Bombay High Court
M/S. Prathamesh Construction And Ors vs Captain (In) Bhupesh Aneja And Anr on 12 August, 2025
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2025:BHC-AS:34692
9. CIVIL WP-14043-24 & IA 13820-24.doc
Amberkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 14043 OF 2024
WITH
INTERIM APPLICATION NO. 13820 OF 2024
M/s. Prathamesh Construction & Ors. .. Petitioners
Versus
Captain (In) Bhupesh Aneja & Anr. .. Respondents
....................
Mr. Alankar Kirpekar a/w Mr. Susmit Phatale, Mr. Ayush Tiwari &
Mr. Somnath Kale i/by Mr. Susmit Phatale, Advocates for
Petitioners
Captain (In) Bhupes Aneja, Respondent No. 1 in Person
...................
CORAM : MILIND N. JADHAV, J.
DATE : AUGUST 12, 2025
P. C.:
1. Heard Mr. Kirpekar, learned Advocate for Petitioners and
Captain Bhupes Aneja, Respondent No. 1.
2. Petitioners are developers. They are challenging the order dated
27.06.2024 passed by National Consumer Disputes Redressal
Commission in First Appeal No. 370/2024 whereby the Complaint
filed by Respondents is partly allowed and direction given to the
Petitioners to jointly and severally directed to refund the amount of Rs.
10,34,000/- to the Complainants along with interest @ 9% from the
date of respective payments till realization within 60 days from the
date of receipt of the copy of the order. That apart Petitioners are also
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jointly and severally directed to pay Rs. 3,00,000/- towards
compensation for mental and physical harassment to the Complainants
and an amount of Rs. 75,000/- towards cost of litigation.
3. Briefly stated Respondents are investors with Petitioners. They
invested amount of Rs. 10,34,000/- sometime in the year 2013. It is
seen that since the Petitioners did not respondent to the investment
made by the Respondents for booking of the flat, Respondents filed
FIR dated 03.11.2016. Petitioners approached the Court seeking
anticipatory bail and by order dated 24.04.2017, Petitioners were
granted anticipatory bail on pre-condition that they shall deposit Rs.
10,34,000/- in this Court. On 02.05.2017 Petitioners deposited the
said amount of Rs. 10,34,000/- in this Court and anticipatory bail was
confirmed. In the criminal proceedings initiated by Respondents,
negotiations took place between the parties and Petitioners handed
over 6 cheques to the Respondents which were ultimately
dishonoured. Being aggrieved, Respondents thereafter in 2017 filed
Consumer Complaint No. CC/17/883 before the State Consumer
Disputes Redressal Commission Maharashtra, Mumbai. The Complaint
was resisted by Petitioners and by order dated 15.05.2023, State
Consumer Disputes Redressal Commission allowed the Complaint
party and directed payment of Rs. 10,34,000/- along with 12%
interest to the Respondents. Being dissatisfied with the said order,
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Petitioners filed First Appeal No. 370/2024 before the National
Consumer Disputes Redressal Commission which by order dated
27.06.2024 upheld the order passed by the State Consumer Disputes
Redressal Commission but reduced the interest rate from 12% to 9%.
Order dated 15.05.2023 passed by the State Consumer Disputes
Redressal Commission is appended at page Nos. 36-54, Exh. 'B' of
Petition whereas order dated 27.06.2024 passed by National
Consumer Disputes Redressal Commission is appended at page Nos.
33-35, Exh. 'A' of Petition.
4. In the meanwhile Respondents filed Execution proceedings
before the State Consumer Disputes Redressal Commission in respect
of the order dated 27.06.2024. In Execution Proceedings, order dated
21.08.2024 was passed directing the Petitioners to withdraw the
deposited amount of Rs. 10,34,000/- in this Court and deposit the
same in State Consumer Disputes Redressal Commission. Petitioners
therefore addressed letters to the Registry of this Court along with
copy of the said order. Registrar of this Court responded by directing
the Petitioners to obtain Court's order. In the meanwhile, non-bailable
warrant was also issued against the Petitioners but the same has been
stayed in the Interim Application filed by Petitioners in present
Petition.
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5. It is seen that National Consumer Disputes Redressal
Commission has by its order dated 27.06.2024 upheld the order dated
15.05.2023 and directed payment of Rs. 10,34,000/- along with
interest to be paid over to the Respondents by Registry of this Court.
