1.      This appeal arises out of the order dated 28.02.2024 passed by the State Consumer Disputes Redressal Commission, Maharashtra in CC/599/2014 whereby the complaint filed by the respondent has been allowed granting the relief of possession of flat No.602 admeasuring 625 sq. ft. approximate built up area on the 6^th floor of Sai Palace (now known as Om Sai Palace) at survey No.79 (new survey No.57, Hissa No.2) situate at village Goddev, Taluka Thane, Maharashtra to the complainant within a month of the passing of the order. The appellants have been jointly and severally directed to pay compensation in the form of interest @ 9% p.a. on account of delay in handing over the possession till the actual date of handing over of possession as per the time indicated hereinabove, and on failure thereof, the rate of interest would stand enhanced to 12% p.a.

2.      They have been jointly and severally directed in the alternative to pay the current market value of the said flat to the complainant and to determine the same in accordance with the valuation report from the office of the Sub-Registrar that will be looked into at the time of the execution. 

3.      A sum of Rs.5/- lacs for mental and physical agony was also awarded with Rs.50,000/- as cost of litigation.

4.      The builder/developer has filed this appeal and the following order was passed on 05.06.2024: -

“Heard learned Counsel for the Appellant.

The Appeal has been opposed through Caveat and the learned Counsel for the Caveator / Respondent is also present online.

After having heard the learned Counsel for the Appellant at length prima facie none of the grounds raised in the Appeal call for any interference at the instance of the builder who has, after having received more than 75% of the consideration money, failed to deliver the premises to the Respondent and not only this, has also sold off the property to a 3 rd party. This further compounds the conduct of the builder in denying the fruits of the small investment made by the Respondent aspiring to have a roof over his head.

Learned Counsel prays that he may be permitted to obtain instruction for making a reasonable offer to the Respondent. As prayed let it be done within four weeks.

List for Directions / Admission on 05.08.2024.”

This order was followed by an order dated 14.08.2024, which is extracted herein under: -

“Learned counsel for the Appellant states that the affidavit as desired by the earlier order stating the offer has been prepared and a copy thereof has been served on the learned counsel for the respondent yesterday.

Let the affidavit be filed before the Registry within a week. Learned counsel for the respondent may obtain the instructions and file his response, if any, to the said offer within two weeks.

List on 25.09.2024 for directions.”

5.      In essence there is a complete denial on behalf of the appellants for offering possession of the flat as it has already been sold to a third party for which a defence has been taken, and it is otherwise urged, that the booking of the complainant was cancelled as he had failed to comply with the payments that were due. The shortage in payment is admitted to the complainant and in such circumstances the resale of the flat to a third party was nowhere impeded. It is submitted that the builders were well within their right to negotiate the property and there was no injunction operating against them when the property was resold and in fact the property had been negotiated with the subsequent buyer when there was no legal impediment. As a matter of fact it was sold even before the institution of the complaint before the State Commission or any orders passed thereon.

6.      At the outset it would be appropriate to record that in compliance of the orders dated 05.06.2024 and 14.08.2024 extracted hereinabove the appellants have come up with a copy of the letter dated 11.08.2024 sent by their advocates to the complainant which is extracted herein under: -

“To,

1. Subhash Ramjang Chourasiya
2.  

9/58, Digvijay Mill Compound,

Patra Chawl, Dattaram Lad Marg,

Kalachowki, Mumbai-400033.

2. Adv. Mohit P. Bhansali

Advocate for Respondent

U/4, A-wing, Ramkunj,

Co-operative Housing Society Ltd.

Opp. Mahanagar Gas Pump, Khopat,

Thane (W), Thane-400601.

Email: Mohitbhansali2016@outlook.com:

(hereinafter collectively referred to as “you”,

“yourself” and “respondent”)

          Ref:  BEFORE THE HON’BLE NATIONAL CONSUMER DISPUTES

                   REDRESSAL COMMISSION, NEW DELHI

                   FIRST ALPPEAL  NO.304 OF 2024

                   M/s SAI KRUPA BUILDERS & ORS.             1--- Appellants

                   VS.

