PER HON’BLE MRS. DR. RICHA BANSOD, PRESIDENT

This complaint has been filed under section 12 of the Consumer Protection Act, 1986 by the complainant a 51 year old resident of Ghatkopar. The opponents are M/s.Housing Development and Infrastructure Limited and M/s.Sapphire Land Development Private Limited through the Managing Director. The facts of the complaint are as follows :-

1)      The complainant and her husband Mr Deven Jairaj Udeshi jointly purchased one residential flat from the opposite party against consideration paid in part. Mr Deven Jayaraj Udeshi died on 23^rd May 2014. The complainant is the legal heir of the deceased. The flat being flat number 103 admeasuring 32.80 Sq.Mts. carpet area on first floor of B building number 10 Sector 2 HDIL Paradise City,Village Mahim, Palghar. The total agreed consideration was of Rs.8,83,575/-

Mr Deven Udeshi initially booked the flat in the name of his father Mr Jairaj Udeshi and the receipts of the payment of Rs.51,000/- and Rs.1,25,000/- by the name of Mr Jairaj Udeshi however on insistence of Mr Jairaj Udeshi, it was decided to purchase the flat in the name of Mr Deven Udeshi and complainant. The above amounts per paid by Mr Deven Udeshi. The total amount paid to the opposite party number 1 is Rs.2,64,358/- out of which Rs.51,000/- was paid by cash on 10^th December 2010, Rs.1,25,000/- by cheque number 883639 on 2^nd March 2011.

Further in June 2011, the complainant and her husband were informed that possession will only be delivered in June 2014. The complainant and her husband reluctantly agreed for the execution of agreement on 19^th October 2013 and subsequently registered the same on 11^th November 2013 spending an aggregate amount of Rs.68,040/- towards stamp duty registration charges and document handling fee. Apart from that the complainant has paid an amount of Rs.15038/- towards service tax and VAT. Later, the complaint received a letter dated 17^th April 2015 stating that the position of the flat booked by the complainant shall be delivered in the first quarter of financial year of 2016-17. The complainant has learnt that the opposite of Party number 1 has assigned the rights to Sapphire Land Development Private Limited that is opposite Party number 2 to complete the balance construction and to collect money from all flat purchasers.

The complainant states that because the site of opposite party number 1 is at Palghar therefore it is within the jurisdiction of this Commission.

The prayers of the complainant are

2)      That they be handed over the vacant and peaceful possession of the flat number 103 admeasuring 32.80 Sq.Mts. carpet area on first floor B wing building number 10 Sector number 2 in HDIL Paradise City at village Mahim in Palghar.

That the opposite parties be directed to demand only the balance consideration as per payment schedule of the agreement

That the opposite party be directed to jointly and severally pay interest at the rate of 18% per annum on the total amount paid by the complainant towards the consideration of the flat.

Or in the alternative

The opposite parties be directed to jointly and severally refund the money paid by the complainant towards consideration for the said flat along with the interest at the rate of 18% per annum from the respective dates of such payment till realization thereof.

That the opposite parties be directed to pay and amount of Rs.68,040/- the reimbursement for the stamp duty registration charges and miscellaneous expenses along with the interest at the rate of 18% per annum.

That the opposite parties be directed to pay the complainant an amount of Rs.5 Lakhs as compensation for mental and physical harassment and Rs.35,000/- as costs. The complainant attached a copy of the death certificate of the diseased Mr deven Jairaj Udeshi, copies of receipt dated 10^th December 2010 for Rs.51,000/-, and receipt dated 2^nd March 2011 for payment of Rs.1,25,000/-. Copies of bank statements showing realization of cheques paid to opposite parties. Copy of registered agreement for sale dated 19^th October 2013, copy of a letter dated 6^th February 2017 received from opposite party number 1, copy of letter dated 17^th April 2015 received from opposite party number 1, copies of letters received by other flat purchasers from Party number 1 regarding assignment of rights to opposite party number 2.

