REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO 5699 OF 2019

(Arising out of SLP(Civil) No. 13984 of 2018)

M/s Treaty Construction & Anr. APPELLANT(S)

Vs.

M/s Ruby Tower Co-op. Hsg. Society Ltd. RESPONDENT(S)

JUDGMENT

Dinesh Maheshwari, J.

Leave granted.

2.This appeal by special leave is directed against the judgment and

order dated 07.03.2018, as passed by the National Consumer Disputes

Redressal Commission (‘the National Commission’ hereafter) in First Appeal

No. 109 of 2015, whereby the National Commission has modified the order

dated 17.12.2014, as passed by the State Consumer Disputes Redressal

Commission, Maharashtra, Mumbai (‘the State Commission’ hereafter) in

Complaint Case No. 120 of 2005; and has issued directions to the effect that:

(i) the appellants shall pay a sum of Rs. 28,00,000/- to the respondent-

society (the complainant) within a period of 45 days, failing which the amount

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shall carry interest @ 8% per annum from the date of passing of the order till

the date of payment; (ii) a sum of Rs. 1,000/- per day shall further be paid by

the appellants after 60 days from the date of order till the time full Occupancy

Certificate is obtained; (iii) the appellants shall convey the title of the property

in question by executing a registered Deed in terms of the order passed by

the State Commission within a period of 4 months after obtaining the

Occupancy Certificate. The National Commission has also upheld costs of

Rs. 50,000/-, payable by the appellant No.1 herein.

3.The background aspects of the matter, so far relevant for the present

purpose, may be noticed, in brief, as follows:

3.1.The appellants had evolved the scheme of constructing a building

consisting of 64 flats and 13 shops on a plot bearing Survey No. 22, Hissa

No. 7 [C.T.S. Nos. 99, 99 (1 to 16) and 114] at Sahakar Road, Off. S.V.Road,

Jogeshwari (West) Mumbai. The persons who agreed to purchase respective

flats and shops in the said project eventually formed a Co-operative Housing

Society, who is the respondent in this appeal (‘the respondent-society’

hereafter). In relation to the project in question, several disputes ensued

between the members of respondent-society on one hand and appellants-

builders on the other, leading to a complaint before the State Commission,

being Complaint No. 120 of 2005 by the respondent-society

1

.

1 Apart from the present appellants, several other persons were also joined as opposite

parties in the said complaint case who have since been deleted from the array of

parties.

2

3.2.The respondent-society submitted before the State Commission, inter

alia, that several sale deeds were executed between the period 1994 to 2002

whereby, its members purchased certain apartment units as also commercial

units of varied sizes but, despite making payment over and above the agreed

sale consideration, the appellants failed to discharge their part of the contract

inasmuch as the interior works remained incomplete; and the appellants also

failed to obtain the Completion Certification as also the Occupancy

Certificate. It was also alleged that pending completion of the building works,

the appellants borrowed and collected varied sums of money from the

members of the respondent-society, on the pretext that the money would be

used towards finishing the incomplete works; and this aspect was recorded in

the minutes of the meeting held on 12.07.1998.

3.2.1.It was further alleged that after some time, the respondent-society

demanded reimbursement of the amount given by its members; and though

the appellants agreed to reimburse a lump sum of Rs. 25,00,000/- on

17.12.2003 but, even after a lapse of about a decade, the appellants had

failed to reimburse the amount; failed to obtain the Occupancy Certificate;

and also failed to complete the pending works to the satisfaction of

respondent. It was yet further alleged that as an added burden, upon taking

possession of their individual units, the members of respondent-society had

to spend additional sums of money to complete the interior works in their

respective flats and the building; and had also to pay excess of taxes under

various heads. Thus, according to the respondent, there was a clear

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deficiency of services on the part of appellants and there was a clear

violation of Sections 4 and 11 of The Maharashtra Ownership Flats

(Regulation of the Promotion, Construction, Sale, Management and Transfer)

Act, 1963. ('MOFA').