                   SUBHASH RAMJANG CHOURASIYA 1---Respondent

1. Letter dated 19^th June 2024 addressed on behalf of Appellants to your (1^st Letter);
2. Email dated 22^nd June 2024 addressed on behalf of Appellants to yourself;
3. Letter dated 23^rd July 2024 addressed on behalf of Appellants to  yourself (2^nd Letter);
4. Email dated 23^rd July 2024 addressed on behalf of Appellants to yourself;
5. Letter dated 27^th July 2024 addressed by you on behalf of Respondent to the Appellants (your letter);
6. Letter dated 4^th August 2024 addressed on behalf of the Appellants to you via email (3^rd Letter):

Subject:      Letter of compliance of order dated 5^th June 2024 and 5^th August 2024 of the Hon’ble NCDRC proposing settlement offer

WITHOUT PREJUDICE

          Sir,

          We write to you upon instructions of my clients as under:

1.      We say that the above captioned Appeal is filed by my clients against the order dated 28th February 2024 ("impugned order") passed in the Consumer Complaint No. 599 of 2014 ("present consumer complaint") filed before the Hon'ble State Consumer Disputes Redressal Commission, Maharashtra ("SCDRC") for seeking reliefs as prayed therein, in respect of Flat No. 603, admeasuring 625 Sq. Fts. 6th Floor. Sai Palace, on land lying and situated at Old Survey no. 379, New Survey No. 57. Ilissa No. 2. at village Goddev. District-Thane ("said flat"), arising out of Agreement for sale dated 2nd August 2007 executed between Mr. Subhash Ramjang Chaurasia and the Appellants ("said Agreement").

2.      As per the said Agreement, more particularly as per clause 3 of the said Agreement. Respondent was obligated to pay a sum of Rs.7,50.000/- (Rupees Seven Lakhs Fifty Thousand Only) as the entire consideration ("total amount") in respect of the said flat. It is an admitted position that as on date, a sum of Rs.1.50,000/-("balance payment") out of total amount is due and payable by you in respect of the said flat in terms of the said Agreement.

3.      As per clause 4 of the said Agreement, you had also agreed that time for payment of total amount was the essence of the said Agreement. It was agreed that in the event of default in making payment towards the total amount, the Appellants were entitled to terminate the said Agreement and in such event, the Appellants were entitled to refund the Respondent money paid by him without any interest.

 4.     ……….

 5.     As per clause 19 of the said Agreement, it was also agreed between the parties that all the amounts payable under the terms of the said Agreement shall become due and payable forthwith as the time is essence of contract. It was agreed that Appellants shall not be bound to give any notice regarding such payment and failure of which shall not be pleaded as an excuse for non-payment of any amount under the said Agreement.

6.      In the present case, it is undisputed that the entire building including the said flat under the said Agreement was ready and complete in all respect in the year 2009. Large number of allotees/flat purchasers had already taken possession of their respective flats in the year 2009 itself. However, unfortunately despite our repeated requests, reminders, persuasion and physical meetings before and after the completion of the said building in 2009, you have failed to come forward much less showed any inclination or interest to pay the balance sale consideration and take the possession of the said flat. Admittedly, despite being aware of the said terms of the said Agreement you have failed to make the balance payment towards the said flat.

7.      In light of such circumstances, my clients were constrained to terminate the said Agreement on 8th April 2010 due to non-payment of the balance consideration. which is undisputed as on date. Thereafter, my clients vide letter dated 6th April 2011 called upon you to take the refund of amount paid by you. However, you have neither come forward to take the refund nor come forward to pay the balance consideration, whatsoever.

8.      In the meanwhile, after the termination of the said Agreement and exercising the rights under the said Agreement. my clients were constrained to sell the said flat to one Mr. Subhash Tilakdhari Pathak vide agreement dated 12th April 2011 whichwas later registered in January 2012. The said flat was sold to Mr. Subhash Tilakdhari Pathak before the filing of a Consumer Complaint No. 240 of 2011 on 21 April 2011 before the Hon'ble District Consumer Forum. Thane (DCF), The Hon'ble DCF was apprised about the said development by my clients at the outset out of bonafide.

9.      Simply aggrieved by the alleged actions, you filed the Consumer Complaint No. 240 of 2011 before the Hon'ble DCF which was later withdrawn without any liberty and the present Consumer Complaint before the Hon'ble SCDRC came to be filed. The Hon'ble SCORC was then pleased to pass the abovementioned impugned order which is under challenge today before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi (NCDRC")

10.    Be that as it may, without prejudice to the rights and contentions of the Appellants and pursuant to the order dated 5 ^ (1h) June 2024 passed by the Hon'ble NCDRC. we reached out to you to conduct a without prejudice meeting to arrive at a settlement. We had addressed multiple correspondences i.e. on 19^th June 2024, 23rd July 2024 and via emails on 23 July 2024 and 22^nd June 2024 in order to arrive at a settlement, however we did not receive any response to our letters and emails. It is only on 30^th  July 2024, a response dated 27^th July 2024 was received from you. wherein you have incorrectly alleged that we have not made any efforts to make a reasonable offer to you as per the order. Thereafter. in response to your letter, we addressed a letter dated 4th August 2024 on your email id wherein we have categorically denied any such allegations and again called upon you for a discussion in order to amicably resolve the issue arising out of the present consumer case. However, having received no response. we were constrained to inform the Hon'ble NCDRC in this regard on 5^th August 2024.

