1) This is an appeal filed by the original O.P. in consumer complaint No.CC/472/2019 before District Consumer Commission Nagpur, against the order passed by learned District Consumer Commission Nagpur on interim application filed by original complainant in Execution Case No.M.A.No.7/2021 in consumer case No.472/2019 order dated 06/08/2021 in which learned District Consumer Commission allowed the Miscellaneous Application of the complainant and directed the O.P. to pay Rs.1,00,000/- in legal aid and cost of Rs.20,000/-. Aggrieved by this order on the interim application by the complainant, the original O.P. has filed appeal before this Commission.
2) Brief facts for deciding this appeal are as follows :-
The appellant is M/S. FIRE ARCOR INFRASTRUCTURE PVT. LTD. who is a company incorporated under the Companies Act 1956 which is in the business of residential and commercial products of the integrated township spread over approximately 150 acres of land which is name and style as “The Empyrean”. The appellant has under taken the development and construction of residential scheme on one of the piece of non agricultural land admeasuring 60.59 acres situated at Village Kotewada in Tahsil Hingna, District Nagpur. The respondent/original complainant had purchased residential unit bearing No.M-10/12 A.B. MIDS in the Empyrean Vista in the township of appellant and the parties enter into an agreement to sell on Dt.18/01/2013. The complainant filed a consumer complaint bearing No.CC/472/2019 against the O.P., appellant in this appeal for the grievance with regard to maintenance charges being collected as well as facilities and amenities that were prevalent in the township. During the pendency of the complaint, the original complainant filed an interim application praying for directing the O.P. to restore electricity supply in the common area of the building and also water supply in the individual tank. The appellant resisted this application since as per the contention of the appellant despite repeated demands to the flat purchasers they were not paying maintenance and on account of non payment of the dues the MSEDCL disconnected the electricity supply. On hearing both the parties, learned District Consumer Commission on 11/02/2020 passed interim order directing the original O.P./appellant to pay the electricity bills and restore the electric supply as well as water supply in the common area. Further the complainant filed another interim application in the consumer complaint before the District Consumer Commission Nagpur with prayer that the O.P. to pay electricity bills and water bills to restore the electricity as well as water supply to the common area alongwith builder and developer to provide maintenance and facilities of labour. The learned District Consumer Commission Nagpur passed another interim order on 17/02/2021 and directed the builder, developer to provide maintenance and facility of labour in addition to payment of electricity bills and water charges. Both these interim orders were challenged by the present appellant in separate revision petitions. The original complainant in consumer complaint No.472/2019 filed execution application Under section 72 for execution of the interim orders by learned District Consumer Commission Nagpur. Learned District Consumer Commission Nagpur passed an order in this execution application M.A./7/2021 and allowed this application also directed the O.P. to pay Rs.1,00,000/- within 7 days to the legal aid of the District Consumer Commission Nagpur and Rs.20,000/- as cost to the complainant. Aggrieved by this order the O.P. filed present appeal before this Commission. We heard the rival submissions and arguments advanced by learned advocates of both parties and perused the record.
3) Learned advocate for the appellant invited our attention to the notification issued by State Government of Maharashtra, Nagpur Division supplement (reference page No.101, Annex.D) Dt.16/03/2006, Dt.20/11/2018 and Dt.08/03/2019. According to him in the notification Dt.20/11/2018 as per para No.10 and specifically para No.10.3 that shall the responsibility of the promoter of the project to develop and maintain all the infrastructures in good condition till handing over to the appropriate authority, (Reference page No.126). In the same notification para 14 spells out transition policy. Further as per the latest notification Dt.08/03/2019 on para 10.3 and 14 the transition policy has been explained in detail. Learned advocate further submitted that the copy of the agreement to sell Dt.13/12/2014 i.e. separately filed, reference page No.33 schedule of payment has been given. Non payment by the respondents as per the schedule of payment is the point of dispute and in case the dispute arises it is specifically mentioned on page No.33 that the flat purchasers should pay for electricity, gas and water connection as applicable. The appellant/original O.P. had already filed reply to the interim application filed by the original complainant before the District Consumer Forum now Commission. The appellant had opposed this interim application as the parties have agreed that as per the Government notification that the flat purchasers will be liable to pay for the electricity and water charges. The appellant/original O.P. while defending the complaint and interim application specifically already have taken stand that the Forum/Commission can not re-write contract and hence the terms in the agreement between the parties are binding on both the parties. Learned advocate for the appellant submitted that the learned Forum/Commission cited Section 6 of Maharashtra Ownership of Flats Act. According to which it is the liability of the builder/promoter/developer to pay all the necessary charges like electricity charges/ water charges, but learned Forum/Commission ignored the judgments that were cited in which there is clear cut view that the agreement can not be rewritten once signed. Learned Forum/Commission has failed to understand that the liability of the flat purchasers according to the agreement can not be written off and also ignored the application filed by the appellant/original O.P. for directing the complainant to pay maintenance during the pendency of the present complaint. Further the appellant is trying to and comply its liability, but since the appellant is developing township it is a huge task to complete the liability. He further invited attention of Bench to page 2(1)(2) in which is Society Registration Certificate. Thus the appellant is already trying to complete its responsibility. Further the advocate for appellant invited our attention to further errors by the learned Forum/Commission. In the execution application filed by the original complainant, it is against the respondent No.2 though it should have been against the company and respondent No.2 is not party to the complaint before the District Consumer Forum/Commission also the learned Forum/Commission has wrongly apply Section 72 when the complaint was filed under the Consumer Protection Act 1986 and not under the Consumer Protection Act 2019. As per submissions of the learned advocate for the appellant the order in interim application is illegal in which the Forum/Commission has order the payment of Rs.1,00,000/- in the Legal Aid of the Consumer Forum/Commission. When the appellant approached to Hon’ble Bombay High Court Bench at Nagpur the order Dt.18/08/2021 in Crime Writ Petition No.590/2021 which was filed by the present appellant against the present respondent , the Hon’ble Bombay High Court, Bench at Nagpur passed an order that there shall be ad-interim stay in terms of prayer clause No.