KAUSHIK NARSINHBHAI PATEL & ORS.versusM/S S.J.R. PRIME CORPORATION PRIVATE LIMITED

                  [2024] 7 S.C.R. 823 : 2024 INSC 542

                Kaushik Narsinhbhai Patel & Ors.
                                v.
           M/s S.J.R. Prime Corporation Private Limited
                        (Civil Appeal No. 8176 of 2022)
                                   22 July 2024
              [C.T. Ravikumar* and Sanjay Kumar, JJ.]

                             Issue for Consideration
       Whether a party whose right to file written statement is closed can
       file written submissions to introduce pleadings to resist the claim
       against it; and if not, then what is the scope of its participation of
       in the proceedings once the right to file written submissions has
       closed. Lastly, what is the impact of the forfeiture of the right to
       file a written statement.

                                    Headnotes†
       Consumer Protection Act, 2019 – Developer filed written
       submissions – Defiance of earlier order of Supreme Court
       closing Developer’s right to file a written statement:
       Held: The Supreme Court passed an order closing the right of
       the Respondent to file a written statement in the proceedings
       before the NCDRC, however, the Order permitted the Respondent
       to participate in the proceedings – The Respondent is bound by
       the earlier Order of the Supreme Court, and could have not been
       permitted to introduce its case through written submissions – The
       objections raised by the Respondent cannot be looked to the extent
       it carried pleadings, which could have been let in through a written
       statement. [Paras 13, 18]
       Code of Civil Procedure, 1908 – Impact of forfeiture of
       opportunity to file written statement – Party would have the
       right to participate in the proceedings and cross-examine the
       witnesses:
       Held: All the provisions of the Code of Civil Procedure, 1908 are
       not applicable to proceedings before Consumer Forums under the
       Consumer Protection Act, 2019, except to the extent it is provided
       under Section 38(9) of the Consumer Protection Act – In the
       absence of specific provisions dealing with the consequence of
       forfeiture of the right to file a written statement, it is appropriate to
* Author
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       refer to the provisions in the CPC to know the general law on this
       question – Reliance placed on the Judgment in Nanda Dulal Pradhan
       & Anr. vs. Dibakar Pradhan & Anr. 2022 SCC OnLine SC 822,
       which laid down that even if the defendant/opposite party failed to
       file a written statement and, in that matter, even if forfeiture of the
       right to file written statement has occasioned, it would not disentitle
       the party from participating the proceedings before the court, without
       filing a written statement – In such circumstances, the said party
       would also be have the right to cross-examine the witness(es), if
       any, of the plaintiff/complainant – Closure of the right to file written
       statement bars the party from bringing in pleadings, indirectly to
       introduce its case. [Paras 14, 18]
       Code of Civil Procedure, 1908 – Order VI – A party cannot
       make out a case on the basis of evidence for which he has
       laid no foundation in the pleadings:
       Held: Order VI Rule 1 and 2 of the CPC provide that every pleading
       shall contain only a statement of the facts, but not the evidence
       by which it is to be proved – The rigours of the rule of pleadings
       is evident from Rule 7 of Order VI, CPC, which mandates that
       ‘no pleading shall, except by way of amendment, raise any new
       ground of claim or contain any allegation of fact inconsistent with
       the previous pleadings of the party pleading the same’ – Reliance
       placed on the Judgment of a Division Bench of the Karnataka
       High Court in Nalini Sunder vs. GV Sunder AIR 2003 Kar 86,
       wherein it was held that a party could not make out a case on
       the basis of evidence for which he/she has laid no foundation in
       the pleadings.[Paras 16, 17]
       Civil law – Forfeiture to file written statement does not by itself
       make it obligatory to pass an order in favour of the Complainant:
       Held: Even when the opposite party’s right to file a written statement
       is forfeited, that by itself, will not make it obligatory on the part
       of the NCDRC to pass an order in favour of the complainant, in
       case the complainant failed to establish its case – This power is
       to be read into the jurisdiction of a body with adjudicating power –
       There is a difference between a situation of non-filing of a written
       statement owing to forfeiture of the right to file a written statement
       and absence of denial of specific pleadings of complainant in the
       written statement. In the latter case, absence of denial of specific
       pleadings on facts they can be taken as admitted. [Para 19]
[2024] 7 S.C.R.                                                           825

                  Kaushik Narsinhbhai Patel & Ors. v.
              M/s S.J.R. Prime Corporation Private Limited

                             Case Law Cited
     Nanda Dulal Pradhan & Anr. v. Dibakar Pradhan & Anr. [2022]
     7 SCR 483 : 2022 SCC OnLine SC 822; Nalini Sunder v. GV
     Sunder AIR 2003 Kar 86; R.V. Prasannakumaar & others. v. Mantri
     Castles Private Limited & Another [2019] 5 SCR 821 : (2020) 14
     SCC 769 – referred to.