11.    In light of the above circumstances and pursuant to the order dated 5th August 2024 of the Hon'ble NCDRC, we propose to you a complete refund of the consideration amount of Rs.6.00.000/- (Rupees Six Lakhs Only) paid by you to the Appellants as on date along with interest at the rate of 8% per annum, from the date of respective payments made till the date of actual payment, on the balance amount paid by you. In such event, we request you to inform about your decision on or before the next date of hearing in this regard.

12.    We look forward to have an amicable settlement between the parties. Needless to mention this is without prejudice to the rights and contentions of the parties.

Thanking you !

Dated this 11^th day of August 2024”

7.      A perusal of the said letter indicates the denial of the allegations but offering a proposal in paragraph-11 of the above-quoted letter to refund the amount of Rs.6/- lacs paid by the complainant that is admitted to the appellants, together with interest @ 8% p.a. from the date of respective deposits till the date of actual payment. This has been responded to by an affidavit of the complainant denying each and every allegation and urging that no compliance worth the name by any reasonable standard has been made by the appellants in response to the orders passed by this Commission. It has been reiterated in the reply that the complainant had been subjected to an unfair trade practice and that the services of the appellants were deficient. It is also urged that the appellants had earlier threatened the complainant and a criminal case had been launched but at the same time it is also urged that the complainant was ever willing to pay the balance amount for which no demand was raised by the appellants and hence any cancellation resorted to of the booking was illegal and an arbitrary act on the part of the appellants. It is also stated therein that the complainant has been waiting for 17 years and he cannot afford to buy a new flat as such the offer of refund is absolutely useless for the complainant as made through the letter quoted hereinabove. It has been prayed that the appeal be dismissed.

8.      It is in this background that the learned counsel for the parties have advanced their submissions and to begin with Mr. Madhurendra Kumar, learned counsel for the appellants has urged that the complainant had originally filed the complaint before the District Commission at Thane being CC/250/2011 which was withdrawn and, therefore, the complaint giving rise to this appeal ought not have been entertained.

9.      As a sequence to this argument, he also states that the complaint was beyond the time prescribed and, therefore, was barred by limitation.

10.    Another sequel to this argument is that the State Commission on a simple calculation had no pecuniary jurisdiction to entertain the claim and hence the claim ought to have been dismissed for complete lack of pecuniary jurisdiction.

11.    He then submits that the complainant had not paid the entire desired amount and was in default. According to the arguments, the appellants were entitled to terminate the contract which was lawfully done as there was a clear default on the part of the complainant.

12.    He then submits that there was no restraint or any legal impediment in the negotiation of the property as the appellants were not bound to endlessly wait in the wake of the dwindling value of real estate in those days as such the appellants were fully justified in dispensing with the property with a third party.

13.    He then contends that it was the complainant who defaulted in making the payment, therefore, no relief was admissible, yet ignoring all these aspects as urged hereinabove, the State Commission has erroneously allowed the complaint, hence the impugned order dated 28.02.2024 deserves to be set aside and the complaint deserves to be dismissed.

14.    Learned counsel for the respondent/complainant has urged that the complaint filed before the District Commission was amended and in view of the increase in the pecuniary value the same was permitted to be withdrawn by the order dated 21.10.2024 with liberty to present it before the State Commission. The complaint was accordingly returned for presentation before the State Commission. Thus, the complainant had been pursuing a bonafide litigation before the appropriate forum but on account of the amendment being allowed, which order has become final between the parties, the pecuniary jurisdiction as per the claim statement accompanying the complaint, lay before the State Commission and, therefore, it has been rightly entertained and does not suffer from any lack of pecuniary jurisdiction or bar of limitation.

15.    It is then urged by the learned counsel for the respondent that the State Commission has found that the cancellation was invalid as the agreement to sale with the complainant was through a registered agreement to sale and, therefore, the cancellation could not have been made otherwise than by another registered document. A mere intimation of termination by the appellants was absolutely illegal and is void.