(e) subject to petitioner continuing compliance with the direction of the District Forum/ Commission. Further in the same petition the Hon’ble Bombay High Court Bench at Nagpur passed the order Dt.14/09/2021 by which the petition was disposed o ff with liberty to petitioner to avail alternative remedy but point No.6 of the order says that the interim order Dt.18/08/2021 is further continued till next three weeks provided the petitioner completes the direction issued by the District Forum/Commission. As per the submissions of the learned advocate for the appellant, appellant has already complied the order of the District Forum/Commission according to which already society was registered and compliance report also was filed by the present appellant before the District Consumer Forum/Commission of Nagpur. In view of the compliance report, the execution application filed by the original complainant/respondent in this appeal is questionable and not tenable under the law. Further the learned advocate referred to rulings from Hon’ble National Commission and Hon’ble Supreme Court as under ;
i) Shree Ambica Medical Stores ….V/s……Surat People Co-
operative Society, reported in 2020(13) SCC 564.
ii) Dr.Amitabha Sen……..V/s……Raj Singh Gelhlot, reported in
2021 SCC online NCDRC 23.
iii) Soni Babubhai …..V/s…..State of Gujarat, reported in (1991) 4
SCC 298.
iv) Jayeshbhai Rana ……V/s……State of Gujarat, reported in 2014
SCC Online Guj 12424.
v) CIT …..V/s…….Vatika Township PVT.Ltd, reported in (2015)
1SCC 1.
vi) Prachi Mathur …..V/s……TDI Infrastructure, delivered on
08/10/2020 by State Consumer Commission Delhi.
vii) Madhusudhan Reddy……V/s…..VDB Whitefield, reported in 2022
SCC online NCDRC 13.
viii) GHCI Employees Stock Option Trust…….V/s……Indian Inforline
Ltd, reported in (2013) 4 SCC 505.
4) So in view of the arguments advanced by learned advocate for the appellant and the ratios of judgment and rulings filed on record, learned advocate for the appellant prayed for setting aside the order passed by the learned District Consumer Forum/Commission in interim application filed by the original complainant.
5) Learned advocate for respondent who is original complainant before the District Consumer Commission Nagpur invited attention of this Commission to the objection raised by appellant against the order that was challenged by the appellant and this involves three issues. (i) It is not within limitation, (ii) It is under old Act i.e. Consumer Protection Act 1986 and (iii) Whether the director of the company can be made party ?. While answering to the submissions of learned advocate for the appellant, advocate Mr.Mandlekar submitted that the issue of execution being filed whether U/s 27 of Consumer Protection Act 1986 or Section 72 of Consumer Protection Act 2019. This issue is yet to be settled though there is difference in fine awarded U/s 72. Learned advocate further submitted that the District Consumer Commission Nagpur passed first order on interim application on 11/02/2020 (page No.189 of compilation) in which the interim application was allowed and the present appellants were directed to pay electricity bills for reconnection of the electricity and water connection supplied to the common area in the building. By second order Dt.17/02/2021 (Annex.K Page No.224) learned District Consumer Commission allowed the application filed by original complainant in relation with Annex.16 and Annex. 18 and the order was to comply the first order Dt.11/02/2020 and additionally the lift service to be restarted within 10 days. These two orders show that the appellant/original O.Ps. have not complied with the first order itself for the period more than one year from the date of passing of the order and hence the respondent in this appeal filed execution application on 23/06/2021. Since second order was passed after implementation of the Consumer Protection Act 2019 the execution was obviously filed U/s 72 the issue raised of limitation by the appellant is not relevant as there is no limitation period for filing execution. He referred to the ruling of Godson Housing Development Co. and another……..V/s…….Sukhdeo Ganbaji Poratkar (cited supra) Further Section 107 of the Consumer Protection Act 2019 has given window of overlapping between Consumer Protection Act 1986 and 2019. Hence issue of limitation and filing of the execution under new Act does not arise. According to learned advocate for respondent the director of the company can be made party as per the order of Hon’ble Supreme Court of India and also under MOFA as well as RERA, the statutory provisions always prevail over clause in the agreement. Hence while replying to the submission of the advocate for the appellant that “there was specific clause in the agreement,” that gives right to the builder. promoter and developer to collect maintenance charges and other charges for any other expenses from the flat purchasers. Learned advocate for respondent further submitted that the legal provisions under the MOFA Act supersede any clause in the agreement and hence till the legal possession of the flat is handed over to the flat purchasers it is the responsibility and liability of the builder, developer and promoter to pay all the charges in relation with the building constructed and hence according to him the order passed by learned District Consumer Commission Nagpur is as per the legal provisions in the MOFA Act. Similarly, the execution application filed by the original complainant is maintainable, since the execution application can be filed under the provision of the Act for executing any of the order of the Commission. He further referred the order passed by Hon’ble High Court that in which Hon’ble High Court has asked the appellant to comply the order passed by learned District Consumer Commission in interim application filed by the complainant. According to the learned advocate for the respondent the original complaint is still to be decided by the District Consumer Commission and the orders already passed by the learned District Consumer Commission are just legal and proper, hence he prayed for dismissal of the appeal. In support of his submissions learned advocate for respondent referred the following citations of Hon’ble Supreme Court and Hon’ble National Consumer Commission;
- Godson Housing Development Co. and another ……..V/s…….Sukhdeo Ganbaji Poratkar, reported in 2019 SCC Online NCDRC 1047.
