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

This complaint has been filed under section 12 of Consumer Protection Act 1986. The complainant is a 57 year old resident of the Dahisar (West). The opposite parties are M/s. Housing Development and Infrastructure Limited through the Managing Director, M/s Sapphire Land Development Private Limited through the Managing Director. The facts of the complaint are as follows -

1)      The opposite party, numbers one and two, are engaged in the business of building construction and sale of flats. In December 2010, the complainant purchased one flat from opposite party number 1 in the project called HDIL Paradise City Phase 1 at Village Mahim, Palghar flat number 103 admeasuring 32.80 Sq.Mt. on the first floor having building number 10 Sector number 2. The total agreed consideration was Rs.8,83,575/- Complainant paid an amount aggregate to Rs.2,81,213/- by cheques dated 10^th December 2010, 15^th February 2011, and 10^th January 2018. The opposite party number 1 issued the receipt dated 12^th December 2010 for the payment of Rs.51,000/- as booking amount in June 2011. The complainant was informed that the possession of the said flat shall be delivered only in June 2015. At the time of booking, the complainant was informed that the possession would be before December 2013. Agreement of sale was executed on 29^th October 2014 and registered on 5^th November 2014. The complainant paid Rs.74,920/- towards stamp duty registration charges and document handling fee. The complainant also paid Rs.16,140/- towards service tax and VAT as demanded by the opponent number 1 through its letter dated 24^th June 2017. The complainant received the letter dated 17^th April 2015 from opposite party number 1, stating that the possession of the flat will be given in the first quarter of 2016-17. Thereafter, the complainant received a letter dated 18^th March 2019 from opponent number 1 stating that the opponent number 1 has assigned rights to Sapphire Land Development Private Limited to complete the balance construction and to collect money. Thereafter, the project was at a standstill. There was no response from the opposite parties. The compliment has paid Rs.3,54,513/- as consideration for the service of housing construction. The complainant says that as the project is in Palghar, therefore, this commission has sufficient jurisdiction under section 11 (2) C.

2)      The complainant prays that the opposite parties be directed to hand over the peaceful vacant and lawful possession of flat number 103 admeasuring 32. 80 Sq Mt on first floor A Wing building number 10 sector number 11 in the project called HDIL Paradise City at village Mahim in Palghar.

3)      That the opposite parties to be directed to demand the balance consideration as per the payments schedule in paragraph number 4d of the agreement dated 29^th October 2014.

4)      That the opposite parties be directed to pay equivalent to the interest at the rate of 18% per annum from the dates of payment till possession of the said flat. Or in the alternative

5)      The opposite parties be directed to refund money 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 jointly and severally pay the complainant an amount of Rs.74,920/- as the reimbursement of the stamp duty, registration charges and miscellaneous expenses for registration of the agreement at the rate of 18% per annum with interest,

6)      That the opposite parties refund the money paid towards service tax, VAT and GST with interest at the rate of 18% per annum, that the opposite parties be directed to pay an amount of Rs.5 Lakhs towards compensation for the mental and physical harassment and Rs.35,000/- as cost.

7)      The complainant attached a copy of the receipt dated 12^th December 2010, a copy of bank statements showing realization of the cheques, a copy of Registered agreement for sale dated 29^th October 2014, copy of letter dated 24^th June 2017 received from the opposite party number 1, copy of letter due to 17^th April 2015 received from opposite party number 1, copy of letter dated 18^th March 2019 received from opposite party number 1 to the complainant.

8)      The complaint was admitted, and notice was issued to the opposite party. As the notice remained to be served due to the pandemic and resultant lockdown, an application was made to reissue the notice on 17^th March, 2021. The complainant filed a notice receipt and track report where the notice delivery was confirmed to the opposite party number 1. Application for substitute service to opposite party number 2 by paper application was allowed in the local newspaper of 18^th June 2022. The opponents failed to appear, and the matter proceeded exparte.

9)      The complainant filed an affidavit of evidence and written notes of argument.

10)    The opponent appeared on 12^th June, 2023 and filed an application for the production of documents on record. The application was allowed, and the opponents filed a copy of the order of the National Company Law Tribunal dated 20^th August 2019 and a copy of email correspondence dated 5^th May 2023 to the interim resolution professional.

11)    The complaint was perused along 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 be passed the following orders as under :

Reasons

12)    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 29^th October 2014 and registered on 5^th November 2014 with the total agreed consideration of Rs.8,83,575/-. The total amount paid by the complainant towards a flat cost is Rs.2,65,073/-. Thereafter, the complainant received a letter on 18^th March 2019 from opposite party no.1 stating that the opposite party no.1 has assigned rights to Sapphire Land Development Private Limited, which is opponent number no.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. In spite of the 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.

13)    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 N.CC/10/2020 is partly allowed.

2.       The opposite party no.1 and 2 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 A 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 & 2 are jointly and severely directed to pay Rs.2,65,073/- alongwith 12% interest from the date of filing of this complaint.

4.       The opposite party no.1 & 2 are jointly and severally directed to pay reimbursement of registration charges and miscellaneous expenses of Rs.74,920/-

5.       The opposite party no.1 & 2 are jointly and severally directed to pay the taxes paid of Rs.16,140/-.

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

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

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

9.       Members sets to be returned to the complainant.

10.     Copies of the order to be provided to the parties free of cost.