JAWALA REAL ESTATE PVT LTD & ANR.versusHARESH

                 [2025] 6 S.C.R. 193 : 2025 INSC 669

                  Jawala Real Estate Pvt Ltd & Anr.
                                 v.
                              Haresh
               (Miscellaneous Application No. 2426 of 2018
                                    In
                      Civil Appeal No. 3294 of 2018)
                                13 May 2025
            [Vikram Nath* and Prasanna B. Varale, JJ.]


                          Issue for Consideration
       The question arose as regards the determination of the amount due
       and payable by the respondent-buyer to the appellant-developer
       for the allotment of flat.

                                 Headnotes†
       Allotment – Allotment of flat – Determination of the amount
       due and payable – Allotment of flat by the appellant-developer
       to the respondent-buyer – Non-payment of the balance
       amount – Cancellation of the allotment by the developer –
       Thereagainst, complaint by the buyer – Despite order of
       the National Commission, the appellant created third-party
       rights with respect to the said apartment, and alienated
       the said apartment – National Commission set aside the
       cancellation order of allotment – Appellant then applied for
       modification of the order passed by the National Commission
       to the extent that an identical apartment may be substituted
       in place of apartment allotted to the respondent – Rejection
       of the application for modification since the appellant was
       in contempt – In appeal, this Court held that the application
       for modification ought to have been allowed by the National
       Commission as no contempt petition had been filed; and that
       whatever amount was payable for the original apartment, the
       same would be payable for the alternate apartment offered –
       However, the said order not implemented – Appellant then filed
       Miscellaneous Application for directions to the respondent
       to comply with the order passed by this Court or, in the
       alternative, to allow the appellant to refund the entire amount


* Author
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       paid by the respondent towards the booking of the original
       apartment along with interest:
       Held: Appellant has not provided the relevant documents asked by
       the respondent relating to the building map, carpet area, relevant
       NOCs right from the beginning – Appellant, being well aware of
       the stay order passed by the National Commission, proceeded
       to alienate the original allotted apartment in gross violation of
       the same – This alienation created further complication in the
       proceedings and also caused considerable delay in the matter –
       Even after the orders passed by this Court, the appellant did not
       come forward with the specific carpet area of the original allotted
       apartment and the alternate offered apartment – Respondent could
       not enjoy the possession of the apartment but the fact also remains
       that the balance consideration remained with the respondent –
       During this period, the appellant has been maintaining the said
       apartment and paying the essential charges to respective bodies/
       associations – As such, there needs to be some adjustment of
       equities between the parties – In order to do complete justice
       between the parties, the respondent directed to pay the total
       amount of Rs. 1,40,71,000/- to the appellant within the stipulated
       period – Said amount is in lieu of clearance of all the outstanding
       dues of interest/taxes and other charges upon the respondent up to
       the date on which possession was handed over to the respondent.
       [Paras 12-14]

                                  List of Acts
       Maharashtra Ownership of Flats Act, 1963.

                               List of Keywords
       Allotment of flat; Non-payment of the balance amount; Cancellation
       of the allotment; Third-party rights; Application for modification;
       Contempt; Alternate apartment; Alienate the original allotted
       apartment; Adjustment of equities; Clearance of all the outstanding
       dues.

                              Case Arising From
       CIVIL APPELLATE JURISDICTION: Miscellaneous Application No.
       2426 of 2018 In Civil Appeal No. 3294 of 2018
       From the Judgment and Order dated 20.03.2018 of the Supreme
       Court of India in DY No. 655 of 2017
[2025] 6 S.C.R.                                                         195

               Jawala Real Estate Pvt Ltd & Anr. v. Haresh


                         Appearances for Parties
      Advs. for the Appellant:
      Siddhartha Dave, Sr. Adv., Vinayak Bhandari, Arnav Narain,
      Ms. Alekhya Shastry, Ms. Teesta Mishra, Ms. Juhi Bahirwani.
      Advs. for the Respondent:
      Ms. V. Mohana, Sr. Adv., Amol Nirmalkumar Suryawanshi,
      Ms. Bhavya Pandey, Ms. S. Soorya Gayathry.