- Prem Chandra Varshney…….V/s……Murarilal Sharma and others, decided by Hon’ble National Consumer Commission on 12/09/2007.
- Ravi Kant…….V/s……National Consumer Disputes Redressal Commission, reported in 1997 (40) FRJ (DB) Delhi High Court.
- Mr.Tonse.N.M.Rai…..V/s…..All Goa Manipal Finance Group, Reported in 2012 SCC OnLine NCDRC 225.
- Sanjay Malviya……V/s…..Siddharth Enterprises and another, reported in I(2008) CPJ 74 (NC).
- Ashish Ramchandra Birla and others…..V/s….Muralidhar Rajdhar Patil and others, reported in I(2009) CPJ CPJ 200 (NC).
- Brig.(Retd.) Rakesh Dhir and another……V/s…..M/sParsvanath Developers Ltd, decided by Hon’ble National Consumer Commission on 15/01/2021 in Execution application NO.269 of 2019 in CC/107/2015.
- Sanjay Chandra and others ……V/a……State Govt. Of NCT of Delhi and others, reported in 2018 SCC Online SC 3685.
- Avinash Gopal Sharan Sinha……V/s……Unitech Ltd. New Delhi, Decided by State Consumer Commission Punjab,(Chandigarh on 14/06/2017.
6) In reply to the legal points raised by learned advocate for respondent, advocate for appellant invited attention to the Bench to Section 14 of the Limitation Act which says that the period for filing
execution application is within 30 days. Further he also submitted that while granting relief under interim application learned District Consumer Commission has granted almost more than 75% of the relief that was prayed for by the complainant in the original complaint, which again is not legal and proper. Hence he reiterated that the appeal should be allowed and the order passed by the District Consumer Commission needs to be set aside.
7) We have heard the submissions made by learned advocate for both parties. Perused the order on the M.A.No.7/2021 passed by learned District Consumer Commission Nagpur Dated 06/08/2021. The legal position in the present dispute over the order passed in the said M.A. is quite clear. As per Section 6 of MOFA, A promoter shall, while he is in possession and where he collects from persons who have taken over flats or are to take over flats sums for the payment of outgoings even thereafter, pay all outgoings (including ground) rent, municipal or other local taxes, taxes on income, water charges, electricity charges, revenue assessment, interest on any mortgage or other encumbrances, if any, until he transfers property to the persons taking over the flat, or to the organization of any such persons, where any promoter fails to pay all or any of the outgoings collected by him from the persons who have taken over flats or are to take over flats, before transferring the property to the persons taking over the flats or to the organization of any such persons, the promoter shall continue to be liable, even after the transfer of the property, to pay such outgoings and penal charges (if any) to the authority or person to whom they are payable and to be responsible for any legal proceedings which may be taken therefore by such authority or personal.” The builder, developer and promoter is liable for payment of all taxes, electricity charges, water charges till he is in possession and meaning that the legal possession of the flat is handed over to the flat purchaser. In the present dispute the appellant wants the implementation of the clause in the agreement which according to him empowers to collect the expenditure like electricity, water charges and other taxes as previously discussed. The provisions in MOFA supersede any clause in the agreement to sale rather no builders, developers, promoters can include clause in the agreement which is contrary to the provisions in MOFA. On perusal of the order passed by learned District Consumer Commission Nagpur it has considered the same legal provision. In our view order passed by the learned District Consumer Commission Nagpur is just legal and proper. In view of the above discussions we pass the following order.
// ORDER //
- Appeal is hereby dismissed with costs quantified to Rs.1,00,000/- to be paid by the appellant to the respondents within period of two weeks from the date of receipt of copy of this order.
- Copy of this order to be given to all the parties free of cost.
