M/S Siddhyvinayak Infrastructure vs Kamalakar Jayant Srivastava

CIVIL APPEAL NO. 5208 OF 2022 (Arising out of S.L.P. (C) No. 11938 of 2021)

M/S SIDDHYVINAYAK INFRASTRUCTURE ….APPELLANT (S)

VERSUS

KAMALAKAR JAYANT SRIVASTAVA & ANR. ….RESPONDENT (S)

JUDGMENT

J.B. PARDIWALA, J.

1. The respondents, although served with the notice issued by

this Court, yet have chosen not to remain present before this Court

either in person or through an advocate and oppose this appeal.

2. This appeal is at the instance of the original complainant

before the District Consumer Disputes Redressal Forum, Nagpur

(for short, ‘the District Forum’) and is directed against the judgment Signature Not Verified Digitally signed by Jatinder Kaur

and order passed by the National Consumer Disputes Redressal Date: 2022.08.12 17:14:24 IST Reason:

Commission, New Delhi (for short, ‘the National Consumer

1 Commission) dated 12th December, 2019 in the Revision Petition

No. 1185 of 2015 by which the National Consumer Commission

disposed of the Revision Petition filed by the appellant herein

against the order passed by the District Forum, Nagpur.

FACTUAL MATRIX

3. The respondent no. 1 herein is the Original Complainant. He

lodged a complaint under Section 12 of the Consumer Protection

Act, 1986 before the District Forum at Nagpur which came to be

registered as the Consumer Complaint No. 305 of 2008.

4. The case of the respondent no. 1 before the District Forum

was that the complainant and the appellant herein entered into a

contract in connection with the purchase of a Twin Bungalow

admeasuring 900 sq. ft. of super built up area situated at the Plot

No. 132 at Tahsil and District ­ Nagpur.

5. It appears from the materials on record that the appellant

herein is a developer. The complainant entered into an agreement

dated 08.06.2006 with the appellant herein for the purchase of the

bungalow in question for a total sale consideration of Rs.

9,74,000/­ (Rupees Nine Lakh Seventy Four Thousand only).

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6. The understanding between the parties was that the

complainant would pay an amount of Rs. 4,23,520/­ (Rupees Four

Lakh Twenty Three Thousand Five Hundred Twenty only) in cash to

the appellant herein and the balance amount of Rs. 5,50,520/­

(Rupees Five Lakh Fifty Thousand Five Hundred Twenty only) would

be paid to the appellant herein after the complainant would get the

loan disbursed in his favour from the respondent no. 2, the bank

herein.

7. It appears from the materials on record that the bank

sanctioned the loan of Rs. 6,40,000/­ (Rupees Six Lakh Forty

Thousand only) in favour of the complainant on 24.11.2006 but the

same never came to be actually disbursed in favour of the

complainant.

8. In the aforesaid context, disputes cropped up between the

parties. In such circumstances, the complainant thought fit to file a

complaint before the District Forum at Nagpur. Before the District

Forum, the appellant herein admitted that it had entered into an

agreement with the complainant for sale of the house in question.

The appellant also admitted that the total sale consideration as

fixed was at Rs. 9,74,000/­ (Rupees Nine Lakh Seventy Four

3 Thousand only). However, the appellant herein disputed having

received an amount of Rs. 4,23,520/­ (Rupees Four Lakh Twenty

Three Thousand Five Hundred Twenty only) from the complainant.

9. The stance of the bank before the District Forum was that the

home loan of Rs. 6,40,000/­ (Rupees Six Lakh Forty Thousand

only) was sanctioned in favour of the complainant and his wife on

24.11.2006. The bank called upon the complainant and his wife to

submit the necessary documents regarding the property. However,

the relevant documents were not furnished and, in such

circumstances, the loan amount could not be actually disbursed in

favour of the complainant and his wife.

10. The complaint was ultimately adjudicated by the District

Forum and the same came to be partly allowed in the following

terms:

“1. The complaint of the Complainant is partly allowed.

2. The Non­application No. 1 is directed that he should complete the construction of the house (semi­detached bungalow) having a built­up area of 900 Sq. ft. on Plot No. 132, P.H. No. 38, Khasra No. 39/1, 39/2 and 39/3 having total area of 2101 Sq. feet, in Ghogal Layout, as per the agreement and hand over its possession to the Complainant and execute a Sale deed of the said house in favour of the Complainant. The Complainant should bear the expenses to be incurred on Sale deed of the said house.

4 3. The Non­applicant No. 1 is directed that he should give the sum of Rs. 30,000/­ to the Complainant as compensation towards physical and mental harassment the Complainant suffered on account of failing to complete the construction of the house and deliver its possession and on account of adopting an unfair trade practice.