                                List of Acts
     Code of Civil Procedure, 1908; Consumer Protection Act, 2019.

                             List of Keywords
     Consequence of non-filing of written statement; Forfeiture of right
     to file written statement.

                            Case Arising From
     CIVIL APPELLATE JURISDICTION: Civil Appeal No.8176 of 2022
     From the Judgment and Order dated 15.09.2022 of the National
     Consumer Disputes Redressal Commission (NCDRC), New Delhi in
     Consumer Complaint No.945 of 2019

                         Appearances for Parties
     Mr. Ajit Kumar Sinha, Sr. Adv., Govind Jee, Kartikeya Khanna,
     Omanakuttan K K, Ayush Mishra, Mrs. Parul Dhurve, Advs. for the
     Appellants.
     Balaji Srinivasan, Devamshu Behl, Advs. for the Respondents.

                Judgment / Order of the Supreme Court

                                Judgment
     C.T. Ravikumar, J.
1.   The appellants, 46 in numbers, along with respondent Nos.2 to 6
     herein (proforma respondents) filed Consumer Case No. 945 of
     2019, against Respondent No.1 herein, complaining of deficiency in
     service raising various grounds, which culminated in the impugned
     order dated 15.09.2022 of the National Consumer Disputes Redressal
     Commission (NCDRC), New Delhi. Allured by the representation of
     the first respondent-builder, each of the appellants booked separate
     flats in its declared project namely, ‘Fiesta Homes by SJR Prime’. A
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       Construction Agreement dated 31.03.2012 was entered into between
       the complainant and Respondent No.1 (Annexure P-2). Going by
       Clause 6.1 of the Construction Agreement, possession of flats was
       liable to be handed over, after completion of the construction, on or
       before March, 2014, with a grace period of six months. However,
       considerable delay had occurred in completing and handing over
       possession of flats and as per the complainants, it was after about
       four years down the timeline that possession was handed over to
       them. Deficiency in construction aggravated the situation and made
       the appellants and the proforma respondents (hereinafter referred for
       brevity, ‘the complainants’ unless otherwise specifically mentioned)
       to approach the NCDRC by filing the aforesaid complaint seeking
       the following reliefs: -
            “i. Pay to each of the complainants & to each buyer having
            same interest, compensatory interest @ 18% p.a. for
            abnormal & inordinate delay in handing over possession
            of flats to complainants, computing the total period of delay
            as indicated in Para 11.11 of the Consumer Complaint;
            ii. Refund the illegally charged car parking fee to
            complainants & to each buyer having same interest with an
            interest @ 18% p.a. & to hold the OP guilty of committing
            unfair and restrictive trade practice against the complainants
            & also against each buyer having same interest;
            iii. Refund to the complainants & to all buyers having same
            interest, the excess and illegally charged “legal fee” at the
            actual with an interest @ 18% p.a. and also to declare the
            OP guilty of committing unfair & restrictive trade practice
            against the complainants and also against each buyer
            having same interest;
            iv. Refund to the complainants & to all buyers having same
            interest, fee charged towards BESCOM & BWSSB charges
            after deducting as per actual with an interest @ 18% p.a.
            & also to declare the OP guilty of committing unfair and
            restrictive trade practice against the complainants & also
            against each buyer having same interest; and/or
            v. Direct OPs to provide in time bound manner, Green
            Jogging Track and Convenience Store as promised in
[2024] 7 S.C.R.                                                            827

