Indu Gupta v. Ansal Properties And Infrastructure Ltd. .

1. This appeal has been preferred by Smt. Indu Gupta (hereinafter referred to as ‘the appellant’) against the order dated 05.10.2019 passed by the Real Estate Regulatory Authority, Lucknow (hereinafter referred to as ‘the Regulatory Authority’) whereby the Regulatory Authority has directed M/S Ansal Properties & Infrastructure Limited (hereinafter referred to as ‘the Promoter’) to ensure possession of alternative Unit No. B2/1004 (1006 sq.ft.) to the appellant by 31.12.2023 after obtaining Occupation and Completion Certificates and to pay interest for the delayed period at the rate of MCLR+1% p.a. with effect from 09.01.2011 till the date of actual possession. The amount of interest will be adjusted in the final payment. If the amount of interest exceeds the amount of balance the excess amount of interest will be refunded to the appellant. If the Promoter fails to comply with the said order then the entire amount paid by the appellant to the Promoter will be refunded with interest at the rate of MCLR+1% which will be deposited in the account of the appellant through RTGS. It was further directed that if the appellant has taken loan from the Bank then the loan amount with interest will be refunded to the Bank first and the remaining amount will be paid to the appellant. The matter of claim of compensation of Rs. 500,000/- and the cost of the litigation Rs. 1,00,000/- was referred to the Adjudicating Officer.

2. The facts of the case, in brief, are that the appellant/allottee booked a flat bearing Unit No. 3003-0-A5/GF/08, having an area of 895 sq.ft. in the Promoter's Project ‘Astha Apartments’ of Sushant Golf City, Lucknow in April, 2009. As per terms and conditions of the Allotment Agreement the total cost of the said Unit was Rs. 11,52,312.50p. The payment plan was construction linked plan and payments were to be made as per progress of construction and demand notices by the Promoter. The appellant/allottee has paid Rs. 3,45,778/- till date as part payment for consideration amount of the aforesaid Unit. The Promoter did not raise any demand thereafter because the construction of the booked Unit/Tower was not started. The Promoter promised to deliver possession of the Unit to the appellant/allottee within a period of 36 months, but the Promoter has not completed construction of the Unit in question till date. Therefore, the appellant/allottee filed Complaint No. 10201822907 (Indu Gupta v. Ansal Properties and Infrastructure Ltd.) against the Promoter before the Regulatory Authority.

3. Before the Regulatory Authority the appellant/allottee prayed for delivery of possession of the aforesaid Unit and compensation for the delay in delivery of possession.

4. The Promoter filed objection against the complaint of the appellant/allottee in which it offered refund of deposited amount with simple interest as per RERA Notification, which was not accepted by the appellant/allottee. The Promoter also informed that the construction of the booked Unit had not yet started, therefore, the Regulatory Authority directed the Promoter to offer any alternative Unit. The Promoter offered Unit No. B2/1004 (1006 sq. ft.) in another Project named ‘Bliss Delight’ which was accepted by the appellant/allottee before the Regulatory Authority.

5. The Regulatory Authority directed the Promoter to deliver possession of the aforesaid proposed Unit to the appellant/allottee till 31.12.2023 and to pay delay period interest from 09.01.2011 till the date of delivery of possession. The Regulatory Authority further directed the Promoter to return the whole consideration amount to the appellant/allottee along with interest at the rate of MCLR+1% if the Promoter fails to deliver possession of the aforesaid proposed Unit till 31.12.2023.

6. In the present appeal the appellant/allottee has sought the following reliefs:—

“(a) The Hon'ble Appellate Tribunal may be pleased to set aside the impugned order dated 05.10.2019, which was uploaded on 10.10.2019, passed by the Authority in Complaint No. 10201822907 Indu Gupta v. Ansal Properties Infrastructure Ltd.

(b) The Hon'ble Appellate Tribunal may be pleased to direct respondent to deliver possession of the Flat to appellant which has been offered to appellant by respondent.

(c) The Hon'ble Appellate Tribunal may be pleased to direct respondent to pay interest to the appellant over the consideration amount till the date of delivery of possession for delay.

(d) The Hon'ble Appellate Tribunal may be pleased to direct respondent to pay compensation to the appellant for the mental agony and financial loss suffered by her due to default of respondent.

(e) The Hon'ble Appellate Tribunal may be pleased to award the cost of this appeal to the appellant.”

7. Though the appellant/allottee has not mentioned the grounds of challenge to the impugned order of the Regulatory Authority, but from a reading of the facts mentioned in the memo of appeal, it appears that the appellant/allottee wants to challenge the impugned order on the following grounds:—

(i) The Regulatory Authority neither considered the provisions of the Act, 2016 nor considered the prayer and submission of the appellant and arbitrarily decided the complaint of the appellant/allottee.

