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Sharpmind Consultancy Services & Others v/s M/s. Libord Finance Ltd. & Others

    Appeal Execution No. 17 of 2019
    Decided On, 31 October 2019
    At, National Consumer Disputes Redressal Commission NCDRC
    By, MEMBER
    For the Appearing Parties: Mohit Bhansali, Pavan Upadhyaya, Anand Patwardhan, Anjani Kumar Singh, Advocates.

Judgment Text

1. This Appeal Execution has been filed by Sharpmind Consultancy Services Pvt. Ltd. & ors. challenging the order 26.03.2019 passed by the State Commission in Execution application No.16/23.

2. Brief facts of the case are that the complainant/respondent No.1 had filed a consumer complaint before the State Commission and the same was allowed vide order dated 17.11.2014 as under:-

"Opponent is directed to execute an agreement of sale in respect of another shop of the same size within the vicinity of the same location and to hand over possession of the same to the complainant within a period of six months from the date of this order by appropriating Rs.5 Lakhs paid by the complainant as booking amount towards total consideration and accepting Rs.47 Lakhs as remaining consideration from the complainant by giving intimation about readiness of the shop and the agreement to be executed in favour of the complainant."

3. The opposite parties preferred first appeal bearing No.106 of 2015 before the National Commission and this Commission vide its order dated 11.03.2016 modified the order of the State Commission as under:-

"25. However, it must be borne in mind that a sum of Rs.47.00 Lakhs was not paid by the complainant since 30.04.2000. We hereby modify the order of the State Commission and direct that, in addition to the order of the State Commission, the complainant will also pay interest at the rate of 10% p.a., from 30.04.2000, till the date of this order, in both the eventualities, specified in the order of State Commission."

4. As the possession was not offered within a period of six months, the complainant filed execution application 16/23 before the State Commission. The State Commission vide its order dated 05.10.2018 passed the following order:-

"We make it clear that for the delayed period with effect from date of final order, the amount which is deposited on 18/01/2017 ought to have been withdrawn by the opponents so as to comply with their obligation as per final order to deliver possession of the shop which is subject matter of consumer dispute. As long as opponents not delivering possession of shop to the complainant, they shall pay interest @10% p.a. on the amount withdrawn by them or made payable to them with effect from 18/01/2017. Meanwhile, accused shall produce certificate of completion of building duly certified by the Architect/Structural Engineer/Surveyor as also copy of application made to the Municipal Corporation indicating that occupation permission is sought for by the opponents pursuant to the final order. This compliance shall be made before the next date, failing which we will have to take coercive measures."

5. The complainant deposited Rs.1,21,56,027/- on 18.01.2017 with the State Commission and then the State Commission again passed an order dated 26.03.2019. The appellants in the present case are aggrieved by the note mentioned at the end of the order dated 26.03.2019 of the State Commission. The note reads as under:-

"NOTE:- Our attention has been invited to the draft Agreement of sale labelled as 'without prejudice' at Exhibit C with the record. We cannot accept such term 'without prejudice'. The draft has to be intended as final agreement for sale with signatures of the opponents on each page of the draft as an intended agreement for sale, if accepted by the complainant shall be termed as final compliance. Draft agreement for sale, if any, shall be handed over for confirmation to the complainant and confirmed draft agreement for sale be handed over to this Commission on next date. S/o. 25.04.2019."

6. Heard the learned counsel for the parties and perused the record. Learned counsel for the appellants stated that the appellants have already supplied draft agreement of sale to the complainant duly signed by the appellants. It was not open to the State Commission to observe that submission of the draft agreement to sell shall be treated as compliance only when it is accepted by the complainant. The draft agreement has been prepared on the basis of the provisions of Real Estate Regulatory Authority, (RERA). The complainant has already filed objection to the draft agreement provided by the appellants. The State Commission may decide the objections, however, if provisions kept in the draft agreement are in consonance with the provisions of RERA, even the State Commission will not have power to change them. Clearly, the satisfaction of the complainant is not required so far as draft agreement is concerned. If the complainant is not comfortable with any clause, his objection can be decided by the State Commission. It was further argued by the learned counsel that the main order of the State Commission dated 17.11.2014 and order of the National Commission dated 11.03.2016 do not mention anything about the draft agreement to sell. The only direction is to execute the agreement. Learned counsel further stated that the second floor is totally complete where the allotted shop is located and the appellants are in a position to handover the possession to the complainant. The appellants are confident to get the occupancy certificate from the competent authority within a short period and therefore, it is essential that the agreement to sell is finalised as early as possible.

7. On the other hand learned counsel for the respondent No.1/complainant stated that the complainant has already filed its objections to the draft agreement of sale before the State Commission. However, if the second floor is complete and occupancy certificate obtained for this floor, he will have no objection in taking over the possession as per the order dated 17.11.2014 as modified by the order of this Commission.

8. I have carefully considered the arguments advanced by both the learned counsel for the parties and have examined the material on record. It is clear that note appended with the impugned order of the State Commission is in the form of an observation. However, this observation is prejudicial to the appellants because it says that the draft agreement to sell should be according to the satisfaction of the complainant. I agree with the assertion of the learned counsel for the appellants that if the complainant is not satisfied and period gets over, then the appellants may be proceeded as an accused under the execution proceedings, whereas they would have complied with the order. If the appellants get the occupancy certificate within a period of four weeks, they shall file the same before the State Commission before the next date of hearing and also submit revised draft agreement to sell after obtaining the occupancy certificate and keeping in view the objections raised by the complainant. This draft agreement to sell may be filed along with occupancy certificate within a period of 4-5 weeks from the date of this order. However, if neither the occupancy certificate nor the revised draft agreement to sell before the State Commission is filed within the time given, the State Commission will be free to decide the objections raised by th

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e complainant after hearing both the parties on the matter. In this context, the note written at the end of the impugned order passed by the State Commission will not be treated as part of the order of the State Commission. The role of the appellants is only to submit the draft agreement. It is for the complainant to consider whether it wants to sign or not. If not agreed, the complainant may file fresh objection, if required and then the State Commission will be deciding these objections, if the State Commission wants to enter into this arena. However, the appellants will not be treated in default if they have supplied the draft agreement and a copy of the agreement is given to the State Commission. With these observations, the Appeal Execution No.17 of 2019 is disposed of.