Case: M/S TREATY CONSTRUCTION Vs. M/S RUBY TOWER CO OP HSG. SOCIETY LTD

while issuing directions for executing the Deed of Conveyance by obtaining Completion Certificate and Occupation Certificate, also directed the appellants to pay Rs. 26,25,000/- with interest, being the amount illegally collected towards possession charges. The State Commission, however, held that there was no documentary evidence to establish that the amount of Rs. 46,40,000/- was incurred by the members of the respondent-society to complete the interior civil works. On the other hand, the National Commission agreed with the submissions of the appellants that the directions regarding refund of Rs. 26,25,000/- could not have been issued when there was no cogent proof and when the President of the society, who had issued the receipt in question, was deleted from the array of the parties on the request of the complainant. However, the National Commission ordered payment of Rs. 25,00,000/- by the appellants as agreed by them in the meeting dated 17.12.2003.9. When the prayers made in the complaint are read along with the contents of the application dated 21.03.2013 as also with the findings of the State Commission and the National Commission, it may appear at the first blush that the amount claimed towards temporary loan in prayer (d) was given up by the respondent-society whereas no proof was found in relation to amounts claimed in prayers (e) and (f) towards possession charges and interior civil works respectively. However, fact of the matter remains that there had been long drawn disputes between the parties on several issues, including those regarding monetary claims made by the respondent-society and its members; and meetings were held for resolution of such disputes. The prayers (d) to (f) for money recovery in the complaint and the submissions made in the application dated 21.03.2013 are required to be viewed in the context of such claims and the resolutions adopted in the meetings. In our view, it would be wholly inappropriate and unjustified to consider the prayers as made in the complaint and as modified in the application de hors the context and disjointed from the decisions taken in the meetings aforesaid.10. Indisputably, in the application dated 21.03.2013 as moved before the State Commission, the respondent-society restricted its prayer for money recovery to a sum of Rs. 25,00,000/- with reference to the aforesaid minutes dated 17.12.2003 and 14.12.2003. It is at once clear that the aforesaid sum of Rs. 25,00,000/- was agreed to be paid by the appellants in full and final settlement of the claim of the respondent-society. The appellants having agreed to make such payment, in our view, the National Commission has rightly put them to the terms of honouring their unequivocal commitment/promise. In the given set of facts and circumstance, we are unable to accept the contention that a particular part of order of the State Commission having not been challenged by the respondent-society, the National Commission could not have granted the relief otherwise available on the face of record. In an overall view of the matter, when such a relief emanates from the very commitment made by the appellants in the meetings aforesaid, the National Commission had been fully justified in granting the same to the respondent-society. Therefore, we find no reason to consider any interference in this part of direction by the National Commission (as contained in paragraph 10 of the order impugned).11. Even when we find no reason to interfere with the above-mentioned parts of the order impugned, it appears difficult to approve the directions in the remaining parts thereof, particularly those relating to other pecuniary reliefs. The National Commission has saddled the appellants with a liability to pay compensation to the tune of Rs. 3,00,000/- for not obtaining Occupancy Certificate and has issued further directions to the appellants to obtain such certificate as also to execute the requisite Deed and to pay Rs. 1,000/- per day for every day of delay. True it is that Occupancy Certificate was not obtained by the appellants but then, fact of the matter remains that the members of respondent-society chose to take over possession without such certificate; and then, several questions have arisen as regards the alteration allegedly carried out by them for which, the Municipal Corporation has the objections to raise. In any case, there appears nothing on record to find the basis for holding the appellants liable for compensation and then, for assessing the quantum of compensation, if at all there be any liability of the appellants. In other words, there is no material on record to find if the respondent-society or its members suffered any loss; and if so, the extent thereof. Therefore, this part of the order impugned, directing the appellants to pay compensation to the tune of Rs. 3,00,000/-, cannot be approved.12. As regards direction to appellants to convey the title of the property in question by executing a registered Deed within a period of four months after obtaining Occupancy Certificate, in our view, though the appellants cannot avoid their legal obligation to execute the requisite Deed but then, having regard to the facts and circumstances of the case and more particularly the facts relating to the issuance of notices by the Municipal Corporation; and the dispute/objection regarding alterations by the members of the respondent-society having not been settled as yet with the High Court having issued directions for inspection of the building and for necessary follow-up steps, awarding of Rs. 1,000/- per day for every day of delay seems rather unwarranted. In the given situation, where the Municipal Corporation had been of the view that there were visible illegal constructions made by the members of respondent-society because of which the Certificate cannot be issued; and in view of the orders dated 12.06.2017 and 07.01.2019 passed by the High Court in W.P. No. 970 of 2015, the penalty of Rs. 1,000/- per day deserves to be waived at present but with the requirements on the parties to complete the respective requisites, while leaving it open for them to take recourse to appropriate remedies, in case of any grievance arising in future.