16.    It is then urged that the appellants had absolutely no defence at all before the State Commission either on facts or on law and not only this, they deliberately resold the flat to a third party during the pendency of the litigation which is not only violation of the agreement between the parties but is also illegal. In such circumstances, the impugned order does not deserve any interference. The complainant had been compelled to file the complaint as he was under the threat of criminal action as well. It is urged that the unfair trade practice of the appellants was established before the State Commission and consequently the impugned order which is a reasoned one may be affirmed.

17.    Having heard learned counsel for the parties it is undisputed that Flat No.603 was negotiated for sale for a sum of Rs.7.5/- lacs with the complainant and a registered agreement to sale was executed on 02.08.2007. Even though the period of delivery of possession was left blank yet according to the appellants it was only a period of 18 months plus another 3 months of grace from the date of the agreement. This period expired in 2009 itself and even otherwise a reasonable period of three years had also come to an end. There was, therefore, according to the complainant failure to deliver possession within the time stipulated.

18.    In this regard a reference deserves to be made out to the agreement which is a registered document dated 02.08.2007 filed as annexure B-3. A perusal of the same would indicate that clause-6 stipulates the handing over of possession but the period has not been mentioned and has been left blank. The stand taken by the appellants is that the complainant had failed to respond to the requests made by the appellants over telephone regarding the completion of the building and payment of the balance amount, hence the agreement dated 02.08.2007 was terminated and the complainant was requested to collect the refund. The said letter dated 08.04.2010 sent through the lawyers to the complainant is extracted herein under:-

“To,

          Shri, Subhash Ramjag Chourasiyas

          9/58, Digvijay Mill Compound, Patra Chawl,

          Datta Ram Lad Marg,

          Kalachouki,

          Mumbai-400033

          Sir,

Under instructions from my client M/s Sai Krupa Builders, having its office at 18, Pancharatna, Opp. Rly, Station, Bhayander (East), Tal & Dist, Thane-401105 I have to address you as under: -

My client states that by an agreement for sale dated 2^nd August, 2007 you agreed to purchase the flat bearing No.603, having an area of 46.46 sq. mts on the 6^th floor of the building known as Sai Palace to be constructed on the land bearing old survey No.379, New Survey No.57, Hissa No.2, of Village Goddev, Bhayander (E), Tal & Dist Thane from my client at a sum of Rs.7,50,000/- on the terms and conditions contained in the said agreement.

My client states that as per the terms and conditions of the agreement it was agreed between you and my client that you will pay Rs.1,00,000/- at the time of execution of the agreement and balance amount was agreed to pay at the time of possession of the flat.

My client states that at the time of execution of the agreement you paid Rs.1,00,000/- to my client as an earnest money. Thereafter you paid Rs.3,50,000/- from GIC Housing Finance Co. Limited by availing a loan.

My client states that as you are aware that the entire building is completed and many purchasers have taken possession of the flat in the year 2009. Thereafter my client contacted you on the telephone and also had informed you about the completion of the building. My client had informed you to take the possession of the flat by paying the balance amount but till the date you have not turned up to my client to pay the balance amount and take the possession of your flat.

My client states that as per the terms and conditions of the agreement you are bound to pay the balance amount of Rs.3,50,000/- to my client and take the possession of the flat. Non-payment of the balance amount in time has formed my client to terminate your agreement.

Under such circumstances as per the instruction of my client, my client hereby terminate the agreement dated 2^nd August 2007 executed between you and my client and informed you to collect the amount paid to my client from my client’s office within 7 days from the receipt of this notice, failing which my client shall forfeit the amount which please be noted.”

19.    The complainant through his lawyer wrote back on 16.04.2010 denying any such authority available to terminate the agreement and further that the complainant is still ready and willing to pay the balance of Rs.1,05,000/- for taking possession of the flat. The said letter is extracted herein under: -

“To,

Mr. John M. Rodricks

Add: office No.2, 1^st floor,

Shantiganga Apartments,

B. Building, Opp. Bhayender

Thane-401105

Ref: Your notice dated 8.4.2010

Sir,

Under the instructions of my client Mr. Subhash Ramjag Chaurasiya residing at 9/58, Digvijay Mill Compound, Patra Chawl, Dattaram Lad Marg, Kalachowki, Mumbai - 400 033 I have to reply to your notice dated 8.4.2010 as under:

1.      With reference to para 1 of your notice the contents therein are. true, correct and hence admitted.

2.      With reference to para 2 and 3 the contents therein are true, correct and hence admitted.

3.      With reference to para 4 of your notice the contents therein are false, frivolous, baseless and hence denied. My client states that your client never contacted my client on the telephone or otherwise and informed my client about the completion of the building. My client further states that it was my client who used to keep following up with your client about the status and progress of the building. It is also false that my client did not turn up to pay the balance amount and take possession of his flat.