4. The Non­applicant No. 1 directed that he should give to the Complainant compensation at Rs. 300/­ in accordance with Condition No. 23 in the Agreement to Sell, from 01/01/2008 till receiving the possession of the house.

5. The Non­applicant No. 1 is directed that he should give Rs. 5,000/­ to the Complainant towards cost of the present complaint.

6. The present complaint is dismissed against the Non­ application No. 2.

7. The Non­applicant No. 1 should comply with the above orders within a period of 30 days from the receipt of the copy of order.”

Thus, from the aforesaid, it appears that the appellant herein

was directed by the District Forum to complete the construction of

the Twin Bungalow in accordance with the agreement and hand

over its possession to the complainant upon execution of the sale

deed in accordance with the terms of the contract.

11. The appellant herein being dissatisfied with the order passed

by the District Forum, Nagpur referred to above challenged the

same before the National Consumer Commission, New Delhi by

5 filing the Revision Petition No. 1185 of 2015. The National

Consumer Commission disposed of the Revision Petition in the

following terms:

“5. The Learned Counsel appearing for the Developer sub­ mitted that the Agreement to Sell was entered into on 08­ 06­2006 but the loan was sanctioned only on 24­11­2007 and for the fault of the Complainant, the Developer cannot be made to wait indefinitely and that the State Commis­ sion has erred in coming to the conclusion that there was deficiency in service on behalf of the Developer.

6. He also drew our attention to the order dated 30­06­ 2015 passed by this Commission whereby the operation of the impugned order was stayed subject to the Developer depositing a sum of Rs.3,24,780/­ with interest at the rate of 12% per annum from the respective dates of deposit.

Keeping in view that admittedly the Agreement to Sell was entered into on 08­06­2006 and the loan was sanctioned only on 24­11­2007 and two notices were issued by the Developer on 21­07­2007 and on 08­01­2008, we are of the considered view that the Complainant had failed to ad­ here to the payment schedule as per the Agreement to Sell and did not pay the entire amount of Rs.9,74,000/­. We find force in the contention of the Learned Counsel appear­ ing for the Revision Petitioner that the Developer cannot be made to obtain the loan amount from the Bank and it is the practice of the Bank to gather all the relevant docu­ ments including salary certificate and Income Tax Returns before using its discretion to disburse the loan. If the Com­ plainant had failed to furnish any documents to the Bank which delayed the sanctioning of the home loan, the Devel­ oper cannot be made responsible. It is submitted that after the passing of the impugned order, a notification was is­ sued by Collector, Nagpur on 03­02­2015 restraining all

6 Sub­Registrars not to register the documents in absence of the permissions/sanctions and, therefore, today it is not possible to comply with the directions issued by the State Commission to register the sale deed.

7. On a pointed query from the Bench with respect to the Occupation Certificate, the Learned Counsel for the Pe­ titioner submitted that earlier the apartment was under

the territorial jurisdiction of Gram Panchayat but now it has come under the jurisdiction of Municipal Corporation and getting the Occupation Certificate of the apartment in question will take time and in the absence of the Occupa­ tion Certificate, the Sale Deed cannot be registered. How­ ever, the Learned Counsel for the Complainant/Respon­ dent, on instructions received, submitted that the Com­ plainant/Respondent is prepared to take possession of the apartment in question and the Sale Deed, etc., be regis­ tered only after the Occupation Certificate is issued by the competent authority. The statement given by the Learned Counsel for the Respondent appears to be bonafide and would serve the interests of justice, we, therefore, modify the orders of both the fora below with the following direc­ tions:

(i) The Petitioner shall provide the peaceful and vacant possession of the house complete in all respects to the Complainant/Respondent No.1 within one month and exe­ cute the Sale Deed after getting the Occupation Certificate for which he will take immediate steps;

(ii) the Complainant shall pay the balance sale consid­ eration of Rs.6,49,220/­ within four weeks from the date of receipt of a copy of this order directly to the Developer.

Needless to add, the stamp duty and taxes due and payable shall be borne by the Complainant;

All the directions given by the District Forum and the State Commission stand modified to the extent indicated

7 above. Any deposit made by the Developer in compliance of the order dated 30­06­2015 passed by this Commission shall stand refunded by the concerned District Forum along with interest accrued to the Developer.”

Thus, the National Consumer Commission directed the

appellant herein to hand over the peaceful and vacant possession of

the house complete in all respects to the complainant within one

month from the date of the order and execute the Sale Deed after

obtaining the Occupation Certificate.

12. However, while issuing such directions to the appellant herein,

the National Consumer Commission also directed the complainant

to pay the balance sale consideration of Rs. 6,49,220/­ (Rupees Six

Lakh Forty Nine Thousand Two Hundred Twenty only) within four

weeks from the date of receipt of the order directly to the appellant

herein. The National Consumer Commission accordingly modified

the order passed by the District Forum.

