CM (M ) 3109/2024 1 $~9 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 25 th , August , 2025 + CM (M ) 3109/2024 & CM APL. 44430/2024 & CM APL. 44432/2024 SHOURYATOW ERS PVT. LTD. ...Petitioner Through: M r. Prem Prakash, M s. Depali Nanda, M r. Taru sh, Advs. versus SURJEET SINGH & ORS. ...Respondent Through: M r. Atul Aggarwal, M r. Jalaj Aggarwal, M r. Ravi M ittal, M r. Devanand Kumar, Advs. CORAM : HON'BLE M R. JUSTICE M ANOJ JAIN J U D G M E N T (oral ) 1. A complaint was filed by one Sh. Surj et Singh ( since deceased) way - back in the year 2014 before learned Delhi State Consumer Disputes Redressal Commission, New Delhi LQVKRUWµ6WDWH&RP . 2. Such complaint was allowed by learned State Commission. 3. Feling aggrieved by order dated 13.0 9.2019 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 µ1&'5&¶ DQG , such appeal has ben dismissed by learned NC DRC 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 narow compass. 6. Acording to case of the complain ant, he was in search o f some residential acommodation for his own use and in th e process , he came across an advertisement of opposite party. He met the concerned oficer of the opposite party and was apprised that the project in question i.e. ³Lotus Pond ´, situated at Indirapu ram, 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 th e same from a c HUWLILHGUHDOHVWDWHDJHQWR ofice bearer s who were ofering some units o n 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. Acording to complainant, the construction of the abovesaid project was no t in terms of the pro mise and assurance s 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 constructin g extra floors in the building . W hen he confronted the opposite party in this regard and sought reasons thereof, he was , rather , threatened of d ir e 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 automa tically mean that the extent of usage of CM (M ) 3109/2024 3 common area would get reduced which would have natural ripple efect over the other facilities including parking . Since there was no r edressal of his grievance s, 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 seking handing over of th e 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 ben refunded by way of demand draft dated 02.08.2013 and , after having acepted the abovesaid refund, the complaint was not maintainable. 13. After completion of pleadings, the complainant filed his afidavit and from the side of opposite party, afidavit of one Sh . Praveen Chandra M ishra was filed. 14. After hearing arguments from both the sides, the learned State Commission disposed of the abovesaid complaint while directing as under : ³17. The act of the OP in canceling the alotment on the ground of default in paym ent by the complainant is nothing but puting a cart before the horse. OP itself was guilty of delay in completing the project, deviating from the initial sanctioned plan. To sum up the complaint is alowed, complainant is directed to make the payment @ Rs .17901 -per. sq. ft. equal to Rs.27,65,501 - minus Rs.10,7,4341 - already paid by complainant vide receipt Ex. P -1 and not refunded by OP. In nutshel complainant will pay Rs.16,8, 16/ - to OP within one month and thereafter, OP would alot flat no. 101 B lock -B in µ/RWXV3RQG¶PHDVXULQJVTIW and execute conveyance deed in respect thereof in favour of CM (M ) 3109/2024 4 complainant. The complainant is not entitled to any compensation separately because he is geting the flat at old rate and the reby earning DSSUHFLDWLRQLQSULFH´ 15. Feling 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: ³8. The Ape lant/OP Builder mainly raised the following objections in the instant Apeal: - (a) The complaint should be dismised as the Complainant is a defaulter throughout, and the flat was rightly canceled by the OP. The complainant accepted a refund of Rs 9,40, 05.75 after cancelation, rendering the complaint non -maintainable. (b) The OP provided prof of alotment of the flat to a third party, Divine Relators, after repeated default reminders to the complainant. The State Comision did not give due credence to the conduct and repeated defaults of the Complainant and relied only on this document, which is questionable. (c) The State Comision's consideration of a cash payment of Rs 10 lakhs aleged by the complainant is improper. It was not paid to the Apel ant, but to a dealer. Thus, atributing this payment to the apelant is unjustified. (d) The complaint co ncerning the "Lotus Pond" flat i s time bared, as the pro ject was completed in 2009 and fully delivered. Th erefore, it should be dismised . (e) The co mpla int is not maintainable