4.      With reference to para 5 of your notice, the contents therein are false, frivolous, baseless and hence denied. It seems that your client has not given you proper information or that your client is weak in his mathematical skills. My client further states that your client has admitted that my client has paid your client Rs.4,50,000/- out of the total consideration and therefore as per the agreement, my client is liable to pay Rs.3,00,000/- and not Rs.3,50,000/- as demanded by you in your notice dated 8.4.2010 and therefore the same is faulty and void.

5.      My client states that as per my client, he has paid Rs.4,50,000/- i.e. Rs.1,00,000/- on execution of the agreement and Rs.3,50,000/- by way of loan. My client further states that my client has further paid Rs.1,50,000/- by way of two cheque of Rs.75,000/- each and Rs.35,000/- by way of chequе оп 15.12.2007 and Rs.10,000/- by cash and hence. My client is liable to Rs.1,05,000/- as per the agreement which he is ready and willing to pay and take possession of the flat.

I therefore call upon you to advise your client to withdraw the notice dated 8.4.2010 and accept the balance consideration amount Rs.1,05,000/- and handover possession of the flat to my client within 15 days of the receipt of this present reply failing which my client would be constrained to initiate such legal proceedings against your client as to your client’s risk and consequences thereof please note.

Yours truly,

Sd/-

(Mr. Sakalesh C. Shetye)

Advocate, High Court”

20.    What we observe is that the agreement between the parties was a registered agreement to sale dated 02.08.2007. The said agreement could not have been cancelled otherwise than by another registered document inasmuch as an annulment of a registered document has to take place by another registered document which was not done in the present case. Secondly, the letter dated 08.04.2010 purporting to terminate the agreement is an illegal notice through the counsel intimating that the appellants are terminating the agreement. The said request through the counsel is inappropriate and even otherwise not a legal method to terminate the agreement, which ought to have been done by the appellants themselves in their name. In the absence of any such valid procedure having been adopted by the appellants, we find that the attempt to terminate the agreement is not lawfully sustainable and, therefore, the conclusion drawn by the State Commission on this count is correct and we affirm the same.

21.    The natural fall out of the same is that registered agreement to sale has survived and has not been dissolved. The appellants, therefore, are bound by the said agreement and they could not have negotiated the property with a third party without cancelling the said agreement in accordance with law. The subsequent sale of the property to a third party, therefore, was clearly in violation of the said agreement. This act on the part of the appellant was contrary to the agreement and is a deliberate commission which amounts to an unfair trade practice.

22.    Coming to the payment part, the State Commission has drawn up a chart in the third paragraph of the impugned order indicating the complainant’s claim of the payments made to the tune of Rs.6,45,000/- out of Rs.7,50,000/- and the balance amount of Rs.1,05,000/- that was to  be paid at the time of handing over possession. Two items of payment in cash have been denied by the appellants, one amounting to Rs.35,000/- and the other Rs.10,000/-. Thus, an amount of Rs.45,000/- has been denied by the appellants as there was no proper receipt for the such payment and as such the State Commission came to the conclusion that the appellants have received a sum of Rs.6/- lacs and it was Rs.1,50,000/- that remained as balance.

23.    In this regard, the complainant had indicated their offer to make the balance payment which according to them was Rs.1,05,000/- when they lodged the FIR before the police and also when they sent their letter on 16.04.2010 after the purported cancellation on 08.04.2010. It is, thus, evident that the complainant had paid a substantial amount and even assuming that there was an outstanding amount of Rs.1,50,000/-, there is a clear willingness on the part of the complainant to make the payment. It is correct that the payments were not actually tendered to, but from the agreement itself it is evident that the balance of the payment had to be made at the time of delivery of possession and not prior to that. The appellants negotiated and resold the property to Mr. Subhash Pathak much later to in between the pendency of the litigation.

24.    There is an interesting part of this litigation which needs mention and has been indicated by the State Commission, namely, when the complainant had initially filed the complaint before the District Commission, an application for interim relief had been moved which was rejected on 17.01.2012. The complainant filed Revision Petition No.53 of 2012 before the State Commission and the State Commission allowed the revision on 22.10.2012 injuncting the appellants from creating any third party rights. This fact has been noted by the State Commission in paragraph-10 of the impugned order. However, we find that the said injunction order was passed on 22.10.2012 whereas the property had been negotiated prior to it by the appellants in favour of Mr. Subhash Pathak. Thus, there was no injunction operating as on the date when the property was resold to Mr. Subhash Pathak. In this regard, the letter dated 06.04.2011 sent through counsel for the appellant to the complainant can be referred to which is extracted herein under: -

