JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)

                The complainant/appellant initially booked a residential flat admeasuring 2200 sq. ft. with the OP in a building namely ‘Cleopatra’ to be constructed in Sector-15C of Navi Mumbai.  The sale consideration for the said flat was agreed at Rs.14,30,000/-.  Thereafter, the booking was shifted to another building namely ‘Maruti Park’ which the OP was to construct in Navi Mumbai, jointly with M/s Insha Construction Company and three flats bearing no. 502B, 503A & 302B, each admeasuring 623 sq. ft. of area were allotted to her, for a total consideration of Rs.22,00,000/-.  Since the possession of the flats was not delivered to her, the complainant approached the concerned State Commission by way of a consumer complaint, seeking possession of the said flat alongwith compensation etc. 

2.      The complaint was resisted by the OP which admitted the booking made by the complainant but alleged that they had some dispute with the owners and joint developers who had illegally denied them the use of the flats which were to come to them, including the flats allotted to the complainant.  It was also stated in the reply filed by the OP/respondent that not only the Civil Suit, they had also filed a complaint with the police in this regard.  The Civil Suit has been filed against the joint developer namely M/s Insha Construction Company and the owners. 

3.      The State Commission vide its order dated 19.03.2014, allowed the complaint giving certain directions to the OP/respondent.  During the course of its decision, the State Commission inter-alia observed that the OP had shown willingness to pay the market value to be calculated as per the stamp duty ready reckoner and the counsel for the complainant had inclined to accept the same.  It was also noted by the State Commission that the complainant had filed a copy of the ready reckoner.  The State Commission therefore, directed the OP to hand over possession of the flats to the complainant within 60 days from its order or in the alternative, pay an amount of Rs.72,92,460/- which had been calculated as per the ready reckoner, for a total carpet area of 173.63 sq. meters. 

4.      Being aggrieved from the order passed by the State Commission, the complainant approached this Commission by way of FA No.323 of 2014.  It was contended before this Commission that the counsel of the complainant before the State Commission had never expressed willingness to accept market value in lieu of the flats.  It was noted by this Commission that instead of filing an application pointing out to the State Commission that she had never agreed to accept the market value in lieu of the flats, the complainant had approached this Commission by way of an appeal.  Therefore, while dismissing the appeal filed by the complainant, she was given liberty to file an application before the State Commission, seeking appropriate correction in its order dated 19.03.2014, on the ground that her counsel had never agreed to accept the market value of the flats in lieu of the flats. 

5.      In compliance of the order of this Commission dated 08.12.2014, the appellant moved an application before the State Commission.  The said application having been dismissed vide impugned order dated 31.03.2016, the appellant/complainant is again before this Commission. 

6.      The appellant/complainant has filed an affidavit of Sh. Ajay Keshav Pawar, Advocate who had represented her on behalf of Sh. Anand Patwardhan, Advocate on 11.12.2014.  The said affidavit to the extent it is relevant, reads as under:

“2)       I say that during the argument, the Advocate for respondent made submission in lieu of possession of the flat, the respondents are willing to pay the price of the flats as per the current market price to be calculated as per the stamp duty ready reckoner.  I say that, I never agreed to the said proposal, however since the Advocate for the respondent made such submission, the Hon’ble State Commission, inquisitive about the market price asked both the parties to submit the copy of the stamp duty ready reckoner. 

3)         I say that I have never agreed or even gestured to accept the amount in lieu of the possession of the flats before the Hon’ble State Commission and I state that the insisted that the complaint was filed for possession and compensation for the delay only.”

7.      In view of the affidavit of Sh. Ajay Keshav Pawar, I proceed for the purpose of deciding this appeal, on the assumption that the learned counsel who had appeared before the State Commission on behalf of Sh. Anand Patwardhan, Advocate had not agreed to accept the market value of the flats in lieu of the flats booked by the complainant. 

8.      The next question which arises for consideration is as to what relief can be granted to the complainant if she is not willing to accept the market value of the flats in lieu of the flats booked by her.  The OP/respondent has filed an affidavit dated 28.11.2017 disclosing factual position with respect to the flats booked by the complainant in the building namely “Maruti Park”.  The aforesaid affidavit to the extent it is relevant reads as under:

“7.        I say that certain differences and disputes arose between this opposite party and the owner which was finally resolved by a settlement agreement dated August 2009.  This opposite party is entitled to several flats as set out in the suit filed by this opposite party before the Thane Court.  The owner in collusion with joint developer had illegally taken possession and had put their locks on the flats which was handed over in pursuance of the settlement agreement dated August 2009. 

8.         I say that to the utter shock and surprise, the locks were broken and representative of the opposite party and respective purchasers were restrained by the owner/developer from entering into the building and having access to the flats. 

9.         I say that criminal complaint was lodged before the JMFC, Vashi.  I further say Civil Suit being Special Civil Suit No.627 of 2010 was also filed at Thane Court against M/s. Insha Construction Pvt. Ltd. and the owner.  In the said Suit, following reliefs have been prayed:

            (a) The Suit agreement dated 19.09.2002, 28.08.2004 be ordered, decreed and declared to be legal, valid and subsisting and binding upon all the defendant no. 1 to 4;

            (b)       The settlement agreement dated August 2009 be ordered, decreed and declared to be legal, valid and subsisting and binding upon all the defendant no. 2 to 4;

            (c)        The defendants no. 1 to 4 be ordered, decreed and directed to specifically perform the agreements dated 19.09.2002 and dated 28.08.2004 and hand over the physical possession to the plaintiff of all the premises, stilts, car parking spaces belonging to the plaintiff within such time, in such manner and on such terms and conditions as may be directed by this Ho’nble Court.