                 Judgment / Order of the Supreme Court

                                   Order

      Vikram Nath, J.

1.    The appellant– Jawala Real Estate Pvt. Ltd., subsequently
      amalgamated with Macrotech Developers Ltd., had allotted a
      three-bed room apartment to the respondent-Haresh sometime in
      the year 2013. The apartment number allotted to the respondent
      was flat no. 6403, B Wing, building known as Lodha Allura (Alpha
      Tower) in their project known as “Lodha Codename Blue Moon”
      situated at Plot CS No. 464, Pandurang Budhkar Marg, Opp. Hard
      Rock Café, Worli, Mumbai-400025. The respondent, in 2013 itself,
      paid Rs. 92,50,744/- being the advance amount out of the total
      sale consideration of Rs. 4,64,86,145/-, and had been requesting
      the appellant to provide relevant documents so that the registered
      agreement could be executed. The appellant, on the other hand,
      was giving written notices that the balance amount be paid failing
      which the allotment would be cancelled.
2.    The appellant cancelled the allotment vide letter dated 28.06.2013.
      This resulted into the respondent filing a complaint before the
      National Consumer Disputes Redressal Commission1registered
      as CC No. 210 of 2013. During the pendency of the proceedings
      before the NCDRC, the appellant, despite having been granted
      time, did not file his written submissions and, as such, their right to
      file the written statement was forfeited on 19.11.2013. By the same
      order, the NCDRC also provided, as an ad interim measure that



1    NCDRC
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       the appellant would not create any third-party rights with respect
       to the apartment in question i.e. apartment No. 6403. Despite the
       same, the appellant admits of having alienated the said apartment
       on 24.11.2014. Additionally, vide application dated 30.11.2015, the
       delay on part of the appellant herein in filing written statement was
       condoned conditionally on the payment of cost of Rs. 50,000/-.
       However, the appellant did not pay the said costs and resultantly,
       the right to file the written statement stood forfeited.
3.     The NCDRC proceeded to allow the complaint, vide order dated
       17.02.2016. The operative part of the aforesaid order is reproduced
       hereunder:
            “11. Keeping in view all these facts and circumstances,
            we hereby set aside the cancellation order of allotment
            dated 28.6.2013 in respect of the premises in dispute.
            We hereby direct the opposite parties to execute and
            register the agreement for sale and agreement in favour
            of the complainant in respect of said residential flat in
            conformity with the provisions of MOFA Act as per clause 6
            quoted above, within 90 days from today and prepare the
            scheduled of payment as per the provisions of MOFA Act
            prescribed under Rule 5, Forum V of MOFA Rules 1964.
            12. It is made clear that opposite parties will charge interest
            @ 9% per annum from the due date till its realisation.
            Needful be done within 90 days from today otherwise it
            will carry penalty of Rs.125/- per day till needful is done.
            The complainant is present in person. He has come from
            Bombay and has suffered the agony and harassment
            for the last 3 years. Consequently, we award Rs.1 lakh
            against the opposite parties. The said amount be paid
            to the complainant within 90 days otherwise it will carry
            interest @ 9% per annum till its realisation.”
4.     As the appellant had already alienated the apartment in question
       despite the stay granted by the NCDRC, during the execution
       proceedings, it applied for modification of the order dated 17.02.2016
       to the extent that an identical flat/apartment just above the apartment
       in question, which would be on the next higher floor being apartment
       no. 6503, may be substituted in place of apartment no. 6403 in the
       order dated 17.02.2016. The NCDRC, vide order dated 16.12.2016,
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                Jawala Real Estate Pvt Ltd & Anr. v. Haresh


