Full Text
HIGH COURT OF DELHI
Date of Decision: 25th , August, 2025
44432/2024 SHOURYATOWERS PVT. LTD. .....Petitioner
Through: Mr. Prem Prakash, Ms. Deepali Nanda, Mr. Tarush, Advs.
Through: Mr. Atul Aggarwal, Mr. Jalaj Aggarwal, Mr. Ravi Mittal, Mr. Devanand Kumar, Advs.
JUDGMENT
1. A complaint was filed by one Sh. Surjeet Singh (since deceased) wayback in the year 2014 before learned Delhi State Consumer Disputes Redressal Commission, New Delhi (in short „State Commission‟).
2. Such complaint was allowed by learned State Commission.
3. Feeling aggrieved by order dated 13.09.2019 passed by learned State Commission, a first appeal was filed by the opposite party i.e. M/s Shourya Towers Pvt. Ltd., before learned National Consumer Disputes Redressal Commission (in short „NCDRC‟) and, such appeal has been dismissed by learned NCDRC on 15.03.2024.
4. Opposite party has invoked supervisory jurisdiction of this Court by CM(M) 3109/2024 2 filing present petition under Article 227 of the Constitution of India.
5. The facts lie in a very narrow compass.
6. According to case of the complainant, he was in search of some residential accommodation for his own use and in the process, he came across an advertisement of opposite party. He met the concerned officer of the opposite party and was apprised that the project in question i.e. “Lotus Pond”, situated at Indirapuram, Ghaziabad was already under construction and would be completed within a period of 12 months approximately.
7. A rosy picture of the abovesaid project was portrayed and he was told that if he was interested in the abovesaid project, he should purchase the same from a certified real estate agent or through contact of opposite party‟s office bearers who were offering some units on re-sale. He was, eventually, made to purchase one unit of the abovesaid project i.e. Unit No. B3/101 measuring 1545 sq. ft. for a sum of Rs.20,16,225/-.
8. The transaction, according to the complainant, took place on 25.04.2005 and he was also made to pay premium of Rs.10 lacs in cash for the abovesaid amount.
9. According to complainant, the construction of the abovesaid project was not in terms of the promise and assurances given to him and that, initially, he was apprised that only 80 units were to be constructed but, later on, he noticed that opposite party had started constructing extra floors in the building. When he confronted the opposite party in this regard and sought reasons thereof, he was, rather, threatened of dire consequences and was even told that his allotment would be cancelled.
10. The complainant became apprehensive because of change in number of units which would automatically mean that the extent of usage of CM(M) 3109/2024 3 common area would get reduced which would have natural ripple effect over the other facilities including parking. Since there was no redressal of his grievances, he sent a legal notice to the opposite party but, to make things worse, the complainant was rather served with notice of cancellation of his unit.
11. Fact, however, remains that since the opposite party refunded the amount, the complainant was compelled to file the abovesaid complaint seeking handing over of the possession of the abovesaid unit and also sought compensation of Rs.25 lacs as compensation for harassment.
12. The abovesaid complaint was resisted by opposite party i.e. builder, and according to them, the flat had been cancelled and the amount had been refunded by way of demand draft dated 02.08.2013 and, after having accepted the abovesaid refund, the complaint was not maintainable.
13. After completion of pleadings, the complainant filed his affidavit and from the side of opposite party, affidavit of one Sh. Praveen Chandra Mishra was filed.
14. After hearing arguments from both the sides, the learned State Commission disposed of the abovesaid complaint while directing as under:
CM(M) 3109/2024 4 complainant. The complainant is not entitled to any compensation separately because he is getting the flat at old rate and thereby earning appreciation in price.”
15. Feeling aggrieved by aforesaid order, the opposite party filed an appeal before learned NCDRC and raised following contentions, which are found recorded in para 8 of the impugned order which read as under:
16. It will be also important to mention that the complainant died when the complaint was pending adjudication and the abovesaid appeal was resisted by his legal heirs.
17. All the abovesaid contentions were considered by learned NCDRC and the first appeal has been dismissed while observing as under: CM(M) 3109/2024 5
14. It is an uncontested position that the Complainant had entered into an agreement on 30.08.2013 for purchase of a flat No. 83/101 in "Lotus Pond" project of the OP in Indirapuram, Ghaziabad. In terms of the agreement the flat was to be completed and handed over within 12 months. While OP admitted receiving Rs.20,16,225/- from the Complainant, the OP refuted liability towards additional payment of Rs.10 Lakhs in cash as a premium allegedly paid to the agent of the OP. The Complainant alleged that the Appellant.failed to fulfil their obligations under the agreement, particularly in terms of timely construction and delivery of the flat in question as per agreed specifications. In addition, he raised concerns about the unauthorized construction of extra floors, which impacts common area usage and facilities like parking. On the other hand, the Appellant asserted that they appropriately cancelled allotment of the flat to the Complainant due to defaults in payment and subsequently refunded the amount. They also argued that the flat was already sold to a third party, after the cancellation. Therefore, the main issues to be determined include whether the Appellant fulfilled the contractual obligations, validity of the cancellation of the allotment of the flat, impact of alleged default in payment by the Complainant, legality of selling the flat to a third party and the State Commission's jurisdiction to adjudicate the case.