            (d)       That it be ordered decreed and directed that the defendant no.1 has illegally given the possession of its share to its prospective purchasers, since the possession of the premises belonging to the plaintiff has not yet been given to the plaintiff;

            (e)       That it be declared that the defendant no.1 could not have given the possession of its premises to its purchasers without first giving the possession of the premises, stilts, car parking spaces belonging to the plaintiffs;

            (f)         That the defendants be ordered decreed and directed to render accounts of the various expenses incurred by them of the construction work and/or of the various permissions, certificates, connections obtained and/or various deposits made by them;

            (g)       The defendants no. 1 to 4 be ordered, decreed and restrained by an order of permanent perpetual injunction passed by this Hon’ble Court restraining and defendants their respective servants, agents, representatives, successors etc. from creating any third party right/interest and/or from parting with the premises, car parking, stilts etc. and/or any part thereof coming to the share of the plaintiff;

            (h)       The defendant no. 1 to 4 be ordered, decreed and restrained by an order of permanent perpetual injunction to be passed by this Hon’ble Court restraining and defendants, their respective servants, agents, representatives, successors etc. from dealing with, using, disposing off in any manner the premises, car parking, stilts etc. and/or any part thereof coming to the share of the plaintiff;

            (i)         The defendants no.1 to 4 be ordered decreed and directed by this Ho’nble Court to form the Co-operative Housing Society in respect of various purchasers, including the purchasers of the plaintiff, in respect of various premises constructed on the suit plot;

            (j)         The defendants no.1 to 4 be ordered, decreed and directed by this Hon’ble Court to convey the property i.e. the Suit plot as well as the premises constructed thereon in favour of the society which is to be formed as per above prayer causes;

            (k)        The defendants no.1 be ordered, decreed and directed to pay the damages to the plaintiff as per the particulars of claims annexed hereto and is marked as Exhibit “X”. 

            (l)         The defendants be ordered, decreed and directed to pay, jointly and severally, the damages to the plaintiff as per the particulars of claims annexed hereto and is marked as Exhibit “Y”.

10.       I say that notice of Lis Pendis is also registered with the Sub-Registrar, Thane so that property is not transferred.  I say that it was already stated in the written statement that this opposite party is ready and willing to hand over possession, however, in view of the aforesaid facts, the possession could not be given as the same were illegally taken by the owners and joint developers in collusion with each other.”

          It is thus evident that the physical possession of the flats booked by the complainant is no more with the OP.  There is an ongoing dispute between the OP, the joint builder M/s Insha Construction Company and the owners of the land, before a Civil Court in Thane.  It is not possible for the OP to deliver possession of the flats booked by the complainant unless it succeeds in the Civil Suit filed by it and the physical possession of the flats booked by the complainant is actually restored to it. 

9.      This Commission therefore, cannot ensure delivery of possession of the aforesaid flats to the complainant under the provisions of the Consumer Protection Act.  If an order is passed directing the OP to deliver possession of the aforesaid flats to the complainant, such an order will be incapable of execution.  No Court/Forum is expected to pass an order which it knows before-hand, to be incapable of execution.  Therefore, the prayer for a direction to the OP/respondent to deliver possession of the aforesaid flats to the complainant cannot be granted. 

10.    During the course of hearing, I had given an option to the complainant to withdraw the complaint with liberty to file a complaint if and when the OP obtains the physical and vacant possession of the flats booked by her.  The aforesaid offer however, is not acceptable to the complainant, whose attorney namely Mr. Kamal Kapoor is present in the court.  In these circumstances, the only relief which can be granted to the complainant is payment of adequate compensation in lieu of the flats booked by her. 

11.    The learned counsel for the complainant submits that the compensation based upon the ready reckoner does not reflect the correct market value of the flats and therefore, will not suitably compensate the complainant.  I however, find no merit in the contention.  The ready reckoner is issued by the Government of Maharashtra and is revised on an annual basis.  The State Commission has verified the market value of an area admeasuring 173.63 sq. meters which comes to about 1800 sq. ft. of carpet area, from the ready reckoner for the relevant period.  The same was the carpet area of the flats booked by the complainant.  Therefore, the compensation awarded by the State Commission does not call for any enhancement by this Commission in exercise of its appellate jurisdiction.

12.    The learned counsel for the appellant states that no compensation has been awarded to the complainant/appellant for the mental agony and harassment caused to the complainant.  Considering all the facts and circumstances of the case, I award a sum of Rs.5,00,000/- as additional compensation to the complainant/appellant, taking into consideration the mental agony and harassment alleged to have been caused to her.  The aforesaid amount will be tendered to the complainant/appellant within six weeks from today alongwith interest awarded by the State Commission.  No interest would be payable on the additional compensation of Rs.5,00,000/- provided it is tendered within six weeks from today failing which it will also carry interest @ 9% per annum from the date of this order.  It is also made clear that if the compensation is offered to the complainant and is refused/not accepted, the OP/respondent will not be liable to pay any further interest from the date of this tender.  The appeal stands disposed of.