“To

SUBHASH RAMJAG CHOURASIYA

9/58, Digvijay Mill Compound,

Patra Chawl, Datta Ram Lad Marg,

Kalachowki, Mumbai-400033

Under instructions of my client Mr. Vinay L. Dubey partner of Sai Kripa Builders having address at Shop No. 17/18, Panchratna CHS. Ltd., Opp. Rly. Station, Bhayander [E] Dist-Thane-401 105, 1 have to address you as under: 

1.      My client has constructed the building known as Sai Palace at Ramdeo Park Road, Mira Road [E] Thane which is later on changed and Regd. as Om Sai Palace CHS. Ltd. In the said building, you had purchased one flat No. 603 vide an agreement for sale dated 2/8/2007 executed by my client.   

2. My client further states that after executing the said agreement for sale, you obtained bank loan and paid to my client but still there is balance amount due and payable by you. You were neither paying the balance amount nor interested to take possession of the said flat in spite of repeated demands made by client several years and therefore my client was constrained to cancel/terminate the said agreement for sale and you are intimated for the same by giving notice dated 8/4/2010 through  his advocate.

3.      Since the said agreement for sale executed with you is cancelled/ terminated and therefore my client is having right and entitle to sell it to third party without your consent or anybody else. My client states being reputed person, he is ready to refund the amount to you whatever paid to him by you. You are therefore called to take back said amount being refund of the same within a week from the receipt of this notice, falling which said amount will be forfeited without any further intimation to you.

4.      You also please note that you are trying to change the record in reliance energy and Municipal Corporation in respect of the said flat which is illegal. You please do not do any such things so that my client will take action you.

Thanking you                                            Yours Truly

Sd/-                                                            Sd/-

Counter signature                                    Advocate”

25.    This has been replied to by the complainant through counsel on 18.04.2011, which is extracted herein under: -

“To

Mr. H.R. Sharam,

Advocate High Court

1, Pancharatna Cooperative Housing Society Ltd.

Above National Dairy,

Opp. Railway Station,

Bhayander (E), District Thane-401105

REF: Your letter dated 06/04/2021 received by my client on or about 12^th April 2021

          Sir,

          I am concerned for my client Mr. Subhash Ramjang Chourasiya who has wrongly named as " Subhash Ramjag Chousasiya" in the letter under reply. My client presently reside at 9/58. Digvijay Mill Compound, Patra Chawl, Datta Ram Lad Marg, Kalachowki, Murnbai 400 033, who is in receipt of your aforementioned letter and has noted the contents thereof and has instructed me to address you as under:

1) At the outset, my client denies the contents of your letter under reply as false, frivolous and vexatious. My client states that it appears from the perusal of the letter under reply that your client has not sufficiently instructed you or is in habit of concealing material facts from the advocates for his own benefits. In this connection my client states that it is substantially correct to state that your client had issued a notice dated 08/04/2010 there by labeling allegations as defaulter against my client and further had allegedly terminated the said agreement dated 02/08/2007. My client had duly replied to the said notice dated 08/04/2010 vide his advocate's reply dated 16/01/2010 and had even supplied the particulars of the actual payment made my client. Said reply was duly received by the Advocate John M. Reedhika. My client repeat, retreat and confirms the contents of the said reply dated 16/04/2010 as true and correct and adopt the same. herein. My client states that the contents of the said reply dated 16/04/2010 was not at all disputed by your client but have intentionally appears to have instructed you to address such melafide, bogus notice with an intention to pressurize my client to succumb to his illegal demands of extra money which my client was not at all liable to pay. My client states that in the said reply dated 16/04/2010 my client had specifically stated that at no point of time my client was called upon by your client after obtaining the O.C, B.C.C to take the possession of the flat in question. In fact at no point of time it is been informed by your client that the flat in question is in all respect is ready for occupation. My client states that as contemplated under the said agreement it is incumbent upon your client to obtain O.C, B.C.C and further call upon my client In writing to take the possession of the flat in question. At no point of time such exercise been done by your client and on the contrary with a melafide intentions instructed you to address my client present notice under reply.