                  Kaushik Narsinhbhai Patel & Ors. v.
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           Brochure, else pay compensation of Rupees Five Lakhs
           to each complainant and to each buyer having same
           interest; and/or
           vi. Pass any other and/or further relief, which this Hon’ble
           Commission thinks fit and proper, in the facts and
           circumstances of the case, in favour of the complainants
           and against the OP.”
2.   The complaint was partially allowed by the NCDRC as per the impugned
     order dated 15.09.2022. Before considering the rival contentions
     raised before us, it is worthwhile to refer to certain vital facts.
3.   The complainants filed Consumer Complaint No.945 of 2019 in May,
     2019. Subsequent to its filing, the first respondent-builder issued
     certain e-mails to complainants between January, 2020 to June,
     2020, addressing them individually and requiring them to contact
     its legal department in connection with the grievance raised in C.C.
     No.945 of 2019. Though this was done during the pendency of the
     Consumer Complaint, and that too, in respect of the grievance raised
     in C.C. No.945 of 2019, notice to the first respondent remained
     unserved. Thereupon, the NCDRC passed an order on 27.01.2021
     on the following lines: -
           “Notice of the complaint still remains unserved. Issue
           fresh notice of the Complaint along with all pending
           applications to the Opposite Party under Section 38 (3)
           (a) of the Consumer Protection Act, 2019 making it clear
           that if the Opposite Party wishes to contest the allegations
           in the Complaint, it may file the Written Statement within
           thirty days of the receipt of notice in the complaint, failing
           which its right to file Written Statement may be closed.”
4.   The aforesaid order was challenged by the appellants before this
     Court in Civil Appeal No.715 of 2021 which was allowed as per
     (Annexure P-18, referred as such in the SLP) order dated 11.08.2021.
     Taking note of certain indisputable and undisputed factual position,
     this Court arrived at the conclusion that the first respondent-builder
     was well aware of the pendency of the C.C. No.945 of 2019 before
     the NCDRC and went on to hold thus: -
           “The conduct on the part of respondent-builder in not
           filing written statement does not entitle him to any further
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            benefit. It must, therefore, be declared that the respondent
            has forfeited his right to have filed written statement and
            it is hereby declared so.
            The appeal, therefore, stands allowed. The C.C.No.945 of
            2019 shall now be proceeded further without the written
            statement of the respondent-builder. It shall however,
            be open to the respondent-builder to participate in the
            proceedings.”
5.     We will refer to the contentions raised based on Annexure P-18
       order and its tenability or otherwise, a little later. Subsequent to
       Annexure P-18 order, NCDRC considered C.C. No.945 of 2019,
       which culminated in the order impugned in this appeal.
6.     Heard, Mr. Ajit Kumar Sinha, Senior Counsel appearing for the
       appellants and Mr. Balaji Srinivasan, learned counsel for the first
       respondent.
7.     A scanning of the impugned order would reveal that the NCDRC
       has recorded a clear finding that there occurred delay in handing
       over the flats to the appellants. As a necessary sequel to such
       finding and findings on the other allied grievance and claims, the
       impugned order was passed on 15.09.2022. The operative portion
       of the impugned order reads thus: -
            “In view of the aforesaid discussions, the complaint is
            partly allowed. The opposite party is directed to pay
            delayed compensation in the shape of interest @ 6 %
            per annum on the deposit of the complainants from due
            date of possession as determined for each buyer in the
            manner as provided in paragraph-8 of the judgment till the
            date of offer of possession and construct Green Jogging
            Track and Convenience Store, within a period of two
            months from the date of this judgement.”
8.     It is to be noted that despite the nature of the impugned order and
       creation of liability on the first respondent, as above, the complainants
       alone have chosen to prefer appeal and the first respondent No.1
       has not chosen to challenge the same. In the said circumstances,
       the findings of NCDRC on delayed handing over of the flats to the
       complainants and on non-construction of Green Jogging Track and
       Convenience Store can only be taken as having become final. Ergo,
[2024] 7 S.C.R.                                                           829

