B-Wing, Srushti Parivar, Building No.92, 13th Raod, Tilak Nagar, Chembur, Mumbai-400071 (ii) hand over possession of flat no. 805 to the Complainant (iii) pay delay compensation in the form of interest @ 24% per annum for the delayed period of handing over possession (iv) pay exemplary cost of Rs.5 lacs for mental agony and harassment (v) pay Rs.50,000/- as litigation cost (vi) and any other relief which is deemed fit and proper in the fact of the case.
The Complainant stated that M/s Shrushti Raj Enterprises (India) Ltd. the Opposite Party and Ors. were engaged in development and Construction of group housing project. The Opposite Parties launched a group housing project in the name of “Shrushti Raj Tower” at khardev Nagar, opposite to N. G. Acharya Marg, Chembur, Mumbai-400071. On coming to know about the aforesaid project, the Complainant booked a flat and deposited Rs.20 lacs with the Opposite Parties on 01.11.2006. The Opposite Parties executed a Memorandum of Understanding dated 01.11.2006, whereby they had allotted flat no.1402 admeasuring 1461 sq. ft. super built up area in A Wing of the building for total sale consideration of Rs.43,83,000/-. The balance amount of Rs.23,83,000/- was payable as per schedule mentioned in the Memorandum of Understanding. However, for a quite long time the project was not progressed and Opposite Party No.1 and 3 informed the Complainant in July 2007 that the work of the said building would take long time to complete and advise the Complainant to get another flat in another building, if he wants to take early possession. Since, the Complainant was in need of residential accommodation, he agreed for the offer of the Opposite Parties and Opposite Parties issued an allotment letter dated 21.07.2007 of flat no.805, 8th floor, B-Wing, Srushti Parivar, Building No.92, 13th Raod, Tilak Nagar, Chembur, Mumbai-400071. After 21.07.2007, the Complainant visited the Opposite Parties on several occasion and requested them to execute an agreement for sale of flat no.805, 8th floor, B-Wing, Srushti Parivar, Building No.92, 13th Raod, Tilak Nagar, Chembur, Mumbai-400071, as per provision of MOFA, but, the Opposite Parties had not executed any agreement. Although, the Opposite Parties had assured for early possession of the building, but, neither possession was handed over nor agreement was executed. The Complainant then issued a legal notice dated 28.02.2014 for executing the agreement for sale and handing over possession, in spite of the service of the notice, the Opposite Parties did not respond then this complaint was filed.
The Appellants filed their written statement in the complaint, in which execution of Memorandum of Understanding dated 01.11.2006 and flat no.1402 and receiving of Rs.22 lacs has not been disputed, but, the Appellants took the plea that in view of allotment letter dated 21.07.2007 that Memorandum of understanding was no more enforceable. The Complainant has relinquished his right under the Memorandum of Understanding dated 01.11.2006. Since, there is no valid contract between the Complainant and Opposite Parties, therefore, the complaint is not maintainable nor any relief can be granted to the Complainant.
After hearing the Parties, the State Commission by the impugned order dated 05.05.2016, found that since the execution of Memorandum of Understanding dated 01.11.2006 and receiving of part of sale consideration of Rs.20 lacs have not been disputed and as the Opposite Parties have themselves issued the allotment letter dated 21.07.2007, therefore, they are bound to give possession of the aforesaid flat. Since, the Opposite Parties have failed to deliver possession within a reasonable time, therefore, they have committed deficiency in service and on this finding the complaint was allowed and following orders have been passed:-
“1) Consumer complaint is partly allowed.
2) The opponents are directed to execute an agreement of sale for the flat no.805, 8th floor, B Wing in Srushti Parivar, Building No.92, 13th road, Tilak Nagar, Chembur, Mumbai 400 071 within 15 days from the date of this order.
3) Complainant is hereby directed to pay a balance consideration of Rs.23,83,000/- to the opponents within one month from the date of this order.
4) Opponents are directed to hand over peaceful and vacant possession of the flat no.805 as described above with all amenities as promised within one month from the payment of balance consideration by the complainant.
