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Judgment
Both these appeals arise out of single order of State Commission; hence, decided by common order.
F.A. No. 353 of 2014 has been filed by OP and F.A. No. 361/2015 has been filed by complainant against the order dated 14.03.2014 passed by the State Consumer Disputes Redressal Commission, Gujarat (in short, ''the State Commission'') in Complt. No. CC/11/133 - Suresh Pandey & Anr. Vs. M/s. R.N.A. Builders (N.G.) by which, complaint was allowed.
Brief facts of the case are that Complainants booked a flat bearing no.503 on the 5 th floor of ''A'' building in project-N.G.Sterling, Next to Queen''s Merry High School, Golden Nest, Off.Mira Bhayander Road, Mira Road (East) with opponent builder/developer on 28/06/2009 for total consideration of Rs.24,11,500/-. Earnest money Rs.51,000/- was paid on 28/06/2009 and receipt to that effect was issued by the opponent. Remaining consideration was to be paid as per the development of the construction. They paid Rs.3,10,725/- from time to time. However, no construction was done by the opponent. On enquiry by the complainants, it was orally informed by the opponent to the complainants about cancellation of booking as amount was not paid as agreed though there was no progress of the work and there was no demand from the opponent about the further payment. A legal notice was issued by the complainants to the opponent. However, there was no reply. Alleging deficiency on the part of OP, complainants filed complaint before State Commission.
OP resisted complaint, admitted booking of the flat by complainant and receipt of payment as alleged by complainant in the complaint. It was further submitted that as complainant failed to pay remaining balance amount as per terms mentioned in the earnest money receipt, booking was cancelled. Denying any deficiency on their part, prayed for dismissal of complaint.
Learned State Commission after hearing both the parties, allowed complaint and directed OP to handover possession of disputed flat on receiving balance payment or in the alternate at the option of the complainant, OP was directed to refund deposited amount with 21% p.a. interest from the date of filing complaint along with cost of Rs.25,000/- against which, both parties preferred appeals and complainant also filed application for condonation of delay.
Heard learned Counsel for the parties finally at admission stage and perused record.
Learned Counsel for OP submitted that as complainant failed to make payment in time, booking of flat was cancelled and after that complainant did not fall within purview of consumer; even then, learned State Commission committed error in allowing complaint. It was further argued that as disputed flat has already been sold by registered sale deed to third person, impugned order is not executable; hence, appeal be allowed and direction no. 2 of impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, OP''s appeal be dismissed. It was further submitted that delay in filing appeal No. 361 of 2015 be condoned and in case disputed flat cannot be given to the complainant some other flat in same vicinity be allotted to him.
It is not disputed that complainant booked Flat No. 503 in OP''s project for a sum of Rs.24,11,500/- and complainant deposited Rs.51,000/- as earnest money on 28.6.2009 and Rs.3,10,725/- on 10.8.2009.
As per conditions of earnest money receipt dated 28.6.2009 complainant was required to pay balance amount which may become due as per progress of work and it was further mentioned in that clause that interest will be charged if payments are delayed. Learned Counsel for OP could not place any document asking complainant to deposit balance amount and has not placed on record any document by which allotment of flat was cancelled. He has drawn my attention towards letter dated 12.5.2010 written by complainant in which it was mentioned that on visiting site for enquiring about work status, he was informed that his booking has been cancelled. In the absence of any notice for making balance payment, OP had no right to cancel the booking particularly when as per earnest money receipt payment could have been made along with interest for delayed payment. OP has not also placed on record any cancellation letter and in such circumstances, it cannot be inferred that OP cancelled flat booking of the complainant and in such circumstances, complainant continues to be a consumer and learned State Commission has not committed any error in allowing complaint.
Learned Counsel for OP further submitted that disputed flat has already been sold by OP vide registered sale deed dated 16.12.2010 in favour of other person. This Commission vide order dated 23.11.2015, rejected application of OP for taking this document on record as it was not referred in the written statement filed before State Commission. But, at the same time, this document can also not be ignored because complaint was filed on or after 31.5.2011 whereas this flat had already been sold by OP to third person vide registered sale deed dated 16.12.2010. In such circumstances, third party''s rights cannot be affected by directing OP to execute sale deed of same flat in favour of the complainant.
Complainant has filed Appeal No. 361 of 2015 with a prayer to direct OP to provide another flat in the same vicinity if disputed flat has already been sold to other person with similar prayer for alternate flat in the complaint along with application for condonation of delay of 370 days. No doubt, there is no explanation at all for condonation of delay of 370 days, but as disputed flat had already been sold by OP to third person before filing of the complaint, it would be appropriate to condone delay of 370 days subject to payment of cost of Rs.5,000/- by complainant to OP and delay in filing Appeal No. 361 of 2015 stands condoned on payment of cost.
As observed above that disputed flat has already vested in third person, OP can be permitted to allot another flat of some dimensions in the same building if it is still in ownership and possession of OP and in case no flat is available, OP is bound to compensate to the complainant on account of escalation of price. As complainant has made payment of only Rs.3,61,725/- against total cost of Rs. 24,11,500/-, it would be appropriate to direct OP to pay compensation of Rs. 5 lakhs in addition to interest allowed by learned State Commission.
Consequently, appeals filed by both the parties are partly allowed and impugned order dated
03.2014 passed by the learned State Commission in Complt. No. CC/11/133 - Suresh Pandey & Anr. Vs. M/s. R.N.A. Builders (N.G.) is modified and OP is directed to handover vacant possession of any other flat in the same building to the complainant if complainant agrees on making payment of balance consideration without interest, or in the alternate to pay compensation of Rs. 5 lakhs in addition to 21% p.a. interest allowed by learned State Commission in para 3 of the final order clause. Parties to bear their costs.