                  Kaushik Narsinhbhai Patel & Ors. v.
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     the scope of this appeal is limited to a few questions, which we will
     discuss and deal with later.
9.   For a proper disposal of this appeal, it is apposite to refer to paragraph
     8 of the impugned order, which reads as follows: -
           “In the present case, due date of possession was
           September, 2014, while “occupancy Certificate” was
           obtained 17.05.2017 and possession was delivered
           thereafter. The complainants have not given date-wise
           payment schedule. Schedule-E of this agreement contained
           “Construction Linked Payment Plan” under which, total sale
           consideration was payable in 12 instalments on different
           levels of the construction. As such for the purposes of
           delayed compensation, we think it appropriate that due
           date of possession will be considered after expiry of six
           month from the payment of 11th instalment by the home
           buyer. The developer would be entitled for further six
           months as grace period. The developer shall pay delayed
           compensation in the shape of interest @ 6% per annum
           on the deposit of the complainants from the due date of
           possession as determined in accordance of above formula
           till the date of actual possession.”
10. One of the main contentions of the appellants is that ignoring
    Annexure P-18 order of this Court, the NCDRC virtually permitted
    the first respondent to introduce facts to dispute their claims
    and complaints inasmuch as the opportunity offered to the first
    respondent by NCDRC to file written submissions was utilised by
    the first respondent to introduce new facts to resist their claims and
    contentions. Such newly introduced facts and factors by the first
    respondent through written submissions, obviously, weighed with
    NCDRC in adopting the formula followed in paragraph 8 of the
    impugned order, for the purpose of computation of compensation
    payable to the complainants, it is contended.
11. We will straight away verify the verity of the aforesaid contentions
    with reference to Annexure P-18 order dated 11.08.2021, firstly,
    to see whether the same was overreached and then, subject to
    its answer and consequences of its defiance. A bare perusal of
    Annexure P-21, which is the written submissions on behalf of the first
    respondent herein (opposite party therein) filed before the NCDRC
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       and marked as such in this proceeding, without any peradventure
       would go to show that in and vide the said written submissions, the
       first respondent had introduced some pleadings to resist the claims
       and the contentions of the complainants in CC No.945 of 2019 and
       eventually, to offer its explanation for the delay in handing over
       possession of the flats. The raison d’etre for our remarks would
       be unravelled by a mere perusal of Annexure P-21. Paragraph 3
       thereof, opens thus: -
            “The complainants do not deserve any compensation as,”
            (underline supplied)
12. Thenceforth, under para 3 (i) to 3 (iii), the respondents gave the
    reasons therefor. Through paragraph 4 of Annexure P-21, the
    respondent introduced further reasons to support its stand that the
    complainants do not deserve compensatory interest for the delay
    in handing over possession of flats. It is to be noted that even after
    taking a stand at paragraph 5 thereof that there was no delay at all
    from its part, the first respondent proceeded to explain the delay
    in paragraph 6. The statements made in the further paragraphs of
    Annexure P-21 also carry, either the case of the first respondent or
    its explanations/reasons to counter the claim of the complainants.
    To put it pithily, the first respondent, on being given the opportunity
    to file written submission, made use of it to make good its failure
    to file a written statement despite the fact that its right to file the
    same was declared as forfeited by this Court.
13. We are at a loss to understand as to how, such an opportunity could
    have been utilised by the first respondent in defiance to the specific
    directions of this Court under Annexure P-18 order and to file a
    written submission of such a nature. Under Annexure P-18 order, this
    Court declared that the first respondent had forfeited its right to file
    a written statement and then permitted, rather, directed to proceed
    further without the written statement of the first respondent-builder.
    True that even then its right to participate in the proceedings was
    protected, presumably, taking into account the position of law in that
    regard. We will deal with the scope of such permitted participation
    as also the consequence of the act of defiance of Annexure P-18
    order depending on its degree of defiance and its impact. In doing
    so, we will have to keep reminded of the principle of law that what
    cannot be done directly, cannot be done indirectly.
[2024] 7 S.C.R.                                                          831

