Chattisgarh High Court
Jagjeet Singh Makkad vs M/S Om Construction on 12 December, 2024
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2024:CGHC:49208
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MA No. 190 of 2023
Jagjeet Singh Makkad S/o Late Shri Dilip Singh Makkad, Aged About
76 Years R/o Takhatpur, District Bilaspur Chhattisgarh.
... Appellant
versus
M/s Om Construction Through Its Partner Raj Kumar Khilwani, Aged
About 53 Years, S/o Late Dr. A.P. Khilwani, Office Address 43, Zone II,
MP Nagar, Bhopal M. P. Site Address At Sapphire Greens, Vidhan
Sabha Road, Raipur Chhattisgarh.
... Respondent
For Appellant : Mr. Shikhar Bakhtiyar with Ms. Muskaan Fatwani, Advocates For Respondent : Mr. Atul Kumar Kesharwani, Advocate S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Judgment On Board 12.12.2024
1. This Miscellaneous Appeal is filed under Section 58 of the Chhattisgarh Real Estate (Regulation & Development) Act, 2016 (for short "Act of 2016") challenging the order dated 11.10.2023 passed by Chhattisgarh Real Estate Appellate Tribunal, Raipur Digitally signed by (hereinafter referred to as "the Tribunal") in Appeal No.173 of PRAVEEN KUMAR SINHA 2023 whereby the appeal preferred by the appellant was partly allowed and while modifying the order passed by Chhattisgarh -2- Real State Regulatory Authority (hereinafter referred to as "RERA") Raipur, appellant was directed to pay maintenance charges of Rs.58,500/- and GST of Rs.10,530/-.
2. Facts relevant for disposal of this appeal are that appellant purchased a TNC approved residential Plot No.288 developed by the respondent -company in the name and style as "Sapphire Greens" vide registered sale deed executed on 23 rd December 2010. After execution of sale deed, in front of Plot of appellant, respondent/promoter constructed a huge Iron Gate which is affixed from two permanent guard rooms from both the ends. The said Iron Gate affixed from two permanent guard rooms was never part of layout plan and it was constructed after execution of sale deed. The appellant on several occasions requested to respondent to remove the said construction through telephonic calls as also through letters followed by legal notice but request of the appellant was not paid any heed to. Since the appellant has been deprived of enjoying rights over the Plot as well as security, appellant stopped paying the maintenance charges from 2017 onwards.
3. The respondent/promoter filed a complaint case before RERA, Raipur claiming the maintenance amount from appellant from 2017. RERA, Raipur allowed the complaint of respondent vide order dated 13.01.2023 and appellant was directed to pay Rs.2,83,500/- along with GST of Rs.51,030/-. Being aggrieved by the impugned order dated 13.01.2023 passed by RERA, appellant preferred an appeal before the Tribunal which was partly allowed and the order dated 13.01.2023 passed by the -3- RERA, Raipur was modified, amount payable by the appellant was reduced to Rs.58,500/- with GST of Rs.10,530/-, which is under challenge in this appeal.
4. Learned counsel for appellant submits that the appellant, being owner of Plot No.288 in the residential colony developed by respondent- promoter, was continuously paying maintenance charges from the date of execution of sale deed till 2017. It is only when the respondent-promoter miserably failed to remove the gate-structure constructed in front of his Plot, he stopped making payment since he was deprived of the physical custody, control, and occupancy over the purchased Plot. He submits that Clause 11 and 12 of Agreement to Sale as well as Sale Deed complainant/respondent was only liable to maintain the society for a period of 5 years and thereby entitled for receiving the maintenance amount for initial 5 years commencing from the date on which the possession of the first plot in the project is handed over to any purchaser. Thereafter, the maintenance of the common areas/facilities after the period of 5 years shall be done by the occupants through their society/organization/external agency and the First Party (complainant/respondent) shall not be responsible for the maintenance after 5 years. Further the total project ought to have been handed over to some management service or any other agency for purpose of maintenance to that maintenance and all the allottee was then liable to pay the maintenance to that maintenance agency only. It is also contended that Section 19 (6) of the Act of 2016 provides that maintenance of society and maintenance amount paid by the -4- allottee will be subject to sale deed/agreement between the parties and according to Clause 11 of the Agreement dated 22.12.2010, complainant/promoter was liable to maintain the Society for initial 5 years and thereby entitled for maintenance amount only for 5 years, and not thereafter.