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]6. Having heard learned counsel for the parties and having perused the material placed on record, we are satisfied that in the given set of facts and circumstances, directions by the National Commission as regards payment of a sum of Rs. 25,00,000/ by the appellants to the respondent-society calls for no interference but then, other parts of the order impugned call for suitable modification.7. The contention on the part of appellants as regards pecuniary jurisdiction has only been noted to be rejected. The National Commission has observed, and rightly so, that such a plea was not specifically raised before the State Commission at the earliest opportunity; and the State Commission having already decided the matter on merits, such a technical objection as regards pecuniary jurisdiction could not have been countenanced before the National Commission. We find no error in the National Commission rejecting this plea as being wholly untenable at the given stage.When the prayers made in the complaint are read along with the contents of the application dated 21.03.2013 as also with the findings of the State Commission and the National Commission, it may appear at the first blush that the amount claimed towards temporary loan in prayer (d) was given up by the respondent-society whereas no proof was found in relation to amounts claimed in prayers (e) and (f) towards possession charges and interior civil works respectively. However, fact of the matter remains that there had been long drawn disputes between the parties on several issues, including those regarding monetary claims made by the respondent-society and its members; and meetings were held for resolution of such disputes. The prayers (d) to (f) for money recovery in the complaint and the submissions made in the application dated 21.03.2013 are required to be viewed in the context of such claims and the resolutions adopted in the meetings. In our view, it would be wholly inappropriate and unjustified to consider the prayers as made in the complaint and as modified in the application de hors the context and disjointed from the decisions taken in the meetings aforesaid.10. Indisputably, in the application dated 21.03.2013 as moved before the State Commission, the respondent-society restricted its prayer for money recovery to a sum of Rs. 25,00,000/- with reference to the aforesaid minutes dated 17.12.2003 and 14.12.2003. It is at once clear that the aforesaid sum of Rs. 25,00,000/- was agreed to be paid by the appellants in full and final settlement of the claim of the respondent-society. The appellants having agreed to make such payment, in our view, the National Commission has rightly put them to the terms of honouring their unequivocal commitment/promise. In the given set of facts and circumstance, we are unable to accept the contention that a particular part of order of the State Commission having not been challenged by the respondent-society, the National Commission could not have granted the relief otherwise available on the face of record. In an overall view of the matter, when such a relief emanates from the very commitment made by the appellants in the meetings aforesaid, the National Commission had been fully justified in granting the same to the respondent-society. Therefore, we find no reason to consider any interference in this part of direction by the National Commission (as contained in paragraph 10 of the order impugned).11. Even when we find no reason to interfere with the above-mentioned parts of the order impugned, it appears difficult to approve the directions in the remaining parts thereof, particularly those relating to other pecuniary reliefs. The National Commission has saddled the appellants with a liability to pay compensation to the tune of Rs. 3,00,000/- for not obtaining Occupancy Certificate and has issued further directions to the appellants to obtain such certificate as also to execute the requisite Deed and to pay Rs. 1,000/- per day for every day of delay. True it is that Occupancy Certificate was not obtained by the appellants but then, fact of the matter remains that the members of respondent-society chose to take over possession without such certificate; and then, several questions have arisen as regards the alteration allegedly carried out by them for which, the Municipal Corporation has the objections to raise. In any case, there appears nothing on record to find the basis for holding the appellants liable for compensation and then, for assessing the quantum of compensation, if at all there be any liability of the appellants. In other words, there is no material on record to find if the respondent-society or its members suffered any loss; and if so, the extent thereof. Therefore, this part of the order impugned, directing the appellants to pay compensation to the tune of Rs. 3,00,000/-, cannot be approved.12. As regards direction to appellants to convey the title of the property in question by executing a registered Deed within a period of four months after obtaining Occupancy Certificate, in our view, though the appellants cannot avoid their legal obligation to execute the requisite Deed but then, having regard to the facts and circumstances of the case and more particularly the facts relating to the issuance of notices by the Municipal Corporation; and the dispute/objection regarding alterations by the members of the respondent-society having not been settled as yet with the High Court having issued directions for inspection of the building and for necessary follow-up steps, awarding of Rs. 1,000/- per day for every day of delay seems rather unwarranted. In the given situation, where the Municipal Corporation had been of the view that there were visible illegal constructions made by the members of respondent-society because of which the Certificate cannot be issued; and in view of the orders dated 12.06.2017 and 07.01.2019 passed by the High Court in W.P. No. 970 of 2015, the penalty of Rs. 1,000/- per day deserves to be waived at present but with the requirements on the parties to complete the respective requisites, while leaving it open for them to take recourse to appropriate remedies, in case of any grievance arising in future.