                    Kaushik Narsinhbhai Patel & Ors. v.
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14. The discussion as above, would take us to the next question as to
    what is the impact of forfeiture of opportunity to file written statement?
    We are fully aware of the fact that all the provisions in the Code
    of Civil Procedure, 1908, (for short ‘the CPC’) are not proprio
    vigore applicable to proceedings before Consumer Forums created
    under the Consumer Protection Act, 2019, except to the extent it is
    provided under Section 38 (9) of the Consumer Protection Act. Be
    that as it may, in the absence of specific provisions dealing with the
    consequence of forfeiture of the right to file a written statement, it
    is only appropriate to refer to the provisions and positions dealing
    with such situations in the CPC to know the general law on this
    question. In this context, it is worthy to refer to a decision of this
    Court in Nanda Dulal Pradhan & Anr. v. Dibakar Pradhan & Anr.1
    It was held therein thus: -
            “……as observed and held by this Court in the case of
            Sangram Singh (supra) on setting aside the ex parte
            decree and on restoration of the suit the parties to the
            suit shall be put to the same position as they were at the
            time when the ex parte judgment and decree was passed
            and the defendants may not be permitted to file the written
            statement as no written statement was filed. However,
            at the same time they can be permitted to participate in
            the suit proceedings and cross examine the witnesses.
            In that view of the matter the impugned judgment and
            order passed by the High Court is unsustainable. Still, on
            setting aside the ex parte judgment and decree, though
            the defendants who had not filed the written statement,
            can be permitted to participate in the suit and cross
            examine the witnesses. Therefore, the High Court is not
            right in observing that as no written statement was filed
            by the defendants, the reopening of the suit by setting
            aside ex parte judgment and decree will become futile.
            As observed hereinabove the High Court has not at all
            observed anything on the correctness of the order passed
            by the First Appellate Court setting aside the ex-parte
            judgment and decree on merits.



1   [2022] 7 SCR 483 : 2022 SCC OnLine SC 822
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15. Thus, the position is that even if the defendant/opposite party failed
    to file a written statement and, in that matter, even if forfeiture of the
    right to file written statement has occasioned it would not disentitle
    that party from participating in the further proceedings, without filing
    a written statement and in such circumstances, the said party would
    also be having the right to cross-examine the witness(es), if any, of
    the plaintiff/complainant.
16. In the contextual situation, it is also appropriate to refer to Rule 1
    & 2, Order VI of the CPC which reads thus:-
            “Pleading. - “Pleading” shall mean the plaint or written
            statement.”
            Rule 2, Order VI, in so far as, reads thus: -
            “(1) Every pleading shall contain, and contain only, a
            statement in a concise form of the material facts on which
            the party pleading relies for his claim or defence, as the
            case may be, but not the evidence by which they are to
            be proved.”
17. The rigour of the rule of pleadings is evident from Rule 7 of Order
    VI, CPC, which mandates that ‘no pleading shall, except by way of
    amendment, raise any new ground of claim or contain any allegation
    of fact inconsistent with the previous pleadings of the party pleading
    the same’.
18. In the context of the aforesaid provisions under the CPC, it is apt to
    refer to a decision of a Division Bench of the Karnataka High Court
    in Nalini Sunder v. GV Sunder.2 It was held therein that a party
    could not make out a case on the basis of evidence for which he/
    she has laid no foundation in the pleadings. It is fairly settled that
    no amount of evidence can prove a case of a party who had not
    set up the same in his/her pleadings, it was further held therein.
    According to us, it is the correct proposition of law. In the absence of
    any specific provisions dealing with non-filing of written statements/
    forfeiture of the right to file a written statement, taking note of the
    general position as above, it can only be held that it should bar
    the opposite party in a proceeding before the Consumer Redressal



2   AIR 2003 Kar 86
[2024] 7 S.C.R.                                                       833

                  Kaushik Narsinhbhai Patel & Ors. v.
              M/s S.J.R. Prime Corporation Private Limited