3.2.2.With the submissions aforesaid, the respondent-society sought the

following reliefs before the State Commission in the complaint:

"a) To hold and declare the Opposite Parties guilty of

deficiency in service as well as unfair trade practice under

the provision of the said Act.

b) To direct the Opposite Parties to convey the said

land/property in favour of the Complainant's Society by

completing all requisites formalities at their own expenses.

c) To direct the Opposite Parties to handover the Completion

Certificate, Occupation Certificate, to the Complainants'

realization of the same.

d) To refund the amount collected towards temporary loan to

the tune of Rs. 35,16,820/- to the Complainants' Society

along with the interest @ 21% from the date of payment till

the realization of the same.

e) To refund the amount collected toward possession Charges

to the tune of Rs. 26,25,000/- to the Complainants' Society

along with the interest 21% from the date of payment till the

realization of the same.

f) To direct the opposite parties to reimburse the expenses

incurred by the Complainant's Society 'to the tune of Rs.

46,40,000/- towards the completion of interior civil work along

with the interest 21% from the date of payment till the

realization of the same.

g) To direct the Opposite Parties to develop the garden on the

plot reserved for the same.

g) (sic) That the Hon'ble Forum may be pleased to direct the

Opposite Party to pay an amount of Rs. 2,00,000/- towards

compensation mental agony and cost of the above numbered

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Complaint and further an amount of Rs. 1,00,000/- towards

incidental expenses incurred by the Complainant.

h) For such other and further reliefs as the nature and

circumstances of the case may deem fit and proper."

3.3.The appellants filed their separate counter versions to the complaint

aforesaid. Apart from stating that the claim of the respondent was

exaggerated, they also contended that there was a clear admission of the

fact that the appellants had undertaken to reimburse a sum of Rs.

25,00,000/- towards full and final settlement of the grievances raised by the

respondent, and the said amount was to be realized by consuming the

unconsumed FSI available on the said plot of land, as per the stipulations

incorporated in the registered agreement for sale, which fact had been

concealed by respondent. The appellants further submitted that the delay

was not on their part but had been due to the obstruction caused and

created by the respondent and its members who, after purchasing their

respective flats, had made illegal constructions/alterations, which had clearly

been brought out in the show-cause notices issued by the Municipal

Corporation. The appellants also denied the contention of the respondent

that the members completed their respective interior civil works.

3.4.During the course of hearing of the matter and pending disposal of the

complaint, the respondent-society filed an application dated 21.03.2013

before the State Commission with the submissions that the prayer (d) of the

complaint was not pressed; the amount claimed in prayer (f) was restricted to

Rs. 25,00,000/-; and that although there was no illegal alteration by the flat

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purchasers, yet the complainant was agreeable to remove the same as

required by the Municipal Corporation. The respondent-society stated in this

application as under:

"1) That the complainant is not pressing the prayer of Rs.

35,16820/- [claimed in prayer (d) i.e. temporary loan]

alongwith interest 21% interest.

2) That the complainant is restricting the prayer 10(f) to

amount of Rs. 25,00,000/- as per the minutes of meeting dtd

17/12/03 & 14/12/03 which was signed by both the parties.

3) That the complainant says that there is no illegal alteration

made by the flat purchasers. However, the complainant

consent to remove the same (if any) as required by BMC."

3.4.1.At this juncture, for their relevance, we may also take note of the

minutes of the aforesaid meetings dated 14.12.2003 and 17.12.2003 as

under:-

“Minutes of meeting held with Ruby Tower Members on

14/12/03

1.It was discussed that BMC expenses upto procuring of

Occ. Certificate will be that of the Builders which the Builders

have agreed.

2.Regarding the settlement of accounts for which the

Builders had offered Rs. 15,00,000/- in the last meeting held,

the members offered Rs. 25,00,000/-, subject to the above

condition as full and final settlement towards all loans,

liabilities, etc of the Builder.

3.It was finalized that another meeting would be held on

Wednesday i.e. 17/12/03 after Namaz-e-Isha at 9:00 p.m.

4.It is agreed that henceforth transfer charges of Ruby

Tower will be of the Ruby Tower Soc. (Prop).

5.The meeting held was concluded in a cordial

atmosphere and all present Society members have happily

agreed to this proposal.”

