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Judgment
Heard Mr. Sanjiv Mahendru, the applicant/respondent-1 (in-person) and Ms. Shreya Sircar, Advocate, for the appellants.
The complainant-respondent has filed MA/380/2024 for setting aside final judgment dated 18.11.2021, passed in the appeal and subsequent orders passed in review application/miscellaneous application filed in it.
Sanjiv Mahendru filed CC/875/2015 for directing opposite parties-1 and 2 (the developer) to (i) handover possession of Unit No.B-II-5-004 i.e. east facing door, corner flat at ground floor of the building “New Haven”; (ii) pay Rs.20/- lacs, as the compensation for delay in delivery of possession, mental agony and harassment; (iii) pay Rs.2/- lacs, as litigation costs; and (iv) Any other relief, which is deemed fit and proper in the facts and circumstances of the case. The complainant stated that Tata Housing Development Company Limited (the developer) was a company, registered under the Companies Act, 1956 and engaged in the business of the development and construction of the group housing projects. The developer launched a group housing project in the name of “New Haven” at Village Betegaon, Taluka Palghar, District Thane, in the year 2009. The complainant applied for 3BHK small + car parking and gave preference for east facing door, ground floor and fencing park and deposited application money on 10.08.2009. The developer issued Allotment Letter dated 26.09.2009, allotting Apartment No.004, on the Ground Floor, Block No. B-II-5, in complex “New Haven”. Along with Allotment Letter, the developer attached a copy of building plan containing an endorsement as “3BHK Small. As per your preference, East facing door, correct flat, Ground floor, fencing park” and the flat allotted to the complainant was encircled in it. The parties entered into an agreement for sale dated 18.06.2010 of Flat No.004, Block No. B-II-5, in complex “New Haven” + car parking for total consideration of Rs.2225000/-. Along with the agreement a Photostat copies of the part sanctioned building plan and sketch map of Ground Floor Plan have been attached. In the sketch map four flats were shown and its number have also noted. Payment plan was time linked. The complainant took home loan from opposite party-3 and paid the consideration. Clause-13 of the agreement provides due date of possession as 30.12.2011. However, the construction was delayed and the developer handed over possession of the flat and parking on 19.08.2013 along with key of main door the flat. The complainant demanded for delay compensation, then the officers of the developer stated that the matter would be taken up with the senior officers. After taking possession, the complainant shifted his belonging including wall clock also held small function in Flat No.004. Thereafter, the flat was locked by the complainant. In early, 2014, one Ms. Chris Dmello, claiming herself as the representative of the developer, called the complainant and stated to return the key of the flat stating that possession over wrong flat was given to him. The complainant then contacted on toll free number of the developer and asked to give in writing in this respect. Then Ms. Chris Dmello gave an email dated 31.03.2014, attaching a copy of another email dated 30.12.2013, mentioning that relevant changes have been done on the site and the complainant was required to visit there. The complainant then visited number of times to Mumbai. On 15.07.2014, the complainant met with Mr. R. Poddar and Mr. Rajeev Ambekar, who stated that possession over wrong flat had been given to him. They asked to return the key or the lock would be broken or door panel itself would be changed. The complainant made complaint to higher officers of the developer through email dated 28.09.2014. The developer vide email dated 11.11.2014, informed that his grievances were not genuine. Ultimately the developer changed the lock of the flat of the complainant and locked it and thereby deprived the complainant from its possession.