     Forums to bring in pleadings, indirectly to introduce its/his case
     and evidence to support such case. In the situations mentioned
     above, the right of the opposite party is confined to participate in
     the proceedings without filing a written statement and to cross-
     examine witness(es), if any, examined by the complainant(s). It be
     the position of law, the first respondent who is bound by Annexure
     P-18 order could not have been permitted to introduce its case to
     defend the case of the complainants through written submissions
     though it was rightly permitted to participate in the proceedings.
     There is no case for the first respondent that it sought permission
     to cross-examine Kaushik Narsinhbhai Patel who filed affidavit of
     evidence and produced documentary evidence. At any rate, no
     such case was put forth by the first respondent and no grievance
     of denial of such opportunity was also raised. In the circumstances
     expatiated above, in view of Annexure P-18 order the reply and
     objection filed by the first respondent herein in this proceeding also
     cannot be looked to the extent it carries pleadings relating its case,
     the reasons and objections which could have been let in through a
     written statement. In short, the first respondent could be permitted
     only to argue the legal questions arising based on authorities
     and provisions of law as also regarding lapses or laches and the
     consequential non-admissibility or otherwise of evidence, let in by
     the appellants.
19. Having held as above, the next question to be looked into is whether
    NCDRC had given weight to any such pleadings and contentions
    taken by the first respondent in its written submissions and/or whether
    the decision of NCDRC is based on any fact, factors or data furnished
    by the first respondent beyond the extent permissible on account
    of the legal trammel of forfeiture of its opportunity to file a written
    statement. At this juncture, we may hasten to add that even when
    the defendant’s/opposite party’s right to file a written statement is
    forfeited that by itself will not make it obligatory on the part of the
    NCDRC to pass an order in favour of a complainant in case the
    complainant concerned failed to establish its case. This power is
    to be read into the jurisdiction of a body with adjudicating power.
    This is because there is distinct difference between a situation of
    non-filing of a written statement pursuant to a declaration that the
    opposite party had forfeited the right to file a written statement and
    absence of denial of specific pleadings of complainant in the written
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       statement filed by an opposite party. Certainly, in the latter case,
       absence of denial of specific pleadings on facts they can be taken
       as admitted. In the case on hand, it is to be noted that actually as
       per order dated 27.01.2021, NCDRC had granted time to the first
       respondent to file a written statement with a caution that in case of
       failure to file the same within the stipulated time, the right to file a
       written statement would be closed. It is this order dated 27.01.2021
       that was challenged by the complainants that ultimately culminated
       in Annexure P-18 order of declaration of forfeiture.
20. A close scrutiny of the impugned order in juxtaposition with the written
    submissions filed by the first respondent would go to show that
    NCDRC had not actually accepted the case of the first respondent
    raised in defence in its written submissions or in that matter, no reason
    or objection raised in the written statement was also adverted to,
    for rendering its decision on the complaint. In such circumstances,
    though the action on the part of the first respondent who suffered
    Annexure P-18 order, in bringing on record its case and contentions
    to resist the case and contentions of the complainants, cannot be
    appreciated, the contention of the appellants based on the same
    became inconsequential. As stated earlier, in view of Annexure
    P-18 order, we are also not going to advert to any case, claims or
    contentions of the first respondent raised in its reply and objection
    filed in this proceeding, except to the legally permissible limit, in case
    any such material is available on record. We have already concurred
    with the decision of the Karnataka High Court in Nalini Sunder’s
    case (supra) that a party could not make out a case on the basis of
    evidence for which he/she had laid no foundation in the pleadings.
    In the absence of a written statement, naturally, there can be no
    pleadings, in the case, for the first respondent in the eyes of law.
    Though the first respondent participated in the proceeding before
    the NCDRC, it could not bring-forth anything admissible in view of
    the impact of forfeiture under Annexure P-18 order.
21. The discussion as above would lead to the last question as to
    whether the impugned order invites interference on any other
    ground. The core contention of the appellants that while passing
    the impugned order, NCDRC failed to consider the relevance and
    impact of Clause 6.1 of the Construction Agreement. No doubt, it is a
    matter that requires consideration. Clause 6 of the said Construction
    Agreement reads thus: -
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                  Kaushik Narsinhbhai Patel & Ors. v.
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           “6) COMPLETION & DELIVERY OF POSSESSION:
           6.1) The possession of the Schedule ‘C’ apartment in
           Schedule ‘A’ Property will be delivered by the Second
           Party to the First Party after completion of construction
           as far as possible on or before the month of March year
           2014 with Six months grace period additionally.
           6.2) ….
           6.3) In case of delay in delivery of the apartment for
           reasons other than what is stated above, the Second
           Party is entitled to a grace period of Six months and if
           the delay persists, the Second Party shall pay the First
           Party damages at Rs. 2/- (Rupees Two Only) per Sq. Ft.
           super built up area per month of delay of the Schedule ‘C’
           Apartment till delivery, provided the First Party has/ have
           paid all the amounts payable as per this Agreement and
           within the stipulated period and has not violated any of
           the terms of this agreement and Agreement to Sell….”
22. A perusal of Clause 6.1 of the Construction Agreement would reveal
    that it specifically mentions the promised date for handing over the
    possession viz., the due date for handing over possession as ‘on or
    before March, 2014’. True that in terms of Clause 6.1, additionally,
    six months grace period is available to the first respondent-builder.
    Thus, going by the terms of Construction Agreement, the due date
    for handing over possession of flats could have been, rather should
    have been fixed only in terms of Clause 6.1 of the said Agreement.
    However, the impugned order would reveal that without considering
    Clause 6, the due date for handing over of possession of flats was
    fixed by the NCDRC by reckoning six months grace period from the
    date of payment of instalment No.11 (eleven), by the home buyer.
    Therefore, the question is which among the two methods is legally
    permissible. While the appellants contend that the former is bound
    to be followed in the matter of fixing the due date for handing over
    possession of flats, the first respondent would contend that the
    method adopted by the NCDRC is just and reasonable and there
    is no warrant or justifiable reason for any kind of interference. The
    decision in R.V. Prasannakumaar & Others. v. Mantri Castles
836                                                          [2024] 7 S.C.R.