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“Date: 17.12.2003

Minutes of the meeting held with members of Ruby Tower

01.As decided on 14.12.03, the meeting for finalizing the

settlement of all pending dues/liabilities of the Builder was

conducted at 9.30 p.m. at the Builder’s office.

2.The Builders agreed to the demand of Rs. 25,00,000.00

raised by the members in the last meeting. However, it was

clarified that the first priority would be that of regularizing

‘Ruby Tower’ with respect to BMC.

3.Regarding payment of the agreed amount of Rs.

25,00,000/-, it was proposed by the Builder that he would

arrange for the same within six to nine months, which the

members agreed.

4.It was clarified by the present members that their

decision was binding on all the members and all had

authorized the members present to finalize the matter in the

meeting held among themselves on 16.12.03.

5.The meeting concluded in a cordial atmosphere. ”

3.5.On consideration of the material on record, the State Commission

observed that the Municipal Corporation had raised the alleged objections by

their letter/notice dated 09.07.1993 whereas the flat owners were put in

possession somewhere between 1995 to 2002; that the Society was

established in the year 2005; and the frantic efforts made by the

owners/members of respondent-society for execution of the Deed of

Conveyance and for obtaining Occupancy Certificate was just and legitimate.

The State Commission further observed that the respondent had produced

certain sample receipts to show that charges amounting to Rs. 26,25,000/-

were collected for handing over possession of the flats and such charges

were collected beyond the stipulated agreed consideration. The State

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Commission, however, found that there was no documentary evidence to

show that the additional amount of Rs. 46,40,000/- was spent to complete

the interior civil works.

3.6.In view of its findings, the State Commission partly allowed the

complaint while directing the appellants to execute the Deed of Conveyance

of the property in question after obtaining the Completion Certificate and

Occupancy Certificate within 90 days and else, to pay Rs. 1,000/- per day

until the date of compliance. The State Commission also observed that the

complainants had not pressed for refund of the loan amount of Rs.

35,16,820/- and, therefore, the respondent-society was held entitled only for

the refund of the amount of Rs. 26,25,000/-, which was given to obtain

possession of the flat, together with interest @ 9% p.a. from the date of filing

of the complaint and payable within 90 days, failing which the said amount

shall bear an interest @ 12% p.a.

3.7.The State Commission, inter alia, observed and directed as under:-

“[8].On going through the record and documentary

evidence relied upon by parties, we find that the prayer for

refund of Rs. 26,25,000/- which was extended as loan by the

complainant society members is justified as few sample

receipts showing the charges collected for handing over the

possession of flats. On carefully going through the terms and

conditions of the registered agreement, it appears that the

opponents have collected these charges under the guys (sic)

of possession of the flats beyond the stipulated agreed

consideration. Therefore, we find that complainants are

entitled to get refund of an amount of Rs. 26,25,000/- since it

was illegally collected by the opponents from the flat buyers

of the complainant society. Complainants have not pressed

refund of Rs. 35,16,820/- allegedly extended as temporary

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loan to the opponents for completion of balance work.

Therefore, we do not want to comment further. There is not

documentary evidence to demonstrate that Rs. 46,40,000/-

were incurred by the complainant society to complete the

interior civil works. Therefore, we are not inclined to consider

this monetary claim. The registered agreement does not

provide for development of garden. Therefore, prayer beyond

the stipulations of agreement cannot be considered as

pleaded by the learned counsel of the opponents.

[9]. Considering facts and circumstances of the case,

opponents have failed to comply their statutory obligations

u/s. 11 of the MOFA Act to execute the deed of conveyance

and obtain Completion Certificate and Occupation Certificate.

Therefore, the complainant’s prayer seeking directions to the

opponents to fulfill statutory obligations are just and proper.

Complainant society has discharged initial burden to prove

deficient service rendered by the opponents. Therefore,

complaint must succeed for issue of directions to the

opponents to fulfill the statutory obligations and refund of

illegally collected excess amount from the members of the

complainant society.

ORDER

(1) Complaint is partly allowed.