5) Alternatively, if the opponents are unable to hand over the flat in question as described above, the opponents to hand over possession of a flat admeasuring 1461 sq.ft. super built up area from any other project of the opponents in the same locality.
6) Opponents do pay jointly and severally an amount of Rs.3 lacs towards compensation for mental pain and agony to the complainant.
7) Opponents do pay jointly and severally costs of Rs.30,000/- to the complainant and bear their own costs.
8) One set of the complaint compilation be retained and rest of the sets be returned to the complainant.
9) Copies of the order be furnished to the parties free of cost forthwith.”
The Counsel for the Appellants submits that so far as the direction no.5 of the State Commission is concerned, there is no prayer of the Complainant in this respect. She further submits that so far as flat no. 805 is concerned, since there was no agreement between the parties in respect of this flat. Therefore, the direction of the State Commission for handing over possession of flat no.805 and executing an agreement for sale in this respect is illegal. Flat no. 805 had already been sold by the Appellants. In view of the fact that Respondent No.1 did not make payment of balance sale consideration, therefore, it is not possible for the Appellants to hand over possession of flat no. 805.
In view of the fact that Respondent No.1 has agreed before this commission for refund of his money as the flat no.805 had already been sold by the Appellants on 29.04.2008 to the third party. This appeal was disposed of by the order dated 12.09.2017, directing the Appellants to refund the entire amount deposited by Respondent no.1 with interest @ 12% per annum within three months of the order. However, the Appellants have not complied with the order dated 12.09.2017 nor willing to comply the order, therefore, this commission by the order dated 03.01.2018 has recalled the order dated 12.09.2017.
We have considered the arguments of the Counsel for the Appellants. So far as, the argument that no prayer has been made in respect of alternate accommodation, therefore, direction for alternate accommodation was not in accordance with law is concerned, the direction for giving alternate accommodation is an alternative direction. If the Appellants comply with the main direction then no question arises for the Appellants for comply the alternative direction. It may be mentioned that alternative direction has been made only to give liberty to the Appellants either give the original flat no.805 or to give any alternative accommodation and there is no illegality in this respect. Therefore, the order cannot be said to be illegal on this ground.
So far as, the argument that the Appellants have already sold flat no.805 on 29.04.2008 to third party is concerned, this plea was not raised before the State Commission. Since this sale is subsequent to the allotment made to the Respondent No.1 on 21.07.2007 as such the Respondent No.1 has first charge over flat no.805.
The Counsel for the Appellants has relied upon the judgment of this commission in FA/94/2017 M/s Shree Ostwal Builders Ltd. And Ors. Vs. Subhash G. Master and Ors. decided on 20.03.2018 and CC/105/2013 Milan S/o Jitendra Shah Vs. M/s Mahindra Lifespace Developers Ltd. decided on 27.10.2020.
In these cases, after cancellation of the allotment, the builder has allotted the building to the third person. In the present case, there is nothing on record that the Appellants have ever cancelled the allotment of Respondent No.1 and therefore these case laws have no application.
So far as, the contention that the Respondent No.1 has not deposited the balance consideration is concerned, the Appellants have not placed on record any demand letter showing that at any point of time, balance amount was demanded by the Appellants from Respondent No.1. In the absence of any demand letter, Respondent No.1 cannot be held as a defaulter.
It is not disputed that the Appellants have realized Rs.20 lacs and executed Memorandum of Understanding on 01.11.2006, in respect of flat no.1402, in building Shrushti Raj Tower. Subsequently, the Appellants issued allotment letter dated 21.07.2007, in respect of flat no.805, 8th floor, B-Wing, Srushti Parivar, Building No.92, 13th Raod, Tilak Nagar, Chembur, Mumbai-400071, therefore, the allotment of flat and realization of Rs.20 lacs, out of total sale consideration Rs.43,83,000/- as on 01.11.2006 has not been disputed. From the conduct of the Appellants, it is fully proved that Appellants are not willing to refund the money of the Respondent No.1, the order of State Commission to hand over possession in performance of his obligation of the flat allotted by the Appellants does not suffer from any illegality.
Order
The appeal has no merit. It is dismissed with cost of Rs.1 lakh payable to Respondent No.1, who may realize the cost in execution of the decree.