State Commission, after hearing the parties, by judgment dated 14.02.2019, held that the developer in along with Allotment Letter dated 26.09.2009 attached building plan and endorsed on it as “3BHK Small. As per your preference, East facing door, correct flat, Ground floor, fencing park” which was encircled, in the copy of building plan and again acknowledged it in their email (filed on pg.306). They cannot change the flat of the complainant after handing over possession of it. On these findings, the complaint was allowed and the developer was directed to handover possession of the Flat No.004, east facing, corner flat on ground floor and pay delay compensation in the form of interest @9% per annum on the deposit of the complainant from 01.07.2012 till handing over possession and cost of Rs.25000/-. The developer filed above FA/411/2019, from the order State Commission. After hearing the arguments of the parties, judgment was reserved on 03.12.2020 and pronounced on 18.11.2021. This Commission in its judgment dated 18.11.2021 held that there is no mention about the direction/facing of the flat either in Allotment Letter or in Agreement For Sale. On these findings, order of State Commission has been modified and the developer was directed to handover possession of Flat No.004, Block No.B-II-5 and car parking No.619 in the complex “New haven” within two weeks and pay compensation from 01.07.2012 till the date of handing over possession. If this is not accepted then refund entire amount with interest @9% per annum. Respondent-1 filed RA/119/2021, which was dismissed vide order dated 23.12.2021. Respondent-1 filed S.L.P. (C) Nos.8059-8060 of 2021, which were dismissed vide order dated 11.07.2022. The appellants also filed RA/120/2021, which was allowed vide order dated 04.05.2023 and liability for paying delay compensation was limited from 01.07.2012 till 19.08.2013. Thereafter, respondent-1 filed MA/255/2023, for recalling the order dated 04.05.2023. This application was decided vide order dated 24.07.2023, holding that as in paragraph-19 of the judgment dated 18.11.2021, in has been held that the complainant had taken possession on 19.08.2013, as such, delay compensation was rightly limited till the date of taking possession.
Now respondent-1 has filed MA/380/2024 for recalling judgment dated 18.11.2021 and all subsequent orders passed in the appeal as mentioned above. The counsel for the appellants has raised an objection in respect of maintainability of this MA, on the ground that after the order dated 18.11.2021, respondent-1 filed RA/119/2021, which was dismissed vide order dated 23.12.2021. Respondent-1 filed S.L.P. (C) Nos.8059-8060 of 2021, which were dismissed vide order dated 11.07.2022. Therefore fresh application for review of the above orders is not maintainable. Orders dated 04.05.2023 and 24.07.2023 merely corrected errors in operative portion on the basis of findings recorded in judgment dated 18.11.2021.
We have considered the arguments of the counsel for the parties and examined the record. Under Section 22(2) of the Consumer Protection Act, 1986, this Commission has been assigned with power of review. By the judgment dated 18.11.2021, this Commission held that in there was no mention about the direction/ facing of the flat either in Allotment Letter or in Agreement For Sale and set aside findings of State Commission holding contrary to it. This Commission has failed to notice that along with Allotment Letter dated 26.09.2009, the developer has attached a copy of building plan (page 88 of the paper book of the appeal) containing an endorsement in handwriting as “3BHK Small. As per your preference, East facing door, correct flat, Ground floor, fencing park” and the flat allotted to the complainant was encircled in it. Floor Plan attached with Agreement For Sale dated 18.06.2010 (page 93 of the paper book of the appeal) showed four flats with marking as 1, 2, 3, 4. State Commission has noticed that the developer in their email (filed on pg.306) again acknowledged that as per preference, the flat of “East facing door, correct flat, Ground floor, fencing park” allotted to the complainant. It is well settled that it is duty of the first appellate court to consider the evidence and reasons recorded by the trial court before setting aside its finding. We find that in judgment dated 18.11.2021, an error apparent on face of record has been committed in as much as although building plan attached to the allotment letter was on record (on page 88 of the paper book of the appeal), but it was not noticed while reversing finding of State Commission. Without considering the material on record, findings of the State Commission has been reversed, which caused material injustice to the complainant-respondent. Being last forum in hierarchy and to prevent miscarriage of gross injustice to the consumer, judgment of this Commission dated 18.11.2021 and all other subsequent orders are to be set aside.
ORDER
In view of the aforesaid discussions, MA/380 of 2024 is allowed. The judgment dated 18.11.2021, passed in appeal, orders dated 23.12.2021, 04.05.2023 and 24.07.2023 passed in RA/119/2021, RA/120/2021 and MA/255/2023 respectively are set aside. List the appeal for final hearing before appropriate bench as per roster on 01.11.2024.
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