Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
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)
J U D G M E N T
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
Date: 2022.08.12
17:14:24 IST
Reason:
and order passed by the National Consumer Disputes Redressal
Commission, New Delhi (for short, ‘the National Consumer
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Commission) dated 12 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
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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.
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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
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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
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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
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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
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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
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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
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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
th
mission is dated 12 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.
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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
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Consumer Commission dated 12 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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