(2) Opponents, jointly and severally, are directed execute

Deed of Conveyance, by obtaining completion certificate and

occupation certificate for transferring rights, interest and title

of building and piece of land bearing Survey No. 22, Hissa

No. 7, and bearing C.T.S. Nos. 99, 99(1 to 16) and assessed

by Municipal Corporation of Greater Bombay in Ward No. KN

150512-00 No. K-5125 (1-2) 89A, 90, K-5125 (3) 898, K-

5126 (1), 88 and K-5126 (3) 8890, in favour of complainant

society within period of 90 days from date of the this order,

failing which opponent shall pay Rs. 1,000/- per day to the

complainant society from the date of this order till

compliance.

(3) Opponents, jointly and severally, are directed to pay Rs.

26,25,000/- [amount illegally collected for hading over the

possession of the flats] along with interest @ 9% p.a.

effective from the date of filing of complaint i.e. 04/10/2005

within period of 90 days from the date of this order, failing

which the rate of interest shall be payable @ 12% p.a. from

04/10/2005 till its realization.

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(4) Opponents shall bear their own costs and pay costs of

Rs. 50,000/- to the complainant society within period of 90

days from the date of this order.

(5) Certified copies of this order be furnished to the parties”.

3.8.In appeal against the order of the State Commission before the

National Commission, the appellants denied the receipt of loan amount of

Rs. 26,25,000/- and argued that the deletion of the name of the then

President of the respondent-society, who was a signatory to all the receipts,

was not warranted, as his presence would have clarified all the issues which

formed the subject-matter of the complaint; and that due to the failure on the

part of the respondent-society to remove the changes/alterations made to

the building, the Municipal Corporation refused to issue the Occupancy

Certificate. It was also argued that the State Commission had no pecuniary

jurisdiction in relation to the complaint in this matter.

3.9. The National Commission rejected the contention that the State

Commission had no pecuniary jurisdiction for the reason that the same was

not urged before the State Commission and the matter was decided on

merits. The National Commission examined the record and found that there

was absolutely no evidence on record to show that the alleged money was

taken by the appellants for the purpose of completing the pending works in

the building. The National Commission, however, observed that having

agreed to pay a sum of Rs. 25,00,000/- to the respondent-society, the

appellants were bound by the admission so made by them and were liable

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to that extent. As regards the arguments relating to Occupancy Certificate,

the National Commission was of the view that the appellants were negligent

and there had been deficiency in service inasmuch as the appellants should

not have handed over possession of the flats without obtaining the

Occupancy Certificate. However, for the purpose of regularizing and

legalizing the title of the members of respondent-society, it was preferred

that a time bound order be made and, accordingly, the National Commission

upheld the order passed by the State Commission with certain

modifications.

3.10.The National Commission, inter alia, observed, held and directed as

under:-

“10.I have carefully considered the arguments of both the

learned counsel and have examined the material on record.

Basically I agree with the contention of the learned counsel

for the appellant that all the receipts were issued by the

President of the Society and he has been deleted from the

array of the parties on the request of the complainant and

therefore, there is no proof that the money has been paid to

the appellant. The State Commission has ordered only on

presumption. Thus, the OP/appellant herein cannot be

saddled with the responsibility to refund the amount of Rs.

26,25,000/- to the complainant as loan repayment. However,

this is also true that the appellant has admitted that he had

agreed in the meeting dated 17.03.2003 to pay Rs. 25 lakhs

to the complainant for the deficiency in service. Clearly this

amount has not been paid by the OP to the complainant and

therefore, the appellant No. 1 is liable to pay Rs. 25 lakhs to

the complainant as per his own admission in the list of dates

filed along with the present appeal.

11.So far as the question of obtaining the Occupancy

Certificate is concerned, as per the provisions of MOFA the

possession should not have been handed over to the

members of the complainant society without obtaining

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occupancy certificate and this is a clear unfair trade practice.

It is being argued on behalf of the OP that there are additions

and modifications in the building and therefore, it is difficult to

obtain the certificate and the matter is getting delayed. This

argument is not tenable as the situation has been created by

the OPs themselves as they offered possession without the

occupancy certificate. Clearly, not obtaining occupancy

certificate is the deficiency on the part of the OP/appellant.