3)      The complaint was admitted and notice was issued. Track report was filed by the complainant alongwith application for the reissue of notice to opposite party no.2. The same was allowed. The application for service by way of publication in daily newspapers "Active Times" and "Mumbai Lakshadeep" on 18^th June 2022 was filed and allowed. As the opposite parties failed to appear, the matter proceeded ex-parte as per order dated 18^th November, 2022.

4)      The complainant filed affidavit of evidence and written notes of argument. On 12th June 23, counsel for opposite parties filed an application stating that the opposite parties have undergone corporate insolvency resolution process as per the order dated 20th August 2019. The application was allowed in the interest of Justice.

5)      The complaint was perused alongwith the list of documents, the affidavit of evidence and the written notes of argument and also the oral arguments were heard. With the following reasons we passed the following orders as under

Reasons

6)      The opposite party 1 and 2 promised to deliver the possession on 30^th June 2015 but failed to do so. The agreement was executed on 19^th October 2013 and registered on 11^th November 2013 with the total agreed consideration of Rs.8,83,575/-. The total amount paid by the complainant towards a flat cost is Rs.2,64,358/-. Thereafter, the complainant submits that other purchasers received a letter on 18^th March 2019 from opposite party no.1 stating that opposite party no.1 has assigned the rights to Sapphire Land Development Private Limited, which is OP 2. The construction work at the project is at a standstill and there is no response from any of the opposite parties regarding the project. Inspite of receipt of the part payment and agreement, the opposite parties have not made any effort to deliver the possession or demand the remaining amount of consideration of the flat from the complainant. That amounts to unfair trade practice of the opponents towards the complainant. The opponents failed to reply to this proceeding.

7)      Therefore, the allegations made in this complaint are proven against the opponents. As for the application of the opposite party that there was a moratorium through the order of NCLT dated 20^th August 2019, it was submitted before the Honorable Supreme Court in P. Mohanraj v. Shah Bros. Ispat (P) Ltd. [ LL 2021 SC 120 ; (2021) 6 SCC 25 that since the moratorium declared in respect of the Corporate Debtor continues to operate under Section 14 of the IBC, no new proceedings can be undertaken or pending ones continued against the Corporate Debtor. The Hon’ble Court observed

"At this juncture, we must however clarify the right of the petitioners to move against the promoters of the first respondent Corporate Debtor, even though a moratorium has been declared under Section 14 of the IBC. In the judgment in P. Mohanraj v. Shah Bros. Ispat (P) Ltd., a three judge Bench of this Court held that proceedings under Section 138 and 141 of the Negotiable Instruments Act 1881 against the Corporate Debtor would be covered by the moratorium provision under Section 14. However, it clarified that the moratorium was only in relation to the Corporate Debtor (as highlighted above) and not in respect of the directors/management of the Corporate Debtor, against whom proceedings could continue."

Hence, the following order.

Order

1)      Consumer Complaint No.CC/99/2020 is partly allowed.

2)      The opposite parties are directed to jointly and severally handover the peaceful, vacant and lawful possession of flat number 103 admeasuring 32. 80 Sq.Mts. on first floor wing B building 10 sector number 2 in the project HDIL Paradise City Mahim Palghar after the payment of the balance consideration as per the agreement.

Or in the alternative

3)      The opposite party no.1 and 2 are jointly and severally directed to pay Rs.2,64,358/- alongwith 12% interest from the date of filing of this complaint.

4)      The opposite party no.1 and 2 are jointly and severally directed to pay Rs.10,000/- as compensation to the complainant.

5)      The opposite party no.1 and 2 are jointly and severally directed to pay Rs.10,000/- as litigation charges to the complainant.

6)      The opposite party no.1 and 2 are jointly and severally directed to comply with the order within 30 days from the date of receipt of the order

7)      Members sets to be returned to the complainant

8)      The copies of the order to be provided to the parties free of cost.