(ii) The appellant/allottee only prayed for delivery of possession and compensation for delay and she has not prayed for refund of money. The Regulatory Authority traveled beyond pleadings while passing the second direction in the impugned order dated 05.10.2019. The Regulatory Authority has provided an escape route to the Promoter to get rid of its obligations just by returning the money after almost more than 14 years from the date of payment of money.

(iii) There has been a tremendous increment in land prices and construction cost during the past 14 years which cannot be compensated with MCLR+1% p.a. interest and the appellant/allottee will never be able to buy a similar unit henceforth.

(iv) It is a settled legal position that the decision making authority, performing quasi-judicial function, cannot travel beyond pleadings, but in the present case the Regulatory Authority passed such order which was not even prayed by the appellant/allottee in her complaint.

(v) The Regulatory Authority relied on para 257 of the decision of Hon'ble Bombay High Court in the case of Neelkamal Realtors Suburban Pvt. Ltd. v. Union of India and wrongly interpreted the aforesaid decision because the Hon'ble Bombay High Court held that the Promoter is liable to return money to the allottee when the allottee wishes to withdraw from the Project.

(vi) The 2 alternate direction issued by the Regulatory Authority in its impugned order dated 05.10.2019 is the violation of the provision of Section 18 of the Act, 2016.

(vii) The Regulatory Authority passed the impugned order dated 05.10.2019 arbitrarily and illegally without considering appellant's prayer and material on record. The impugned order has been passed without considering the provisions of the Act, 2016 and the settled legal position, in spite of the fact that the respondent has not filed any reply against the appellant's complaint.

(viii) The appellant/allottee is not willing to take refund of the aforesaid flat from the Promoter after more than 14 years since the date of payment of money. The appellant wants to take possession of the flat booked and the respondent is liable to deliver possession of the flat allotted to the appellant/allottee with same quality and facilities which were promised by the Promoter in the allotment agreement.

8. In objections to the grounds of appeal the Promoter has submitted that the appellant has filed the appeal with altogether wrong allegations and suppressing the correct facts with ulterior motive of harassing the Promoter; the Regulatory Authority vide impugned order directed the Promoter to give possession of the alternative Unit to the appellant/allottee upto 2023 along with delay interest from 2011 to 2023; the complaint filed by the appellant/allottee before the Regulatory Authority was not maintainable as the appellant/allottee has violated Rule 34(1) of the Uttar Pradesh Real Estate (Regulation and Development) Rules, 2016; the Regulatory Authority is appointed by the State Government under Section 20 of the Act, 2016 and the Adjudicating Officer is appointed by the Regulatory Authority in consultation with the State Government under Section 71 of the Act, 2016; Section 2(a) read with Sections 71 and 31 provides that any aggrieved person can file complaint with the Adjudicating Officer under Sections 12,14,18,19 seeking compensation under the Act, 2016 and Rules thereof shall be filed on Form N of the Rules; complaint seeking compensation under Sections 12,14,18,19 is to be filed before the Adjudicating Officer. It is further submitted that the said township consists of several acres of land in which the Promoter had to face certain hardships and difficulties on account of economic slowdown; the impugned order is against the provisions of the Statute as the Regulatory Authority has imposed interest on the Promoter at the prescribed rate from 2011 and not from 2016, when the Act, 2016 was enacted; the new Unit offered to the appellant/allottee has an additional area of 111 sq.ft. and the cost of the new Unit is Rs. 30,18,000/- while the appellant/allottee has to pay only Rs. 11,18,750/—; under Section 18 of the Act, 2016 there is no provision to impose interest when an alternative Unit is offered.

9. Shri Mandeep Singh, learned counsel for the appellant moved an application on 01.12.2020 with a specific prayer that the appellant is only aggrieved from second direction of RERA dated 05.12.2019 and the appellant confines her prays for setting aside of second direction passed by the RERA regarding return of whole consideration amount of the appellant along with MCLR+1% interest if respondent fails to deliver the possession of the premises as she never prayed for refund.

10. Heard Sri Mandeep Singh, learned counsel for the appellant/allottee and Sri Manoj Kumar, Advocate, holding brief of Sri Anurag Singh, learned counsel for the respondent/Promoter and perused the record.

11. In order to examine the issue involved in the present appeal, we deem it proper to frame following question:—

(i) Whether the relief granted by the Regulatory Authority is beyond the pleadings and prayer?

12. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the Court for its consideration. Further when the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the Court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue.

13. Similarly, when there is no prayer for a particular relief and no pleadings to support such a relief, and when defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief.

14. The principle was reiterated by Hon'ble Supreme Court in Ram Sarup Gupta (dead) by LRs. v. Bishun Narain Inter College, (1987) 2 SCC 555 : (1987) 2 SCR 805 as under:

“……It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise……”

15. The issue was again examined by the Hon'ble Supreme Court in the case of Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi; (2010) 1 SCC 234 and the Hon'ble Supreme Court in paras 29 and 30 of the judgment was pleased to examine and observed that “normally the Court will grant only those reliefs specifically prayed for by the petitioner”. The relevant paras 29 and 30 are quoted as under:

“29. The approach of the High Court in granting relief not prayed for cannot be approved by this court. Every petition under Article 226 of the Constitution must contain a relief clause. Whenever the petitioner is entitled to or is claiming more than one relief, he must pray for all the reliefs. Under the provisions of the Code of Civil Procedure, 1908, if the plaintiff omits, except with the leave of the court, to sue for any particular relief which he is entitled to get, he will not afterwards be allowed to sue in respect of the portion so omitted or relinquished.