2).     Without prejudice to the above my client states that it is substantially correct to state that Mr. Vinay L. Dubey is one of the partner of Sal Kripa Builders. It is also correct ot state that your client constructed the building known as Sai Palace, at Ramdeo Park Road, "Mira Road (E.). it is also correct to state that my client has purchased flat. No. 603 vide registered agreement dated 02/08/2007. It is also correct to state that my client has availed Bank Loan and paid to your client from time to time. It is also correct to state that there is certain balance amount payable by my client to your client. My client states that said balance amount is to be paid on the date of possession of the said flat. As you are aware that my client has already availed the loan from the GIC Housing Finance and since his loan is sanctioned there is no impediments from my client to make the said balance payment. In fact my client states that there is no valid reason subsisting to withhold the address present notice under reply. My client further deny that that he is trying to change the record as alleged. My client has instructed me to call upon you which I hereby do and call upon your client to hand over the possession of the flat in question by obtaining the O.C, B.C.C and by completion of the entire project. My client is ready and willing to pay the remaining balance amount of Rs.1,05,000/- against the possession. as contemplated under the agreement. My client further Call upon your client to hand over the possession of the flat in question within the period of 48 hrs by accepting the balance payment of Rs.1,05,000/- failure of which shall constrain my client to take appropriate legal action against your client including action under Consumer protection Act. solely at your client's costs and consequences which you are requested to note.

Yours Truly

Sd/-

Advocate High Court”

26.    The property was under litigation and otherwise was subject to the doctrine of lis pendens. The appellants had knowingly sold the said property to a third party and it is for this reason that the complainants made an alternative prayer before the State Commission calling upon the appellants to offer an alternative flat in the same area in the same project or nearby. As noted above, the said option has not been provided as an offer by the appellants even during the pendency of this appeal and as such there is non-delivery of possession of the property to the complainant which deficiency is established.

27.    Coming to the issue raised by Mr. Madhurendra Kumar regarding withdrawal of the complaint before the District Commission, it appears that the complainant moved an amendment application on 07.11.2013 when the complaint was still pending before the State Commission. The said application has been filed as annexure B-13 and is on record. Paragraph 17 (a) and 17 (b) were sought to be introduced together with an alternative prayer to be incorporated in the complaint. The prayer made is extracted herein under: -

17a) The Complainant states that since this Hon'ble Forum not granted interim relief, the Complainant filed Revision Petition bearing R.P. No: 53 of 2012, in which the Hon'ble State Commission vide order dated 22/10/2012, granted interim relief thereby restraining the Opponents from creating third party interest in the said subject flat. The Opponent states that the Complainant is entitled for possession of the said flat as he has already pald 85% considera... out of total agreed consideration and is ready to pay the balance consideration on getting possession of the sald flat. The Complainant states that as stated hereinabove the prices of the flats are in rising and the Complainant is now not in position to buy other flat only by getting refund of amount. Thus if the Opponents are not in position to handover possession of the said flat as per Agreement dated 02/08/2007, than the Opponents are liable to pay the current market value of the said flat:

17b) The Complainant state that the agreement for sale is executed between the Complainant and the Opponents way back in the year 2007, which is duly registered and despite receiving an amount of Rs.6,45,000/- out of total consideration of Rs.7,50,000/- long back in the year 2008, the Opponents failed to give legal possession of the agreed flat, which was agreed to give in the month of March, 2008. The Complainant states that since the Opponent failed to give possession of the said flat the Complainant has to enter into Leave and Licenses-agreement and taken a flat on rent for residence of his family which is situated at 9/58, Digvijay Mill Compound, Patra Chawl, Dattaram Lad Marg, Kalachowki, Murnbai 400 033. The Complainant states that he entered Into a leave and license agreement with the Licensor, Mr. Shridhar Ganpat Mane, first for the period of 11 months i.e. from 21/06/2011 to 20/05/2012, and accordingly paid an amount of Rs.7,500/- per months, aggregating Rs.82,500/- for that period. The Complainant further states that the complainant extended the same agreement form 20/05/2012 to 19/04/2013 of Rs.8,000/- per months as monthly rent for next 11 months aggregating Rs.88,000/-. Thereafter also till today since the Opponents failed to handover possession of the flat, the Complainant has to again extend the said leave and licenses agreement in the name of Mrs Sushama Subhash Chaurasiya wife of Complainant and the period of the said agreement from 20/04/2013 to 19/03/2014, of Rs.8.500/-, per months and for 11 months of Rs.93,500/-. The Complainant paid total amount of Rs.264000/ for the above 33 months of period to Mr. Shridhar Ganpat Mane i.e. the licensor. The Complainant states that this amount is paid by the Complainant to the licensor only because the Opponent failed to give possession of the flat and hence the Opponent is responsible and liable to pay the said amount with 9% interest to the Complainant as compensation, The photocopies of the said leave and licenses are annexed herewith as "Exhibits-J cally".