5. Learned counsel for the respondent-promoter vehemently opposes the submission of learned counsel for the appellant and would submit that undisputedly the appellant has purchased a residential Plot from respondent. He also entered into an Agreement to Sale and has paid amount of maintenance for some period and thereafter stopped paying on the ground as pleaded therein. He contended that with respect to installation of the Iron Gate, separate complaint was filed, which came to be dismissed and against the order of dismissal of complaint one another miscellaneous appeal is filed under the provision of the Act of 2016 which is pending. He contended that according to provision under Section 11 (4) (d) of the Act of 2016, it is the promoter who is responsible for providing and maintaining the essential services on reasonable charges till taking over of the maintenance of project by the association of allottees. He contended that project was not handed over to Society but it was handed over to Village Panchayat in the year 2020. He submits that the Tribunal had taken note of the said provision and referring to provision under Section 19 (6) and 19(7) of the Act of 2016 and further the Rule 17 of the Chhattisgarh Real State (Regulation and Development) Rules 2017 has re-calculated the amount due to the petitioner. Order passed by the Tribunal is in accordance with law upon -5- appreciation of the facts and evidence and it does not call for any interference.
6. I have heard learned counsel for the parties and also perused the documents annexed along with this appeal and the record of RERA.
7. Perusal of the documents enclosed along with miscellaneous appeal would show that the appellant filed copy of Agreement to Sale dated 22nd December 2010 between respondent as First Party and the appellant as Second Party. Clause 11 and 12 of the Agreement which are pressed into by learned counsel for the appellant is extracted for ready reference:-
"11. That with the clear intention to maintain the common areas/facilities in general, provided by the seller for a period of 5 years, it is mutually agreed that the Second Party will, in addition to the sale price mentioned in Clause 2 hereinabove, pay in advance, along with the 1st installment as mentioned in Clause 3(i) hereinabove, an amount @ Rs.20/- per square feet for the total area purchased by him/her, to the external maintenance agency/ First Party from the date of possession towards maintenance charges to maintain salaries of security guards, sweepers, lineman, Gardener (s), other related staff and common electricity/water bills, maintenance of development work viz. roads, sewerages, pipe lines etc., streetlight bills, common pump room bills, and day to day external cleanliness and upkeeps of the common areas, but it does not cover any major repairs/ renovation(s) Painting(s) etc., of common areas. These also -6- do not include the Annual property tax and annual diversion premium. The date of commencement of maintenance for the initial period of 5 years, shall be deemed to be the date on which, the possession of the first plot in the project is handed over to any purchaser, irrespective to the number & date of booking or the date of execution of agreement to sale of such Plot. The maintenance of the common areas/facilities after the period of 5 years shall be done by the occupants through their society/organization/external agency and the First Party shall not be responsible for the maintenance after 5 years.
12. That the First Party after having completed the total project would handover the maintenance of the colony to some Property Management Service or any other nominee/agency or society as may be appointed by the First Party, from time to time, for the maintenance and upkeep of the said project and the Second Party undertakes to pay maintenance bills as raised by the maintenance agency on pro-rata basis irrespective of the fact whether the Second Party is in the occupation of the Plot or not. In case of failure of the Second Party to pay the maintenance bills on or before the due date, the Second Party shall be liable for the payment of the maintenance bill with accrued interest within fifteen days, failing which the maintenance agency shall be at liberty to restrict the second party from water supply, maintenance services etc. till such amount is realized. The First Party would not be held -7- liable for maintenance after the expiry of the initial maintenance period of 5 years from the date of handing over of the possession of the first Plot, as mentioned in 10 above."
8. Clause 11 of the Agreement provides for duty of seller to maintain the common areas/facilities in general, provided by the seller for a period of 5 years and further it casts duty upon the Second Party i.e. purchaser/appellant to pay first installment as mentioned in Clause 3 (i) an amount @Rs.20/- per square feet for the total area purchased by him, to the external maintenance agency from the date of possession towards maintenance charges to maintain salaries of security guards, sweepers, lineman, Gardener, other related staff and common electricity/water bills, maintenance of development work viz. roads, sewerages, pipe lines etc., streetlight bills, common pump room bills, and day to day external cleanliness and upkeeps of the common areas. Clause 12 of the Agreement casts duty upon the First Party after having completed the total project would handover the maintenance of the colony to some Property Management Service or any other nominee/agency or society as may be appointed by the First Party from time to time, for the maintenance and upkeep of the said project. From the pleadings in the miscellaneous appeal, order passed by the RERA and the impugned order passed by the Tribunal, it is apparent that appellant has not deposited the amount towards maintenance from 01.09.2017. RERA in its order has calculated the amount of maintenance from 01.09.2017 to 31.12.2022 for a period of 63 -8- months to the tune of Rs.2,83,500/-, GST amount of Rs.51,030/- with interest @10.60 percent on the amount so calculated. The Real State Appellate Tribunal considering the provision under Section 11 (4) (d) , 19 (6), and 19 (7) of the Act of 2016 has re- calculated the dues towards maintenance charges up to the date of transfer/handing over the project to Panchayat i.e. 31.10.2020 and calculated amount due towards maintenance charges of Rs.58,500/- and GST Rs.10,530/- with interest @10.60 per cent. Handing over the project to Panchayat in the year 2020 is not disputed. Further, it is not the appeal filed by the respondent challenging the impugned order of the Tribunal reducing the amount of maintenance.