30. Though the provisions of the Code are not made applicable to the proceedings under Article 226 of the Constitution, the general principles made in the Civil Procedure Code will apply even to writ petitions. It is, therefore, incumbent on the petitioner to claim all reliefs he seeks from the court. Normally, the court will grant only those reliefs specifically prayed for by the petitioner. Though the court has very wide discretion in granting relief, the court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner.”

16. The Hon'ble Supreme Court in the case of Bachhaj Nahar v. Nilima Mandal; reported in (2008) 17 SCC 491, pleased to observe that a Court cannot make out a case not pleaded. The Court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint.

17. We examined the complaint of the appellant before the RERA (Annexure No. 4 of the Appeal at page 71-72). The perusal of the same reveals that the appellant sought relief from the RERA against the Promoter/respondent for possession with compensation for delayed period and litigation cost, but the RERA while deciding the complaint of the appellant vide direction no. (kha), directed for refund of the amount along with interest @ MCLR+1%, if respondent fails to give possession of the alternative unit no. B2/1004 (1006 sq. ft) along with OC/CC by 31.12.2023.

18. Section 18 of the Act of 2016 deals with the return of amount and compensation. Section 18 of the Act of 2016 reads as under:—

18. Return of amount and compensation.— (1) If the promoter fails to complete or is unable to give possession of an apartment, plot or building,—

(a) in accordance with the terms of the agreement for sale or, as the case may be, duly completed by the date specified therein; or

(b) due to discontinuance of his business as a developer on account of suspension or revocation of the registration under this Act or for any other reason,

he shall be liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that apartment, plot, building, as the case may be, with interest at such rate as may be prescribed in this behalf including compensation in the manner as provided under this Act:

Provided that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing over of the possession, at such rate as may be prescribed.

(2) The promoter shall compensate the allottees in case of any loss caused to him due to defective title of the land, on which the project is being developed or has been developed, in the manner as provided under this Act, and the claim for compensation under this subsection shall not be barred by limitation provided under any law for the time being in force.

(3) If the promoter fails to discharge any other obligations imposed on him under this Act or the rules or regulations made thereunder or in accordance with the terms and conditions of the agreement for sale, he shall be liable to pay such compensation to the allottees, in the manner as provided under this Act.

19. Recently the Hon'ble Supreme Court in Civil Appeal No. 3581-3590 of 2020 Imperia Structures Ltd. v. Anil Patni decided on 02.11.2020, while examining the provisions of Section 18 of the Act, 2016, vide para 23, has been pleased to observe as under:—

“23. In terms of Section 18 of the RERA Act, if a promoter fails to complete or is unable to give possession of an apartment duly completed by the date specified in the agreement, the Promoter would be liable, on demand, to return the amount received by him in respect of that apartment if the allottee wishes to withdraw from the Project. Such right of an allottee is specifically made “without prejudice to any other remedy available to him”. The right so given to the allottee is unqualified and if availed, the money deposited by the allottee has to be refunded with interest at such rate as may be prescribed. The proviso to Section 18(1) contemplates a situation where the allottee does not intend to withdraw from the Project. In that case he is entitled to and must be paid interest for every month of delay till the handing over of the possession. It is upto the allottee to proceed either under Section 18(1) or under proviso to Section 18(1). The case of Himanshu Giri came under the latter category. The RERA Act thus definitely provides a remedy to an allottee who wishes to withdraw from the Project or claim return on his investment.”

20. The proviso to Section 18(1) gives liberty to an allottee to continue with the Project even if promoter fails to complete or is unable to give possession of the apartment, plot, flat or building in accordance with the terms of the agreement, duly completed by the date specified therein and in such eventuality the allottee is entitled for interest for every month of delay till handing over the possession at such rate as may be prescribed. The appellant complained before the RERA specifically for possession and compensation for delayed period and litigation cost and since there was no prayer of the appellant for refund of the amount, therefore, the direction no. (kha) in the impugned order dated 05.10.2019 is beyond the pleading and prayer of the appellant/complainant in the complaint. The question is answered accordingly.

21. In view of the aforesaid analysis and after appreciating the submissions of learned counsel for the parties as well as examining the record of the proceedings, we come to the conclusion that direction no. (kha) of the impugned order is without pleading and prayer of the appellant/complainant and, therefore, the prayer of the appellant for setting aside of the said direction deserves to be allowed. Thus, the direction no. (kha) of the impugned order dated 05.10.2019 is hereby set aside.

The appeal is allowed.