      rejected the said application for modification. The NCDRC also made
      a sharp comment on the conduct of the appellant that the order of stay
      was passed in their presence and, as such, it was incomprehensible
      as to how they could have alienated the same by mistake as alleged.
      It observed that as a matter of fact, the appellant was in contempt
      and, therefore, no modification is required.
5.    Aggrieved by the same, the appellant preferred the instant civil
      appeal before this Court.
6.    This Court, by order dated 20.03.2018, was of the view that the
      application for modification ought to have been allowed by the
      NCDRC as no contempt petition had been filed and, accordingly,
      allowed the appeal and set aside the impugned order. This Court
      further directed that whatever amount was payable for the original
      apartment, the same would be payable for the alternate apartment
      offered, and consequently, stipulated a period of two weeks to execute
      the agreement between the parties within two weeks as directed
      by the NCDRC in accordance with the Maharashtra Ownership of
      Flats Act, 19632.
7.    The said order of this Court has still not been implemented in its
      letter and spirit. On behalf of the appellant, it has been contended
      that the appellant sent repeated letters of demand to the respondent
      to make the balance payment and get the agreement executed
      and registered, but the respondent did not pay any heed to these
      letters. On the other hand, according to the respondent, he had been
      repeatedly writing to the appellant to provide necessary clearances,
      the relevant maps and the carpet areas of both the apartments – the
      original as well as the alternate one offered, but he failed to receive
      any response from the appellant.
8.    The appellant filed the instant Miscellaneous Application for
      appropriate directions to the respondent to comply with the order
      dated 20.03.2018 or, in the alternative, to allow the appellant to refund
      the entire amount paid by the respondent towards the booking of the
      original apartment along with interest as agreed in the application
      form. It is this application which has been heard on a number of
      occasions since 2018. The matter was also referred to mediation as


2    MOFA
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       well as Lok Adalat but it could not come to a close. Ultimately, this
       Court, vide order dated 09.09.2024, after recording the respective
       contentions raised by the parties regarding the amounts due as per
       their respective cases, directed the respondent to come ready with
       the demand draft of the balance sale consideration. The Court also
       noted that the interest component, taxes, other society charges
       and other dues would be considered later on. Resultantly, in the
       order dated 30.09.2024, it was recorded that the respondent has
       placed a demand draft of Rs. 3,72,35,401/- being the balance sale
       consideration which was directed to be deposited with the Registry.
       The matter was adjourned to 08.11.2024 when the aforesaid amount
       was directed to be placed in a Fixed Deposit Receipt with any
       Nationalised Bank and the matter was adjourned to 26.11.2024. The
       parties were directed to file the details of the outstanding amount
       and the objections to the same.
9.     The matter was taken up on 10.12.2024 and, after hearing the
       parties, this Court reserved the orders, granted time to file the written
       submissions and further directed that the amount lying in deposit
       with the registry to be handed over to the appellant. Additionally, it
       was directed that the appellant would handover peaceful and vacant
       possession of the apartment i.e. 6503 to the respondent within a
       week. The respondent, in the meantime, was restrained from making
       any structural changes in the apartment, however, the interior work
       was permitted to be carried out. On 20.12.2024, on the request
       of the appellant, it was provided that the payment be released in
       favour of Macrotech Developers Ltd. as the appellant company had
       amalgamated with the said company. It appears that the registry had
       released the amount in favour of the appellant on 30.01.2025 and,
       subsequently, the appellant issued a communication to the respondent
       to take possession on 05.02.2025. The said document has been
       placed on record on 27.02.2025. A perusal of the possession letter
       clearly bears an endorsement by the respondent that he has taken
       possession, subject to order(s) of this Court.
10. The question which now remains for us to determine is the amount
    due and payable by the respondent to the appellant. We have carefully
    and thoroughly examined the respective claims of the appellant and
    the respondent in this regard as submitted by them in their written
    briefs. The appellant has claimed a total amount of Rs.4,96,52,565/-,
    the break-up of the said amount under major heads is as follows:
[2025] 6 S.C.R.                                                         199