15. The records including the order of the learned State Commission dated 13.09.2019 reveal that, in support of his claim the Complainant had filed a receipt dated 25.04.2005 pertaining to payment of Rs. 7,75,000/- on 18.,02.2019. This receipt was issued by Shri Rajender Jain of Rishabh Estate. Thereafter, as sought by the Counsel for the Complainant, Shri Rajender Jain of Rishabh Estate was summoned and his statement was recorded in part on 23.07.201.9. He admitted his signatures on receipt at the space for signature of the seller and stated that he received Rs.[1] Lakh in cash from the Complainant Shri Surjeet Singh. The Initial allotment was made in the name of Shri Narender Kumar @ 1305/- per Sq Ft and the Complainant purchased the same from him @1790/- per Sq Ft. Rs.[1] Lakh paid was towards part of difference in the original allotment price and resale price amounting to Rs. 7,49,325/-, leaving balance of Rs.6,49,325/-. He received the amount on behalf of Shri Narender Kumar (the original allottee) and paid the same to Shri Narender Kumar. While his further statement was deferred on 23.07.2019, the witness did not appear on 08.08.2019 on the ground that a cousin of his was admitted in CM(M) 3109/2024 6 ICU. On 04.09.2019 the counsel for OP did not appear. The learned State Commission considered that there are endorsements of payment of Rs.3,02,434/- vide cheque NO. 409095 on 23.05.2005 to Shri Narender Kumar and Rs. 2,11,622/- vide two cheques No. 409096 and 409097 to Mis. Shourya Tower Pvt Ltd. There was also a receipt for Rs.2,50;000/- by the said Shri Rajinder Jain on 08.06:2005. Also, there is endorsement for receipt of Rs.4,25,000/- on 27.06.2005. The total of these cash payments was Rs.7,75,000/and the Complainant claimed Rs.10 Lakhs as cash payment made. Of this, Rs.2,11,622/- was acknowledged by OP and allegedly refunded by the OP. In these circumstances; the learned State Commission considered that the OP cannot be allowed to enrich itself with over Rs.10,77,434/- by cancelling the allotment and depositing only the undisputed amount in the A/c of the Complainant. While the conduct of the OP in failing to explain as to why it did not handover the demand draft to the Complainant against receipt raised questions, the same of the Complainant in reporting the matter to police supported his contention.
16. As regards creation of third-party interest in respect of the Flat in question by the OP, it was the initial contention of the OP that, after cancellation of its allotment, it had already sold the flat to someone else. On being directed to file copy of sale deed, the OP failed to file the same till 26.04.2019. Intriguingly thereafter, on 08.07.2019 it was stated that OP had not executed any sale deed in respect of the said flat but it had allotted the same to someone else and received the payment. On being directed on 23.07.2019 to file a copy of the application of the third person, allotment letter, proof of payment received by it, mode of payment etc the same was filed before the State Commission on 04.09.2019. Copy of allotment letter dated 30.08.2013 was in favour of M/s Divine Realtors for Rs.43,61,9501. It stated that the payment had already been made,· without being clear as to the mode of payment and details. The copy of agreement dated 30.08.2013 was not on any stamp paper to ascertain its validity and date and it was not even notorized to indicate the date of execution. It is also evident that in the Written Statement dated 03.09.2015 filed by the OP, no mention was made of allotment or agreement in favour of M/s Divine Realtors. Clearly, had such agreement dated 30.08.2013 been executed before filing of the written statement on 03.09.2015, it ought to have included this fact, which is not so. Also, the OP did not even mention this fact in CM(M) 3109/2024 7 the evidence affidavit filed by Praveen Chand Mishra on 13.04.2017.
17. The limited credibility of such versions, contentions and documents wherein the OP stated that they already sold the flat to someone else and on being directed to file a copy of sale deed, it changed his stand and stated that flat was not sold and, however, the same was allotted to third person and the documents filed are unreliable. The limited credibility of the version of the OP is therefore obvious. Further, the cause of action in the case is continuous and, therefore, the objection of limitation does not stand. Further, the objection · as regards lack of territorial jurisdiction has also no substance as the office of the OP is in Mayur Vihar, Delhi to confer territorial jurisdiction of the learned State Commission.
18. In view of the above, the Order passed by the learned State Commission dated 13.09.2019 in C.C. No.74/2014 is based on facts and law and I find no reason to interfere with the same. Consequently, the present FA No. 309 of 2020 is dismissed.
18. Apparently, all the important facets have been examined and evaluated while considering the appeal as well.
19. The Court is conscious of scope of limited interference while exercising supervisory jurisdiction under Article 227 of Constitution of India. The impugned order can only be interjected when there is gross illegality or perversity in the order.
20. Unfortunately, in the case in hand, nothing of that kind exists.
21. In the garb of present petition, the endeavour of the opposite party is to seek appraisal of evidence all over again, which is neither justifiable nor permissible.
22. This Court, while entertaining petition under Article 227 of the Constitution of India, cannot act as an Appellate Court and re-evaluate and re-weigh the facts and evidence, particularly when the view of learned CM(M) 3109/2024 8 NCDRC seems to be a plausible one. In Omaxe Buildhome (P) Ltd. v. Ibrat Faizan, (2022) 4 HCC (Del) 492 this Court observed as under:
23. In Garment Craft (supra), Hon'ble Supreme Court has observed that the High Court, while exercising supervisory jurisdiction, does not act as a court of first appeal to re-appreciate, re-weigh the evidence or facts upon which the determination under challenge is based. It observed that supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported and, thus, High Court is not to substitute its own decision on facts and conclusion, for that of the fora below.
24. Viewed thus, this Court does not find any merit in the present petition and the same is hereby dismissed.
25. Pending applications also stand disposed of in aforesaid terms.
JUDGE AUGUST 25, 2025/ck/pb