After prayer clause a) the following prayer be added;

Alternative prayer

Or Alternatively

aa) If the Opponents not in position to handover legal possession of the said fiat than the Opponent be directed to pay the current market value of the said flat;

After prayer clause b) the following prayer be added;

bb) that the Opponents be directed to pay to the Complainant the compensation of Rs.2,64,000/- with Interest @ 0% as a leave and licenses amount from 21/06/2011 till the date of actual hand over possession of the said flat.”

28.    This prayer for amendment was allowed on 16.10.2014. There is no dispute on this fact that the amendment had been permitted by the District Commission before the withdrawal of the complaint. This order of allowing the amendment of 16^th October, 2014 has nowhere been challenged and has become final. We may refer to the provisions of Section 24 of the Consumer Protection Act, 1986, which reads as follows: -

“24.   Finality of order Every order of a District Forum, State Commission or the National Commission shall, if no appeal has been preferred against such order under the provisions of this Act, be final.”

          Accordingly, the order allowing the amendment has become final and was not challenged at any stage of the proceedings.

29.    At this stage, it may be apt to refer to the statement of claim indicating the market value that was made the basis of the amendment. This statement of claim is part of the complaint and is extracted herein under: -

“STATEMENT OF CLAIM

30.    Once the amendment had been allowed, the District Commission did not have the pecuniary jurisdiction to proceed with the matter and, therefore, on 21^st October, 2014 an application was moved by the complainant praying for withdrawal of the complaint. The said application is in local Vernacular, Marathi, the contents whereof are not disputed by the learned counsel for the appellants. The same has been placed at page No.81 of the paper book. This application has been allowed by the District Commission on 21^st October, 2014 by an order which is yet in Marathi and placed as annexure B-1 at page 117 of the paper book. On a translation recited at the bar, there is no dispute that the withdrawal was allowed keeping in view the change in the pecuniary jurisdiction brought about by the amendment that was allowed as indicated hereinabove with liberty to present the complaint that was returned to be placed before the State Commission.

31.    Thus, the argument of the appellants that the institution of the complaint before the State Commission was without liberty or was beyond limitation has to be rejected inasmuch as the complaint was returned on the issue of pecuniary jurisdiction not being available to the District Commission after the amendment was allowed and remained unchallenged. The complaint, therefore, was presented lawfully and was not barred by time and even otherwise was a continuing cause of action as neither the possession of the flat was given nor was any alternative premise offered to the complaint or refund made. As to what is a continuing cause of action has been settled by the Apex Court in a dispute of housing construction where the delay in obtaining the occupancy certificate was found to be a valid reason for entertaining the complaint as it gave rise to a continuing cause of action. The judgment is reported in the case of Supreme Court in Samruddhi Co-operative Housing Society Ltd. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd., AIR 2022 SC 428.

32.    Thus, there was no bar of limitation nor was there any bar of pecuniary jurisdiction for entertaining the complaint by the State Commission.

33.    It may be pointed out that this challenge to a bar of pecuniary jurisdiction has to be raised at the first instance and cannot be permitted at the appellate stage in view of the law laid down by the Apex Court in the case of Harshad Chimanlal Modi vs Dlf Universal Ltd. & Anr. (2005 (7) SCC 791 which is extracted herein under: -

            “We are unable to uphold the contention. The jurisdiction of a court may be classified into several categories. The important categories are (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and (iii) Jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is nullity.”

34.    As noted above, the amendment was allowed as a result whereof there was a change in pecuniary jurisdiction and no objection to the same was raised nor was the order subjected to any challenge. This ground, therefore, is not available to the appellants even otherwise at this stage in this appeal. The contentions raised on this score are also, therefore, rejected.

35.    From the facts that have been indicate above it is evident that the appellants have acted in breach of the agreement and have also resold the property deliberately and, therefore, their entire acts and omissions are clearly an unfair trade practice coupled with deficiency in service as a result whereof the complainant has suffered the loss. The State Commission, therefore in our view, for all the reasons hereinabove and the reasons given in the impugned order, rightly allowed the complaint. It will not be possible for the complainant to purchase a flat for the same price even if the refund as offered by the appellants is made in the background that this purchase is of the year 2007, and with the escalation and mounting of prices of real estate, the complainant would not be able to purchase a flat of the same nature in the same locality or nearby with the amount of refund as offered by the complainant.

36.    In the wake of the aforesaid facts, the relief as granted by the State Commission does not call for any interference and the appeal is liable to be dismissed.

37.    Consequently, for all the reasons hereinabove and in view of the facts and circumstances of the case, the appeal is dismissed and the impugned order is upheld.