                          Digital Supreme Court Reports


       Private Limited & Another.,3 referred to by the NCDRC, itself
       would answer this issue. In R.V. Prasannakumaar’s case (supra),
       going by the terms of the flat purchase agreement, possession of
       flats was liable to be handed over to the buyers on 31.01.2014.
       In that case about two years delay had occurred in the matter
       of handing over of possession. Consequently, NCDRC took the
       due date for handing over of possession with reference to the flat
       purchase agreement and fixed it as 01.02.2014. The fixation of the
       due date for possession as 01.02.2014 was upheld by this Court in
       R.V. Prasannakumaar’s case (supra). If that be so, in the absence
       of any exceptional circumstances, NCDRC should have fixed the
       date for possession in the same manner as has been done in R.V.
       Prasannakumaar’s case (supra), viz., in terms of the conditions
       in the Construction Agreement. True that in view of the specific
       condition for grant of six months grace period additionally to the
       buyer, the due date for possession in terms of Clause 6.1 of the
       agreement ought to have been fixed by reckoning six months from
       March, 2014, the promise date for handing over the flats mentioned
       in the Construction Agreement. A scanning of the impugned order
       would reveal no exceptional circumstances for making deviation
       from the formula followed in R.V. Prasannakumaar’s case (supra)
       for fixing the due date for possession. NCDRC observed that the
       complainants have failed to give date-wise payment schedule. We
       are at a loss to understand as to how that can be a reason for
       fixing the due date for possession in total disregard to the method
       adopted in R.V. Prasannakumaar’s case (supra). The discussion
       in paragraph 8 would suggest that NCDRC after taking into account
       the fact that Schedule-E of the agreement contained ‘Construction
       Linked Payment Plan’ whereunder the sale consideration was to
       be paid in 12 instalments on different levels of construction, formed
       the opinion that the fixation of due date for possession is closely
       linked with payment of instalments as mentioned in Schedule-E.
       We have no hesitation to hold that there is no rationale for such a
       conclusion for the reason that as it was arrived at without considering
       the relevant condition contained in Clause 6.1 of the Construction



3   [2019] 5 SCR 821 : (2020) 14 SCC 769
[2024] 7 S.C.R.                                                          837

                  Kaushik Narsinhbhai Patel & Ors. v.
              M/s S.J.R. Prime Corporation Private Limited

