Upendra Pratap Singh vs M/s Viraj Constructions Pvt. Ltd. & Anr

Subhash Chandra, Presiding Member

This appeal under section 21 (B) of the Consumer Protection Act, 1986 (in short, the ‘Act’) is directed against the order dated 17.12.2018 of the State Consumer Dispute Redressal Commission, Uttar Pradesh, Lucknow (in short, the ‘State Commission’) in complaint case no. 399/2016 partly allowing the complaint and directing the respondent/opposite party to

(i) complete the construction of the flat and hand over possession within 3 months of completion on payment of the balance amount with interest if any;

(ii) to execute the sale deed;

(iii)    failing which the respondent/opposite party will be liable to pay interest @ 9% on the amount paid to date at intervals of 3 months and

(iv)    pay litigation costs of Rs 10,000/- to the appellant/complainant.

This order is challenged by the appellant praying to:

i. set aside, modify or vary the impugned order and direct respondent to pay Rs 20,00,000/- as compensation for deficiency in service and Rs 5,00,000/- towards mental harassment;

ii. pay Rs 1,00,000/- towards litigation costs and

iii. award any other relief(s) deemed fit and proper.

Heard the learned counsels for the parties and perused the records.

The relevant facts of the case, in brief, are that the appellant was allotted Unit No. 1002, 10th Floor, Block Sunbreeze, Tower T 11, BBD Green City, Faizabad Road, Lucknow admeasuring 158.40 sq m on 12.10.2012 at a sale consideration of Rs 44,23,300/- to be paid as per a payment schedule. Possession was promised in 30 months from the date of allotment, i.e. by 12.04.2015. Respondent failed to provide possession inspite of deposits by the appellant with interest for delays in payments. Appellant filed a complaint (CC No. 399 of 2016) before the State Commission praying for handing over the finished flat immediately, Rs 20 lakhs compensation for deficiency in service with interest @ 24% p.a. from the date of possession, Rs 15,000/- per month towards rental expenses incurred and Rs 5 lakhs for mental harassment which came to be decided by way of the impugned order. A demand for Rs 8,60,356/- was issued by the respondent during the pendency of the complaint on 09.03.2018 and Rs 8,46857/- was deposited on 10.04.2018 by the appellant. Appellant submits that he was made to sign papers which included, without his knowledge, a letter waiving claims for interest and compensation, etc which was filed before the State Commission. The appellant contends that the impugned order erred in relying on this undertaking. The order of the State Commission is assailed on the grounds that (i) respondent had admitted delay in execution of the project and had not handed over possession within the time of 30 months as promised; (ii) appellant had paid interest on delayed payments and was therefore not a defaulter; (iii) the State Commission failed to appreciate that the purpose of the Consumer Protection Act was to safeguard the interest of the consumer and that being a consumer; (iv) the order was not a judicious and reasoned order as it did not award compensation for delayed possession; and (v) the respondent had waived interest of Rs 20,138/- vide its letter dated 09.04.2018.

Per contra, learned counsel for the respondent submitted that the appeal was an abuse of the process of law since the flat in question had already been sold by the appellant to a Third Party. It was submitted that the appellant had failed to disclose the Completion Certificate of the project was granted by the Lucknow Development Authority on 26.11.2018 and that in pursuance of the order dated 17.12.2018 of the State Commission in CC No. 399/2016 the respondent issued a letter dated 20.02.2019 to the appellant requesting payment of the outstanding amount and to take possession. The cost of Rs 10,000/- imposed was also paid vide Demand Draft No. 990427 on 20.02.2019. The appellant had taken possession of the flat and a Sale Deed had been executed. Thereafter, the appellant transferred his rights and title to one Madan Mohan Tandon and Harshit Tandon vide sale deed dated 08.10.2021 for a sale consideration of Rs 73,00,000/-. Therefore, there was no cause of action surviving. The respondent contends that all issues between the parties stood resolved at the time of the final payment and execution of the sale deed and that this appeal is without merits or basis.

The appellant did not contest that he had taken possession of the flat and that a sale deed was indeed executed between the parties. His case is that the State Commission erred in not awarding him compensation for delayed possession which was admitted by the respondent.

From the foregoing, it is evident that the State Commission did not return a finding of deficiency in service. In view of the appellant’s prayer for possession with compensation, the impugned order directed handing over of possession within 3 months failing which certain terms were imposed. In view of the appellant’s undertaking to waive off claims while taking possession, which is not disputed, the State Commission did not delve into the realm of deficiency in service and consequential compensation. The impugned order cannot be faulted for this in view of the appellant having waived his claims on this issue, especially since the respondent also offered a waiver of interest on the final instalment due. Moreover, upon being specifically queried, the appellant admitted to having sold the flat as submitted by the respondent. The appellant, therefore, has no right or interest in the said property which now stands in the name of the new owner. Having also relinquished his rights through sale of the flat, the appellant’s case has no legs to stand and must necessarily be dismissed as without merits. We, however, refrain from imposing costs on him.

In view of the foregoing, and in the facts and circumstances of this case, the appeal is dismissed without merits. There shall be no order as to costs. Pending IAs, if any, stand disposed of with this order.