IMPORTANT POINT
Delay in allotment of flat – Challenge to bar of pecuniary jurisdiction has to be raised at the first instance & cannot be permitted at the appellate stage.

ORDER

This appeal arises out of the order dated 28.02.2024 passed by the State Consumer Disputes Redressal Commission, Maharashtra in CC/599/2014 whereby the complaint filed by the respondent has been allowed granting the relief of possession of flat No.602 admeasuring 625 sq. ft. approximate built up area on the 6th floor of Sai Palace (now known as Om Sai Palace) at survey No.79 (new survey No.57, Hissa No.2) situate at village Goddev, Taluka Thane, Maharashtra to the complainant within a month of the passing of the order. The appellants have been jointly and severally directed to pay compensation in the form of interest @ 9% p.a. on account of delay in handing over the possession till the actual date of handing over of possession as per the time indicated hereinabove, and on failure thereof, the rate of interest would stand enhanced to 12% p.a.

2. They have been jointly and severally directed in the alternative to pay the current market value of the said flat to the complainant and to determine the same in accordance with the valuation report from the office of the Sub-Registrar that will be looked into at the time of the execution.

3. A sum of Rs.5/- lacs for mental and physical agony was also awarded with Rs.50,000/- as cost of litigation.

4. The builder/developer has filed this appeal and the following order was passed on 05.06.2024: -

“Heard learned Counsel for the Appellant.

The Appeal has been opposed through Caveat and the learned Counsel for the Caveator / Respondent is also present online.

After having heard the learned Counsel for the Appellant at length prima facie none of the grounds raised in the Appeal call for any interference at the instance of the builder who has, after having received more than 75% of the consideration money, failed to deliver the premises to the Respondent and not only this, has also sold off the property to a 3rd party. This further compounds the conduct of the builder in denying the fruits of the small investment made by the Respondent aspiring to have a roof over his head.

Learned Counsel prays that he may be permitted to obtain instruction for making a reasonable offer to the Respondent. As prayed let it be done within four weeks.

List for Directions / Admission on 05.08.2024.”

This order was followed by an order dated 14.08.2024, which is extracted herein under: -

“Learned counsel for the Appellant states that the affidavit as desired by the earlier order stating the offer has been prepared and a copy thereof has been served on the learned counsel for the respondent yesterday.

Let the affidavit be filed before the Registry within a week. Learned counsel for the respondent may obtain the instructions and file his response, if any, to the said offer within two weeks.

List on 25.09.2024 for directions.”

5. In essence there is a complete denial on behalf of the appellants for offering possession of the flat as it has already been sold to a third party for which a defence has been taken, and it is otherwise urged, that the booking of the complainant was cancelled as he had failed to comply with the payments that were due. The shortage in payment is admitted to the complainant and in such circumstances the resale of the flat to a third party was nowhere impeded. It is submitted that the builders were well within their right to negotiate the property and there was no injunction operating against them when the property was resold and in fact the property had been negotiated with the subsequent buyer when there was no legal impediment. As a matter of fact it was sold even before the institution of the complaint before the State Commission or any orders passed thereon.

6. At the outset it would be appropriate to record that in compliance of the orders dated 05.06.2024 and 14.08.2024 extracted hereinabove the appellants have come up with a copy of the letter dated 11.08.2024 sent by their advocates to the complainant which is extracted herein under: -

“To,

1. Subhash Ramjang