     Agreement which relates to fixation of due date for possession.
     True that Schedule-E contained ‘Construction Linked Payment Plan’
     and it provides for payment in 12 instalments on different levels of
     construction. Certainly, it was so incorporated to obligate the buyer
     to pay the due instalment depending upon the stage of construction.
     Hence, delay in effecting construction cannot be a reason for denying
     compensation, which was also contemplated under Clause 6 of the
     Construction Agreement. The effect of ‘Construction Linked Payment
     Plan’ is that it obligates the builder to complete construction up to
     a particular required level at the given point of time and upon such
     accomplishment, obligates the buyer to effect the due instalment.
     According to us, the non-furnishing of a date-wise payment schedule
     could not have been a reason for deviating from the formula
     followed in the matter of fixation of due date of possession in R.V.
     Prasannakumaar’s case (supra). That apart, in the case on hand,
     the fact is that the complainants have effected the payment of
     sale consideration and were handed over possession of flats. The
     compensation is claimed by the complainants for the considerable
     concutation in construction and in handing over possession of flats.
     At any rate, in the circumstances obtained in this case and especially
     taking note of the fact that owing to the forfeiture of the right to file
     a written statement, the first respondent-builder did not make out
     any exceptional circumstance, the NCDRC was not justified in not
     following the formula followed in R.V. Prasannakumaar’s case
     (supra) in the matter of fixing the due date for possession for the
     purpose of computing compensation for the delay. In this context,
     it is also to be noted that in R.V. Prasannakumaar’s case (supra),
     the NCDRC found that payment in the shape of interest at the rate
     of 6% per annum on the deposit of home buyers from the due date
     of possession till the offer of possession is the adequate method
     to compensate the buyers for the delay. This court only found
     the course of action adopted by NCDRC as just and reasonable.
     In the case on hand, NCDRC rightly followed the same method
     adopted in R.V. Prasannakumaar’s case (supra) and the claimants
     are entitled to compensation in the shape of interest at 6% per
     annum from the due date of possession till the date on which the
     respective complainant-buyers are offered possession. In the said
     circumstances and in view of the decision in R.V. Prasannakumaar’s
838                                                        [2024] 7 S.C.R.

                      Digital Supreme Court Reports


       case (supra), on this issue, the only modification required is with
       respect to the method adopted for fixing the due date for possession,
       in the manner mentioned earlier. Though the complainants
       contended that they are entitled to be compensated in the manner
       provided under clause 6 of the agreement, in view of the decision
       in R.V. Prasannakumaar’s case (supra), we are of the view that
       compensation in the shape of interest at the rate of 6% per annum
       for the period mentioned earlier would be in tune with the formula
       followed in R.V. Prasannakumaar’s case (supra). This is because
       such a course was adopted in R.V. Prasannakumaar’s case (supra)
       despite the stipulation for payment of compensation at the rate of
       Rs.3/sq. ft. per month for delayed handing over of possession. It is
       to be noted that in the case on hand, the stipulation for payment
       of compensation for delayed handing over of possession is only at
       the rate of Rs.2/sq. ft. per month.
23. True that the complainants claimed for refund of charge for car parking
    fee charged, with interest. The same was declined by NCDRC by
    assigning the reason that the said question was decided in favour
    of the developer by NCDRC in CC/913/2016 viz., in RV Prassana
    Kumars 47 Ors. vs. Mantri Castles Pvt. Ltd. was confirmed by
    this Court in R.V. Prasannakumaar’s case (supra). In that view of
    the matter, we decline to interfere with the finding of NCDRC on
    the claim for refund of car parking charge.
24. Paragraph 9 of the impugned order would reveal that the prayer
    for refund of legal fee realised by the developer for execution of
    conveyance deed was declined by NCDRC on the ground that the
    complainants had not adduced any evidence based on which legal
    fee could be determined by it. We are not inclined to interfere with
    the said finding of NCDRC, as well. The same is the position with
    respect to the claim for refund of legal fee charge for conveyance on
    the ground that it was charged excessively. As relates the prayer to
    provide Green Jogging Track and Convenience Store as promised in
    the brochure, NCDRC has already issued directions for constructing
    them within the time stipulated thereunder.
25. In the circumstances, this appeal is allowed in part by modifying the
    formula formulated under paragraph 8 of the impugned judgment
    by NCDRC in the matter of payment of compensation for delay in
    handing over possession of flats and it is ordered that the liability
[2024] 7 S.C.R.                                                        839

                     Kaushik Narsinhbhai Patel & Ors. v.
                 M/s S.J.R. Prime Corporation Private Limited

     of the developer to pay interest at the rate of 6% per annum shall
     be from the due date for possession fixed as above viz., from
     September, 2014 till the date on which the respective complainant-
     buyers are offered possession.
26. Needless to say, that NCDRC in execution of impugned order as
    modified by this judgment, shall verify with reference to each flat
    purchaser the date on which offer of possession has been made to
    him/her and fix the liability on the builder in the manner mentioned
    above.
27. Pending application(s), if any, stands disposed of.

     Result of the case: Appeal Partly allowed.



     †
         Headnotes prepared by: Vidhi Thaker, Hony. Associate Editor
                                 (Verified by: Kanu Agrawal, Adv.)