12.Coming to the question of FSI, though there is a

provision in the agreement in condition no. 42 that the

allottees/purchasers shall not object to OP utilizing additional

FSI, which may be available at the time of agreement or being

made available even in a future date. However, this provision

goes against the spirit of MOFA as this Commission in

Vaibhav Development Corporation and others (supra) has

held that it is obligatory upon the builder to obtain a full

Occupancy Certificate, without which a Conveyance Deed in

favour of the complainant society cannot be executed.

However, there has to be a reasonable time for execution of

conveyance deed in favour of the Society and this according

to the said Rule has to be within four months if no period of

conveying the title to the Society is mentioned in the Sale

Agreement.

13.As the OP has given possession to the members of the

Society without obtaining Occupancy Certificate, the

possession of allottees has become illegal. As the purchasers

have paid full consideration of the flats, they are entitled to

have legal possession and legal right and title. It is also seen

from the observation of the State Commission that the

appellants/opposite parties have not replied to the queries

raised by the Municipal Corporation and therefore, they

themselves were negligent and deficient in taking steps for

getting the Occupancy Certificate. As complaint has been filed

by the society, it is essential that the possession of its

members is regularized and title of the members as well as of

the Society is legalized. This can only be legalized if OP

obtains Occupancy Certificate.

Therefore, it is necessary to direct the OP to obtain the

Occupancy Certificate in a time bound manner. In this

respect, the order of the State Commission is perfectly valid

so far as it relates to directing the OP to obtain Occupancy

Certificate within 90 days. Once the Occupancy Certificate is

obtained the title has to be conveyed to the Society within four

months. From this point of view, the condition No. 42 is

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against the provisions of MOFA. Hence, this condition will not

be a binding on the other party. Therefore, the existence of

this condition in the agreement shall only be seen as unfair

trade practice. As the OP has not obtained the occupancy

certificate and thereby the OP is not able to register the

conveyance deed in favour of the complainant Society, the

continuing deficiency on the part of the appellant/OP is

evident. Therefore, I do not find any error in the order of the

State Commission in respect of the OP obtaining occupancy

certificate and then executing the conveyance deed in favour

of the Society. The penalty of Rs. 1,000/- per day was

effective from 17.03.2015, however, looking at the difficulties

of the appellant in getting the occupancy certificate due to

some modifications, additions and alterations in the building, I

deem it appropriate to put a lump sum compensation of Rs. 3

lakhs to be paid to the Complainant Society by the appellant

for not obtaining occupancy certificate till today. It is further

ordered that the order of the State Commission for paying Rs.

1,000/- per day shall be applicable now from the expiry of 60

days from the date of this order. This amount shall be paid

regularly at every month to the complainant society till the

occupancy certificate is obtained and conveyance deed is

executed in favour of the Society.

14.As regard the objection of the appellants regarding

pecuniary jurisdiction of the State Commission, it appears that

this objection has not been taken before the State

Commission specifically. As the matter has now been decided

by the State Commission on merits, the technical objection of

pecuniary jurisdiction cannot be raised at this stage. This view

gets support from the decision of the Hon’ble Supreme Court

in Harshad Chiman Lal Modi Vs. DLF Universal and Anr., AIR

2005 SC 4446, wherein the Hon’ble Apex Court has held as

follows:-

“So far as territorial and pecuniary jurisdictions are

concerned, objection to such jurisdiction has to be

taken at the earliest possible opportunity and in

any case at or before settlement of issues. The law

is well settled on the point that if such objection is

not taken at the earliest, it cannot be taken at a

subsequent stage.”

15.Based on the above discussion, the appellants are

directed to pay Rs. 28,00,000/- (rupees twenty eight lakhs

only) to the respondent No. 1 Society within a period of 45

days, failing which this amount shall carry an interest @ 8%

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p.a. from date of this order till actual payment. Appellants

are further directed to pay Rs. 1,000/- (rupees one

thousand) per day after 60 days from date of this order to

the Complainant Society till obtaining of the full Occupancy

certificate. It is further directed that appellants shall convey

the title of the property as detailed in the order of the State

Commission in favour of the complainant Society by

registered deed within a period of four months after

obtaining the Occupancy Certificate. The impugned order of

the State Commission stands modified accordingly. The cost

of Rs. 50,000/- is also upheld. First Appeal No. 109 of 2015

stands disposed of accordingly.”