                Jawala Real Estate Pvt Ltd & Anr. v. Haresh


     (i).   Interest @ 9% per annum on consideration value as well as
            on other charges: Rs. 3,98,42,426/-
     (ii). Other charges [including infrastructure charges, legal charges,
           utility connection & distribution expenses, club membership
           charges, charges for formation and registration of society,
           Building Common Area Maintenance (“CAM”) charges, additional
           BCAM charges, Federation CAM charges, Additional Federation
           CAM charges and property tax]: Rs. 65,67,208/-
     (iii). Taxes on consideration value: Rs. 23,17,990/-
     (iv). Delayed payment admin charges of 2%: Rs. 9,24,941/-
11. On the other hand, the respondent has admitted liability to pay the
    amount of Rs. 2,15,884/- towards the legal charges, utility connection
    & distribution charges and charges for formation of society. Further,
    the respondent has also agreed to pay an additional amount of Rs.
    15,37,126/- towards infrastructure charges and club membership
    charges, if the Court so directs. With respect to the remaining amounts,
    the respondent has denied its liability placing strong reliance on
    Sections 4 and 6 of the MOFA.
12. Having considered the submissions, the following facts govern the
    quantification of amount which we are crystallising in order to put a
    quietus to this matter:
     (i).   The appellant has not provided the relevant documents asked
            by the respondent relating to the building map, carpet area,
            relevant NOCs right from the beginning. Neither in any of the
            communications to the respondent nor in the submissions before
            us, the appellant has ever stated that it actually provided the
            documents required by the respondent.
     (ii). The appellant, being well aware of the stay order dated
           19.11.2013 passed by the NCDRC restraining it from creating
           any third-party rights, in gross violation of the same, proceeded
           to alienate the original allotted apartment no. 6403 on 24.11.2014
           during the pendency of the proceedings before the NCDRC. This
           alienation has created further complication in the proceedings
           and has also caused considerable delay in the matter preventing
           it from attaining finality.
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       (iii). Even after the orders passed by this Court, the appellant has
              not come forward with the specific carpet area of the original
              allotted apartment and the alternate offered apartment i.e. 6403
              and 6503.
       (iv). The respondent undoubtedly could not enjoy the possession
             of the apartment but the fact also remains that the balance
             consideration of Rs. 3,72,35,401/- remained with the respondent.
             Simultaneously, we cannot lose sight of the fact that during this
             period, the appellant has been maintaining the said apartment
             and paying the essential charges to respective bodies/
             associations. As such, there needs to be some adjustment of
             equities between the parties.
13. We feel that there is no point in dealing with each and every issue
    raised by both the parties. However, in order to do complete justice
    between the parties, in the peculiar facts and circumstances of the
    case, we direct that the respondent shall pay the following amounts:
       i)     Admitted amount of Rs. 2,15,884/-
       ii)    Amount that the respondent is ready to pay on the direction of
              the Court – Rs. 15,37,126/-
       iii)   Taxes on consideration value – Rs. 23,17,990/-
       iv)    Amount of Rs. 1 crore over and above the above-mentioned
              amounts.
14. As such, the respondent is directed to pay the total amount of Rs.
    1,40,71,000/- (Rupees One crore forty lakhs seventy-one thousand
    only) to the appellant within 8 weeks from the receipt of this order. The
    payment of above amount is being provided in lieu of clearance of all
    the outstanding dues of interest/taxes and other charges etc. upon
    the respondent up to 05.02.2025, i.e. the date on which possession
    has been handed over to the respondent. We make it clear that
    whatever charges and dues may accrue with respect to the use
    and occupation of the apartment post the handover of possession,
    the respondent would be liable to pay such amounts in addition to
    the above-decided amount. The parties are further directed to get
    the agreement to sale/sale deed executed within two months after
    the aforesaid payment is made. The expenses for the stamp duty,
    registration etc. would be borne by the respondent in accordance
[2025] 6 S.C.R.                                                  201

                  Jawala Real Estate Pvt Ltd & Anr. v. Haresh


     with law. The restriction imposed, vide order dated 10.12.2024,
     regarding structural changes stands discharged.
15. The Miscellaneous Application No. 2426 of 2018 stands disposed
    of accordingly.

     Result of the case: Miscellaneous Application disposed of.



     †
         Headnotes prepared by: Nidhi Jain