without impleading Rishab Estates as a party, and should be dismised. (f) The State Comision ered in deciding the teritorial jurisdiction isue. The cause of acti on arose in No ida, where the complainant made payments, and t he project is situated in Indirapuram, Ghaziabad. Hence, the Commision lacks jurisdiction to entertain the complaint. ´ 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 ben dismissed while observing as under: CM (M ) 3109/2024 5 14. It is an uncontested position that the Complainant had entered into an agrement on 30.08.201 3 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. W hile OP admited receiving Rs.20,16,25/ - from the Complainant, the OP refuted liability towards aditional payment of Rs.10 Lakhs in cash as a premium allegedly paid to the agent of the OP. The Complainant aleged that the Apelant .failed to fulfil their obligations under the agrement, particularly in terms of timely co nstruction and delivery of the flat in question as per agred specifications. In adition, he raised concerns about the unauthorized construction of extra flors, which impacts comon area usage and facilities like parking. On the other hand, the Apelant aserted that they apropriately canceled alotment 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 cancelation. Therefore, the m ain isues to be determined include whether the Apelant fulfiled the contractual obligations, validity of the cancelation of the alotment of the flat, impact of aleged default in payment by the Complainant, legality of seling the flat to a third par ty and the State Comision's jurisdiction to adjudicate the case. 15. The records including the order of the learned State Comision dated 13.09.2019 reveal that, in suport of his claim the Complainant had filed a receipt dated 25.04.205 pertaining to payment of Rs. 7,75,0/ - on 18.,02.2019. This receipt was isued by Shri Rajender Jain of Rishabh Estate. Thereafter, as sought by the Counsel for the Complainant, Shri Rajender Jain of Rishabh Estate was sumoned and his statement was rec orded in part o n 23.07.201.9. He admited his signatures on receipt at the space for signature of the seler 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 alotment price and resale price amounting to Rs. 7,49,325/ -, leaving balance of Rs.6,49,325/ - . He received the amou nt on behalf of Shri Narender Kumar (the original alotee) and paid the same to Shri Narender Kumar. W hile his further statement was defered on 23.07.2019, the witnes did not apear on 08.08.2019 on the ground that a cousin of his was admited in CM (M ) 3109/2024 6 ICU. O n 04.09.2019 the counsel for OP did not apear. The learned State Comision considered that there are endorsements of payment of Rs.3,02,434/ - vide cheque No. 409095 on 23.05.205 to Shri Narender Kumar and Rs. 2,1,62/ - vide two cheques No. 409096 and 4 09097 to M is. Shourya Tower Pvt Ltd. There was also a receipt for Rs.2,50;0/ - by the said Shri Rajinder Jain on 08.06:205. Also, there is endorsement for receipt of Rs.4,25,0/ - on 27.06.205. The total of these cash payments was Rs.7,75,0/ - and the Complainant claimed Rs.10 Lakhs as cash payment made. Of this, Rs.2,1,62/ - was acknowledged by OP and alegedly refunded by the OP. In these circumstances; the learned State Comision considered that the OP canot be alowed to enrich itself with over R s.10,7,434/ - by canceling the alotment and depositing only the undisputed amount in the A/c of the Complainant. W hile 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 qu estions, the same of the Complainant in reporting the mater to police suported 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 cancelation of its alotment, 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 til 26.04.2019. Intriguingly thereafter, on 08.07.2019 it was stated that OP had not executed any sale deed in res pect of the said flat but it had aloted the same to someone else and received the payment. On being directed on 23.07.2019 to file a copy of the aplication of the third person, alotment leter, prof of payment received by it, mode of payment etc the s ame was filed before the State Comision on 04.09.2019. Copy of alotment leter 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 agrement 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 W ritten Statement dated 03.09.2015 filed by the OP , no mention was made of alotment or agrement in favour of M /s Divine Realtors. Clearly, had such agrement dated 30.08.2013 been executed before filing of the writen statement on 03.09.2015, it ought to have included this fact, which is not so. Also, t he OP did not even mention this fact in