13. The appellant being dissatisfied with the impugned order

passed by the National Consumer Commission is here before this

Court with the present appeal.

14. We have heard Mr. Vinay Navare, the learned Senior Counsel

appearing for the appellant herein. We are of the view that it is not

8 necessary for us to adjudicate the legality or validity of the

impugned order passed by the National Consumer Commission

having regard to the peculiar facts and circumstances of the

present litigation.

15. It is not in dispute that the Agreement for Sale was entered

into on 08.06.2006. The loan came to be sanctioned by the bank on

24.11.2006. It appears from the materials on record and also as

pointed out by the learned Senior Counsel appearing for the

appellant that the complainant did not even bother to go to the

bank and get the loan amount disbursed in his favour. Of course,

the case of the complainant as it appears from the materials on

record is that he was not able to get the loan amount disbursed in

his favour in the absence of documents which the appellant herein

failed to supply to the complainant.

16. We take notice of the fact that the National Consumer

Commission had stayed the order passed by the District Forum

from its operation pending the final disposal of the Revision

Application on the condition that the appellant herein deposits the

sum of Rs. 3,24,780/­ (Rupees Three Lakh Twenty Four Thousand

Seven Hundred Eighty only) with interest at the rate of 12 per cent

9 per annum from the respective dates of deposit.

17. It is not in dispute that the aforesaid amount came to be

deposited by the appellant. We are of the view that the ends of

justice would be met if we direct the appellant herein to refund the

amount of Rs. 3,24,780/­ (Rupees Three Lakh Twenty Four

Thousand Seven Hundred Eighty only) with interest at the rate of

12 per cent per annum to the original complainant and put an end

to the entire litigation.

18. We are saying as aforesaid keeping in mind, the following

relevant aspects of the matter:

a) The original agreement between the parties is of the year 2006.

b) In accordance with the terms of the agreement for sale, both

the parties were obliged to perform their part of the contract.

c) It is not in dispute that the complainant failed to make the

entire payment towards the purchase of the bungalow to the

appellant herein in accordance with the terms of the contract.

d) Although, the loan came to be sanctioned by the bank in

November, 2006 yet no further steps were taken by the

10 complainant to ensure that the amount sanctioned by the

bank is directly paid to the appellant herein.

e) Almost 16 years have elapsed since the parties entered into

the contract.

f) We are of the view that it will be too much at this point of time

i.e. after a period of almost 16 years to ask the appellant

herein to execute the sale deed by accepting the balance

consideration of Rs. 6,49,220/­ (Rupees Six Lakh Forty Nine

Thousand Two Hundred Twenty only).

g) It appears that the complainant is also not interested in abid­

ing by the directions issued by the National Consumer Com­

mission.

h) The impugned order passed by the National Consumer Com­

mission is dated 12th December, 2019. Till this date, the com­

plainant has not come forward to pay the balance sale consid­

eration of Rs. 6,49,220/­ (Rupees Six Lakh Forty Nine Thou­

sand Two Hundred Twenty only) to the appellant.

11 i) The complainant thought fit not to even appear before this

Court and oppose this Appeal.

19. In such circumstances, referred to above, we dispose of

this appeal in the following terms:

(i) The impugned order passed by the National

Consumer Commission dated 12th December, 2019

is hereby modified to the extent that the appellant

herein shall pay the amount of Rs. 3,24,780/­

(Rupees Three Lakh Twenty Four Thousand Seven

Hundred Eighty only) to the original complainant

with interest at the rate of 12 per cent per annum

from the date of the Agreement for Sale i.e.

08.06.2006.

(ii) Once the aforesaid amount is paid, there shall be

no further liability of the appellant herein in any

respect so far as the property in question is

concerned.

(iii) The amount of Rs. 3,24,780/­ (Rupees Three Lakh

Twenty Four Thousand Seven Hundred Eighty

only) with interest at the rate of 12 per cent per

12 annum from the date of the agreement shall be

paid to the complainant within the period of four

weeks from today.

20. As the amount of Rs. 3,24,780/­ (Rupees Three Lakh Twenty

Four Thousand Seven Hundred Eighty only) with interest at the rate

of 12 per cent per annum has been deposited by the appellant with

the National Consumer Commission with interest, it shall be open

to the appellant to seek refund of the same so as to pay the entire

amount to the complainant with the interest accrued upon it.

21. With the aforesaid, this appeal stands disposed of with no

order as to costs.

22. Pending application(s), if any, also stands disposed of.

……………………………………..J. (DR. D.Y. CHANDRACHUD)

…………………………………….J. (J.B. PARDIWALA)

NEW DELHI;

AUGUST 12, 2022

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