9. The appellant has filed this appeal mainly pressing upon Clause 11 of the Agreement to Sale which provides that the maintenance of the common area/ facilities in general by seller is for a period of 5 years only. Provision under the Act of 2016 in particular Section 11 talks of Function and Duties of Promoter. Under Section 11 (4) of the Act of 2016 duty of the promoter is specifically provided and Section 11 (4) (d) of the Act of 2016 talks of "be responsible for providing and maintaining the essential services on reasonable charges till the taking over the maintenance of project by the association of allottees".
10. From perusal of the aforementioned provisions it is apparent that it is the duty of Promoter of providing and maintaining essential services till taking over the maintenance of the project by the association of the allottees.
11. In the case at hand, as per the submission of learned counsel for -9- the respondent, according to Clause -12 of the Agreement to Sale, the project is handed over to the Panchayat in the year 2020. Clause 12 of the Agreement specifically provides that First Party after having completed total project would handover the maintenance of the colony to some Property Maintenance Service or any other nominee/agency or society as may be appointed by the First Party from time to time. It also provides that in case of failure of Second Party to pay maintenance bills on or before the due date, Second Party shall be liable for payment of maintenance bill with accrued interest.
12. Undisputedly, the First Party has provided basic amenities and maintained essential services till handing over the project to Village Panchayat.
13. The Tribunal has calculated the amount of maintenance payable by the appellant when admittedly as per submission of learned counsel for the appellant, the appellant had stopped payment of amount of maintenance since 2017 on the ground that some Iron Gate is installed in front of his Plot.
14. In the facts of the case, in the opinion of this Court, there is no illegality or infirmity in the order impugned passed by the Tribunal in Appeal No.173/2024 calling interference by this Court. Under the provision of Section 58 of the Act of 2016 an appeal to High Court may be filed on any one or more of the grounds specified in Section 100 of CPC. Section 100 of CPC provides that an appeal would lie if the High Court is satisfied that case involves substantial question of law.
15. Hon'ble Supreme Court in the case of C. Doddanarayana Reddy -10- (Dead) by L.Rs. and Ors. Vs. C. Jayarama Reddy (Dead) by L.Rs. and Ors. (2020) 4 SCC 659 has observed and concluded thus:-
"25. The question as to whether a substantial question of law arises, has been a subject-matter of interpretation by this Court. In the judgment in Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under: (SCC pp. 347-48, paras 12-15) "12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.
13. In Ramanuja Naidu v. Vs. Kanniah Naidu (1996) 3 SCC 392, this Court held : (SCC 393) 'It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of the Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did.'.
14. In Navaneethammal v. Arjuna Chetty (1996) 6 SCC 166, this Court held: (SCC p.
166) 'Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. ...
Even assuming that another view is possible on a reappreciation of the same evidence, -11- that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.'
15. And again in Taliparamba Education Society v. Moothedath c Mallisseri Illath M.N. (1997) 4 SCC 484, this Court held: (SCC p.
486, para 5) '5.... The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact, which is impermissible.' "
x x x
x x x
29. The learned High Court has not satisfied the tests laid down in the aforesaid judgments. Both the courts, the trial court and the learned first appellate court, have examined the school leaving certificate and returned a finding that the date of birth does not stand proved from such certificate. May be the High Court could have taken a different view acting as a trial court but once,two courts have returned a finding which is not based upon any misreading of material documents, nor is recorded against any provision of law, and neither can it be said that any Judge acting judicially and reasonably could not have reached such a finding, then, the High Court cannot be said to have erred. Resultantly, no substantial question of law arose for consideration before the High Court.
30. Thus, we find that the High Court erred in law in interfering with the finding of fact recorded by the trial court as affirmed by the first appellate court. The findings of fact cannot be interfered with in a second appeal unless, the findings are perverse. The High Court could not have interfered with the findings of fact."
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16 . The Hon'ble Supreme Court in the case of State of Rajasthan and Ors. Vs. Shiv Dayal and Ors. (2019) 8 SCC 637 has observed and concluded thus:-
"16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (See observation made by learned Judge, Vivian Bose, J., as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar Vs. Dashrath Narayan Chilwelkar 1942 SCC OnLine MP 26 : AIR 1943 Nag 117].
17. In our opinion, if any one or more ground, as mentioned above, is made out in an appropriate case on the basis of the pleading and evidence, such ground will constitute substantial question of law within the meaning of Section 100 of the Code."
17. Considering the entirety of the facts and circumstances of the case as also provision under Section 58 of the Act of 2016 read with Section 100 of CPC as also aforementioned decisions of Hon'ble Supreme Court, I do not find any substantial question of law involved in this appeal.
18. For the foregoing discussions, appeal being devoid of any substance is liable to be and is hereby dismissed at admission stage.
Sd/-
(Parth Prateem Sahu) Judge Praveen