4.Assailing the order aforesaid, learned counsel for the appellants has

argued that as per the admitted position on record, the members of the

respondent-society had carried out additional constructions/alterations to the

building due to which, the Municipal Corporation was not issuing the

Occupancy Certificate and hence, the National Commission ought not to

have issued directions for obtaining the Occupancy Certificate. The learned

counsel has referred to the reply letter dated 01.10.2002 by one Shri Nazeer

H. Kadri in support of the contention that the members of respondent-society

did carry out alterations to their respective flats/shops. The learned counsel

has further submitted that the respondent-society violated the terms of

undertaking as mentioned in the pursi dated 21.03.2013 filed before the

State Commission, wherein they had undertaken to remove the illegal

alteration, if so required by the Municipal Corporation. The learned counsel

has further pointed out that removal of additional

structures/changes/additions put up by the members of respondent-society

was the subject-matter of a writ petition, being W.P. No. 970 of 2015, filed

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before the High Court of Judicature at Bombay, which was disposed of by

the order dated 12.06.2017 with directions that a designated officer of the

concerned ward shall visit the property in question so as to ascertain

whether there were illegal constructions/unauthorized changes/additions/

alterations; and if such violations were found, then to intimate the necessary

parties prior to taking of any action for demolition or removal

2

.

4.1Learned counsel has also contended that when the State Commission

had rejected the prayer for payment of Rs. 25,00,000/- to the respondent-

society and the same was not the subject-matter of appeal, the National

Commission has gravely erred in awarding this amount to the respondent.

Learned counsel has further submitted that even if handing over possession

of flats to the members of the respondent-society in the absence of the

Occupancy Certificate was being questioned, fact of the matter remains that

illegal/unauthorized construction/alterations were carried out by the

members of respondent-society; and in these circumstances, the

responsibility for delay in completion of all other requirements could not

have been fastened on the appellants.

5.Per contra, learned counsel for the respondent-society has supported

the order passed by the National Commission as regards holding the

appellants responsible for the deficiency in services as also for the delay in

obtaining the Occupancy Certificate. The learned counsel would submit that

2 The learned counsel for the appellants has further pointed out that the Municipal

Corporation has initiated necessary proceeding, as noticed by the High Court in its order

dated 07.01.2019 in Notice of Motion No. 221 of 2018 moved in W.P. No. 970 of 2015.

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the appellants handed over the flats/commercial units not only without

Occupancy Certificate but also without providing basic facilities such as

water, electrical meter etc.; and in any case, non-compliance with the

conditions to obtain Occupancy Certificate speaks volumes about the

deficiency of services on the part of the appellants. According to the learned

counsel, the building is in the same condition as it was on the day of

handing over possession to the members of respondent-society; in other

words, the members of respondent-society have not carried out any

alterations/constructions in the said premises. While further refuting the

contention of appellants that the Occupancy Certificate was not issued for

unauthorized construction or alteration by the members of respondent-

society, the learned counsel has contended, with reference to the

correspondence with the Municipal Corporation, that Occupancy Certificate

was not issued for want of compliance by the appellants of various

requisites and the attempt to shift the burden in that regard on the members

of the respondent-society was entirely unjustified. According to the learned

counsel, the appellants had attempted to amend the plan of the building

which was resisted by respondent; and there exists a dispute between the

parties in relation to a portion of a property demarcated for Recreational

Ground inasmuch as the said portion is being used by one garage owner as

a parking space at the behest of the appellants, which has resulted in

harassment of the members of respondent-society.

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6. Having heard learned counsel for the parties and having perused the

material placed on record, we are satisfied that in the given set of facts and

circumstances, directions by the National Commission as regards payment

of a sum of Rs. 25,00,000/ by the appellants to the respondent-society calls

for no interference but then, other parts of the order impugned call for

suitable modification.

