Author: Rushikesh Patil National Law University, Nagpur Editor: Grishma Mahatme Symbiosis Law School, Pune
In this case, we will cover and give an overview of the M/s Cosmos Infra Engineering India Pvt. Ltd vs. Mrs. Teena Sood & Varun Sood and it will give you a brief yet precise outline regarding all the major facts and issues involved in this particular case which basically revolves around abandonment of relief.
Applicant:- M/s Cosmos Infra Engineering India Pvt. Ltd., 5A, C, D, 5th Floor, Vandhna Building 11,
Tolstoy Marg, Delhi-110057
Respondent:- 1. Mrs. Teena Sood
Varun Sood Apartment No.14B, Level 15, DLF Building, DLF PhaseIII, Cyber City,
Bench:- Justice Darshan Singh (Retd.) Chairman
Shri Inderjeet Mehta Member (Judicial)
Shri Anil Kumar Gupta Member (Technical)
Court:- Haryana Real Estate Appellate Tribunal
Decision/ Judgement Date:- 21.07.2020
Facts of the case: The respondents/allottees filed complaint before the learned Authority with the allegations that they were allotted unit No.D-403, Sector-99, Tower-D, in the project “Cosmos Express 99” Gurugram, admeasuring 1310 sq. ft. for a total sale consideration of Rs.82,62,185/-. They paid a sum of Rs.65,68,596/- to the appellant/promoter. The “Flat 3 Appeal No.349 of 2019 Buyers Agreement” (hereinafter called ‘the Agreement’) was executed on 02.03.2013. The possession of the unit was to be delivered within a period of four years from the date of execution of the agreement plus six months as a grace period. It is further pleaded that the appellant/promoter failed to complete the project within the stipulated period as per the terms and conditions of the agreement dated 02.03.2013. Thus, the respondents/allottees have suffered mental torture, agony and financial losses. They have sought the refund of the amount paid by them along with interest.
The complaint filed by the respondents/allottees was contested by the appellants/promoters on the grounds inter alia that the respondents/allottees have suppressed the material facts; that they did not make the timely payments as per the payment schedule; that the respondents/allottees are not the genuine customers as they invested the money to make profit by selling the unit at higher price; that 70% of the construction work has already been completed and possession will be delivered in a short span of time. All other averments made in the complaint were controverted and the appellant/promoter pleaded for dismissal of the complaint.
After hearing learned counsel for the parties and appreciating the material on record, the learned Authority disposed of the complaint with the directions as reproduced in the upper part of this judgment. 4 Appeal No.349 of 2019
Aggrieved with the aforesaid order dated 10.04.2019, the present appeal has been preferred by the appellant/promoter under Section 44 of the Real Estate (Regulation and Development) Act, 2016.
Timeline of events:-
02-03-2013:- Flat buyers’ agreement was executed by both the parties.
10.04.2019:- Order passed by the learned Haryana Real Estate Regulatory Authority, Gurugram.
14-07-2020:- Appeal was filed on behalf of M/s Cosmos Infra Engineering India Pvt. Ltd
21-07-2020:- Final Decision date.
Issues/ Controversies involved:-
Does the jurisdiction of the court is determined on the basis of relief or on the basis of
The contentions made by the appellant are:
1) The respondents/allottees have filed the complaint for refund along with interest. As per the judgment of this Tribunal in “Sameer Mahawar Versus MG Housing Pvt. Ltd. the learned Authority had no jurisdiction to entertain and try the complaint, and hence the impugned order passed is non-est and nullity
2) Jurisdiction of the court is to be determined on the basis of pleadings and not the relief and therefore even though the respondents have changed their relief, they cannot be allowed to wriggle out from the legal consequences at the appellate stage by claiming only the interest to confer the jurisdiction as the jurisdiction of the Court cannot be conferred either by consent or by waiver
The contentions made by the respondent are:
1) The learned Authority has not granted the relief of refund, rather only interest for delayed possession has been awarded for which the learned Authority has complete jurisdiction and the impugned order cannot be stated to be nullity or non-est. And the respondents are quite satisfied with the order.
2) The respondents have given up the claim of refund sought in the complaint. They wanted to pursue the case only for grant of interest for delayed possession and not for the relief of refund and therefore the tribunal had jurisdiction to pass the order.
Findings of the court :- In the case of ‘Sameer Mahawar Versus MG Housing Pvt. Ltd’ the court the judgement was held that the learned authority did not have jurisdiction to adjudicate upon the issue regarding refund. And in the case of ‘Ramprastha Promoters and Developers Pvt. Ltd. Vs. Ishwer Chand Garg’ it was decided that the authority has jurisdiction when the claim is for grant of interest due to delay in delivery of possession.
In this case the respondents have made their position clear that they do not sought relief of refund but the grant of interest which due to delay in delivery of possession.
Conclusion:- The tribunal does not have jurisdiction in the cases where the relief of refund is sought. But it is competent to deal with the complaint where the claim is for grant of interest due to delay in delivery of possession.
Judgements quoted on settled law:-
i) Sameer Mahawar Versus MG Housing Pvt. Ltd Appeal No.310 of 2019
ii) Sushil Kumar Mehta Vs. Gobind Ram Bohra, 1990(1) PLR 182
iii) Sarwan Kumar and another vs. Madan Lal Aggarwal, AIR 2003 SC 1475
iv) Ramprastha Promoters and Developers Pvt. Ltd. Vs. Ishwer Chand Garg, Appeal No.349 of 2019
v) Shri Umakant B. Kenkre & Another Vs. Shri Yeshwant P. Shirodkar & others, 1999(3) BomCR 611
vi) Gurmeet Kaur and others Versus Hardeep Singh and another, 2005(2) R.C.R. (Civil) 149.
vii) Lakshmi Narayan Guin Versus Niranjan Modak, AIR 1985 SC 111
viii) M/s Sahara India Commercial Corporation Limited and others Versus Uday Shankar Paul and others, 2013(54) R.C.R. (Civil) 1]