BEFORE:

HON’BLE MR. SUBHASH CHANDRA, PRESIDING MEMBER

For the Appellant         APPEARANCE NOT MARKED

For the Respondent      Mr K K Manan, Sr Advocate with Mr Ritesh Khare,

                                Mr Akhilesh, Ms Karmanya and Mr Palash,

                                Advocates

ORDER

1.           This Appeal Execution arises from an interim order of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (in short, ‘the State Commission’) dated 12.05.2023 in complaint case no. C/2013/24 which was disposed of by the State Commission vide order dated 20.09.2021, directing the appellant herein as under:

12.     While accepting the complaint, the opposite parties are directed that:

(a)     The order cancelling the allotment of Flat no. R 1205 PAN Oasis Sector 17 is set aside. The allotment in favour of the complainant will remain the same. The opposite parties are directed to hand over possession o the above mentioned flat within 3 months after depositing of the amount of Rs.46,00,000/- by the complainant returned to him and the balance amount payable at the time of possession. It is clarified that no interest will be received by the opposite party nor interest will be calculated on the remaining amount due on the complainant, because the action of cancelling the allotment illegally has been done by the opposite party. If the above amount is not deposited by the complainant within three months, then the opposite party will not be bound to hand over the possession of the above mentioned flat to the complainant.

(b)     If the allotment/possession of the flat mentioned above, has been handed over to any other person by the opposite party, then another flat of the same area be given to the complainant at the same cost and a sum of Rs.55,00,000/- be deposited in the office of the opposite party by the complainant within three months.

(c)     If the opposite parties opt that no flat can be allotted to the complainant, then in addition to the amount refunded to the complainant, the difference of the current market value be refunded to the complainant. The difference amount will be assessed by the valuer authorised by the State Government. The report of the valuer shall be received within three months. The honorarium fee etc., payable to the valuer shall be borne by the opposite parties.

(d)     The opposite parties shall provide compensation of Rs.5,00,000/- to the complainant on account of mental, physical and social harassment. The amount should be paid to the complainant within 3 months. This amount can also be adjusted in the principal amount to be paid by the complainant.

(e )    A sum of Rs.10,000/- to be paid by the opposite parties to the complainant as litigation costs.

2.     I have heard the learned counsel for both the parties and have carefully perused the material on record.

3.     Briefly put, the facts of the case are that the respondent had booked a flat no. R-1205 admeasuring 1600 sq ft in the appellant’s project, Pan Oasis, Sector 70, Noida, as per allotment letter dated 21.01.2012, for a sale consideration of Rs.54,68,000/-. A Purchaser Agreement was executed between the parties on 27.01.2012 and a sum of Rs.46,00,000/- was deposited by the respondent with the appellant, leaving a balance of Rs.8,68,000/- to be paid at the time of handing over the physical possession. However, on 18.12.2012 the appellant cancelled the allotment made to the respondent and refunded the sum received from it on 17.12.2012. The respondent approached the State Commission by way of Complaint No. 24 of 2013 alleging the action of cancellation to be illegal, arbitrary, unfair and contrary to the principle of justice. The complaint was decided ex parte by way of order on 05.10.2021 against the appellant and the appellant was directed to restore the allotment and hand over the possession within three months after collecting Rs.46,00,000/- along with the amount payable at the time of possession without levying interest thereon. It was also directed that in case the deposit was not made by the complainant within three months, the opposite party would be bound to hand over the possession. It was further ordered that in case the Opposite Party (Appellant herein) states that no flat could be allotted to the respondent, then, in addition to the refund of the complainant the difference of current market value would be refunded to the respondent as assessed by a valuer authorised by the State Government within three months with compensation of Rs.5.00 lakh and Rs.10,000/- as litigation charges.

4.     The present appeal execution arises from the interim order dated 12.05.2023 of the State Commission, in Execution Application filed by the respondent before the State Commission. As per this order, the appellant has been directed as under:

From the perusal of the impugned order, it is clear that the possession of the flat in question should be given by the opposite party after depositing the amount returned to the complainant and depositing the remaining due outstanding amount. According to Clause (c ) of the judgment, after calculating the difference between the then and the present market value the differential sum shall be deposited. Therefore, the Judgment Debtor shall finally inform the Decree Holder in writing within one month that whether he is able or unable to give the flat. Thereafter, further action will be taken. If he is able, then how much amount will have to be deposited beyond Rs.46 lakh, but it should be kept in mind that no interest will be levied on the remaining amount as stated in the judgment.

[ Emphasis added ]

5.     The contention of the appellant in the appeal execution filed is that the State Commission has ventured beyond the scope of the judgment and by way of the impugned order has directed the appellant to inform the respondent in writing within one month whether the appellant is able or unable to hand over the possession of the flat in order to take further action thereafter in terms Clause ‘C’ of the judgment. It is contented that this direction is in disregard to the fact that the State Commission’s order dated 05.10.2021 which had specifically directed under Clauses (a) and (b) that the respondent would pay Rs.46 lakh as well as additional charges within three months in case he was willing to get obtain the possession of the unit in question. It is contended that there was a further direction that if the above amount was not deposited by the respondent within three months the appellant would not be bound to hand over the possession. In case the appellant opted that no flat could be allotted, only then, compliance of Clause C would come into operation.

6.     It is evident from the order dated 05.10.2021 of the State Commission while setting aside the cancellation the allotment of Flat no. R 1205 allotted to the respondent that the State Commission had directed the appellant to hand over the possession within three months of the order after the deposit of Rs.46 lakh by the respondent to the appellant without any interest being imposed on the payment. It is also evident that the order was explicit that if the above amount was not deposited within three months, the OP/appellant (herein) would not be bound to hand over the possession of the flat to the respondent.

7.     From a plain reading of the order of the State Commission, it is apparent that the respondent was eligible to seek possession of the flat as per the order, if within three months deposited the amount of Rs.46 lakh that had been returned to him was paid to the Appellant.. If however, this amount was not deposited within three months, the OP/appellant (herein) would not be bound to hand over the possession of the flat to the respondent. The appellant has not brought on record any details of whether the amount of Rs.46 lakh has been paid within the stipulated three months along with the balance amounts. In the absence of this amount being paid, the appellant contended that he is also not bound to hand over the possession of the flat. It is therefore, further contended that the stipulation of one month time by the State Commission directing him to intimate whether the flat would be handed over or not is a direction which is beyond the decree which is sought to be executed by the respondent before the State Commission.

8.     From the facts of the matter and the submissions made before us, it is apparent that neither the respondent has not paid the amount as directed by the State Commission nor has the appellant conveyed whether it wishes to offer the possession or opt out of the directions to hand over the possession to the respondent. It is for this reason that the State Commission has directed the appellant to indicate whether or not it is able to comply with the directions in Clause C of the order.

9.     From the above, it is apparent that the interim order of the State Commission in seeking an undertaking from the appellant under Clause C is beyond the scope of the decree under execution. It has to implement and execute the decree is strictly in terms of the decree and cannot travel beyond it or go behind the decree. The directions of the State Commission to the respondent is to deposit the money agreed upon as the sale consideration without interest within three months and for the appellant to make an offer of possession thereupon. Subsequent directions in sub-Clause B and C are consequences that would follow consequently.

10.   In view of the foregoing the interim order of the State Commission dated 12.05.2023 is held to have been made in error and is therefore set aside. Parties are directed to appear before the State Commission on    08/11/ 2024 and the State Commission is directed to proceed with the execution application before it, strictly in terms of its order dated 05.10.2021. The Appeal Execution is disposed of with these directions.

11.   Pending IAs, if any, also stand disposed of by this order.