7.The contention on the part of appellants as regards pecuniary

jurisdiction has only been noted to be rejected. The National Commission

has observed, and rightly so, that such a plea was not specifically raised

before the State Commission at the earliest opportunity; and the State

Commission having already decided the matter on merits, such a technical

objection as regards pecuniary jurisdiction could not have been

countenanced before the National Commission. We find no error in the

National Commission rejecting this plea as being wholly untenable at the

given stage.

8.As regards merits of the case, to put it in a nutshell, the respondent-

society, while filing their complaint, sought for reimbursement of the amount

of: (i) Rs. 35,16,820/- that was borrowed by appellants; (ii) Rs. 26,25,000/-

collected towards possession charges; and (iii) Rs. 46,40,000/- towards the

amount spent by the members for completing the interior works in their

respective units. By way of the application dated 21.03.2013

3

the

respondent-society did not press on prayer (d) concerning the said amount

3 Reproduced hereinbefore in paragraph 3.4.

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of Rs. 35,16,820/- towards temporary loan and at the same time, restricted

their claim in prayer (f) to the extent of Rs. 25,00,000/- with reference to the

minutes of the meetings dated 17.12.2003 and 14.12.2003

4

. The State

Commission, while issuing directions for executing the Deed of Conveyance

by obtaining Completion Certificate and Occupation Certificate, also directed

the appellants to pay Rs. 26,25,000/- with interest, being the amount illegally

collected towards possession charges. The State Commission, however,

held that there was no documentary evidence to establish that the amount of

Rs. 46,40,000/- was incurred by the members of the respondent-society to

complete the interior civil works. On the other hand, the National

Commission agreed with the submissions of the appellants that the

directions regarding refund of Rs. 26,25,000/- could not have been issued

when there was no cogent proof and when the President of the society, who

had issued the receipt in question, was deleted from the array of the parties

on the request of the complainant. However, the National Commission

ordered payment of Rs. 25,00,000/- by the appellants as agreed by them in

the meeting dated 17.12.2003.

9.When the prayers made in the complaint are read along with the

contents of the application dated 21.03.2013 as also with the findings of the

State Commission and the National Commission, it may appear at the first

blush that the amount claimed towards temporary loan in prayer (d) was

given up by the respondent-society whereas no proof was found in relation

4 Reproduced hereinbefore in paragraph 3.4.1.

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to amounts claimed in prayers (e) and (f) towards possession charges and

interior civil works respectively. However, fact of the matter remains that

there had been long drawn disputes between the parties on several issues,

including those regarding monetary claims made by the respondent-society

and its members; and meetings were held for resolution of such disputes.

The prayers (d) to (f) for money recovery in the complaint and the

submissions made in the application dated 21.03.2013 are required to be

viewed in the context of such claims and the resolutions adopted in the

meetings. In our view, it would be wholly inappropriate and unjustified to

consider the prayers as made in the complaint and as modified in the

application de hors the context and disjointed from the decisions taken in the

meetings aforesaid.

10.Indisputably, in the application dated 21.03.2013 as moved before the

State Commission, the respondent-society restricted its prayer for money

recovery to a sum of Rs. 25,00,000/- with reference to the aforesaid minutes

dated 17.12.2003 and 14.12.2003. It is at once clear that the aforesaid sum

of Rs. 25,00,000/- was agreed to be paid by the appellants in full and final

settlement of the claim of the respondent-society. The appellants having

agreed to make such payment, in our view, the National Commission has

rightly put them to the terms of honouring their unequivocal

commitment/promise. In the given set of facts and circumstance, we are

unable to accept the contention that a particular part of order of the State

Commission having not been challenged by the respondent-society, the

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National Commission could not have granted the relief otherwise available

on the face of record. In an overall view of the matter, when such a relief

emanates from the very commitment made by the appellants in the

meetings aforesaid, the National Commission had been fully justified in

granting the same to the respondent-society. Therefore, we find no reason to

consider any interference in this part of direction by the National

Commission (as contained in paragraph 10 of the order impugned).

11.Even when we find no reason to interfere with the above-mentioned

parts of the order impugned, it appears difficult to approve the directions in

the remaining parts thereof, particularly those relating to other pecuniary

reliefs. The National Commission has saddled the appellants with a liability

to pay compensation to the tune of Rs. 3,00,000/- for not obtaining

Occupancy Certificate and has issued further directions to the appellants to

obtain such certificate as also to execute the requisite Deed and to pay Rs.

1,000/- per day for every day of delay. True it is that Occupancy Certificate

was not obtained by the appellants but then, fact of the matter remains that

the members of respondent-society chose to take over possession without

such certificate; and then, several questions have arisen as regards the

alteration allegedly carried out by them for which, the Municipal Corporation

has the objections to raise. In any case, there appears nothing on record to

find the basis for holding the appellants liable for compensation and then, for

assessing the quantum of compensation, if at all there be any liability of the

appellants. In other words, there is no material on record to find if the

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respondent-society or its members suffered any loss; and if so, the extent

thereof. Therefore, this part of the order impugned, directing the appellants

to pay compensation to the tune of Rs. 3,00,000/-, cannot be approved.

12.As regards direction to appellants to convey the title of the property in

question by executing a registered Deed within a period of four months after

obtaining Occupancy Certificate, in our view, though the appellants cannot

avoid their legal obligation to execute the requisite Deed but then, having

regard to the facts and circumstances of the case and more particularly the

facts relating to the issuance of notices by the Municipal Corporation; and

the dispute/objection regarding alterations by the members of the

respondent-society having not been settled as yet with the High Court

having issued directions for inspection of the building and for necessary

follow-up steps, awarding of Rs. 1,000/- per day for every day of delay

seems rather unwarranted. In the given situation, where the Municipal

Corporation had been of the view that there were visible illegal constructions

made by the members of respondent-society because of which the

Certificate cannot be issued; and in view of the orders dated 12.06.2017 and

07.01.2019 passed by the High Court in W.P. No. 970 of 2015, the penalty of

Rs. 1,000/- per day deserves to be waived at present but with the

requirements on the parties to complete the respective requisites, while

leaving it open for them to take recourse to appropriate remedies, in case of

any grievance arising in future.

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13.Having regard to the fact and circumstances of this case and looking

to the nature of dispute, we find no justification for saddling the appellants

with cost of Rs. 50,000/- either. The cost deserves to be made easy in this

case.

14.In the result:

(i)The impugned order dated 07.03.2018 is not interfered with, to

the extent it relates to the payment of Rs. 25,00,000/- by the appellants to

the respondent-society. The appellants shall make payment of this amount

of Rs. 25,00,000/- within 45 days from today failing which, this amount shall

carry interest @ 8% p.a. from today until payment.

(ii)The other part of the order impugned, saddling the appellants

with liability to pay compensation to the tune of Rs. 3,00,000/- is set aside.

(iii)Yet another part of the order impugned, requiring the appellants

to pay Rs. 1,000/- per day after 60 days of the order and until obtaining full

Occupancy Certificate, is also set aside.

(iv)As regards obtaining of Occupancy Certificate and execution of

the Deed of Conveyance by the appellants, it is provided that: (a) the

appellants shall complete all the requisites on their part for obtaining

Occupancy Certificate within three months from today; and (b) the

respondent-society and its members shall also ensure compliance of the

requisites on their part (with reference to the orders passed by the High

Court in W.P. No. 970 of 2015) within three months from today and for that

22

matter, they may seek necessary directions from the High Court, if so

required. Within two months of completion of all the requisites by the parties,

the appellants shall execute the Deed of Conveyance in favour of the

respondent-society after obtaining the necessary Occupancy Certificate. As

regards this part of the matter, it is also left open for the parties to take

recourse to appropriate remedies in accordance with law, in case of any

grievance arising in future.

(v)The cost imposed on the appellants is waived and parties are

left to bear their own costs of this litigation.

15.This appeal is partly allowed and the impugned order dated

07.03.2018 as passed by the National Commission stands modified to the

extent and in the manner indicated above.

………………..……………… ………J

(Abhay Manohar Sapre)

………………..……………… ………J

(Dinesh Maheshwari) 1

New Delhi,

Dated: 19

th

July, 2019.

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