There is further direction in the order that the differential amount be
paid within a period of further 4 weeks.
6. Mr. Kirpekar, learned Advocate for Petitioners would submit that
Petitioners are ready and willing to forgo the amount of Rs.
10,34,000/- which has been deposited in this Court along with all
accrued interest in favour of Respondents and abide by the orders
passed subject to this Court passing appropriate directions in the
present Petition. He would submit that appropriate directions can be
given by this Court to the Registry of this Court to transfer the amount
of Rs. 10,34,000/- along with all accrued interest directly to the
Respondents without routing it through the State Consumer Disputes
Redressal Commission where the Respondents have filed Execution
Proceedings against the Petitioners. The suggestion made by Mr.
Kirpekar prima facie appears to be fair to the Court.
7. Per contra, Captain Aneja - Respondent No. 1 has appeared in
person and persuaded the Court to hear his submissions. He would
submit that Respondent has suffered a lot at the hands of Petitioners.
He would submit that in that view of the matter, Petitioners should be
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given strict punishment so that they would not behave in same fashion
with another investors. He would submit that Respondents have
found hopes of realizing his dream house which he has booked but in
view of the demeanor and omissions of Petitioners, the said dream
was never fructified. He would submit that after realizing he had been
duped by the Petitioners, he was made to run from pillar to post to
secure a refund of the amounts, which were also not released by the
Petitioners. He would submit that he is a Serviceman employed in the
Indian Navy and he had suffered a lot for the past 12 years for getting
his money back. He would submit that Petitioners had committed
fraud and duped him by advertising that they were owners of Plot Nos.
189 and 190A at Sector 20, Ulwe which were were never owned by
them in the first place. He would submit that he was duped when he
had booked a 2 BHK flat of approximately 1100 sq.fts. on the 7th floor
of the building in 'Prathmesh Empire-1' on the basis of widely
advertised the project and brochure as 'clear title CIDCO transferable
CIDCO transfer plot'. He would submit Petitioners had advertised
their project on facebook page and through several real estate websites
and misled him through fraudulent representations which is clear from
the correspondence which is place don record in the Petition and
appended to various responses before the State Consumer Disputes
Redressal Commission and National Consumer Disputes Redressal
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Commission. He would submit that Petitioners have made false
submissions at different points in the proceedings before the State
Consumer Disputes Redressal Commission and National Consumer
Disputes Redressal Commission and in Anticipatory Bail Application
filed in this Court. He would submit that anticipatory bail granted by
this Court to Directors of Petitions is on the false premise and
submissions made by Petitioners that Respondents had agreed to shift
his booking to another project undertaken by Petitioners. He would
submit that in this regard, the Court should consider the order of
rejection of bail by Sessions Court which is the judgment dated
15.12.2016 wherein the Court has held that it is an admitted fact that
Petitioners were unable to sell the flat to Respondents as per the
original agreement and there was absence of clear title and possession
over the subject land in question by Petitioners. He would submit that
the Sessions Court had categorically held that Petitioners were
compelling the purchasers to purchase flats on a different location
instead the location agreed and therefore this very fact shows element
of cheating on the part of Petitioners. He would submit that
Petitioners have duped several investors like Respondents before the
Court and therefore no leniency whatsoever should be shown by Court
to Petitioners while allowing their Petition in challenging the order
passed by the National Consumer Disputes Redressal Commission
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dated 27.06.2024. He would submit that Petitioners have committed
unfair trade practice and deficiency in service. They have been
proceed in criminal matters which resulted in issuance of non-bailable
warrants against them. They are habitual offenders for similar
offences. They have made false representations to the Court. They
have given 6 post-dated cheques to Respondents which were
dishonoured. They had sent a scanned image of demand draft of Rs.
10,34,000/- for falsely stating that Respondents had agreed to accept
the same as part of settlement and therefore due to all these issues,
Respondents have been harassed mentally and physically He would
therefore submit that Respondent had shown his bonafides by paying
20% of the booking amount of Rs. 60.38 lakh for 2 BHK flat upfront
and had consistently shown his bonafides until he realized that he was
duped by Petitioners. He would submit that it is only when
Respondents visited the site to find out details of the plots, he realized
that there was an issue of title of the subject plot where he booked the
flat and thus Petitioners had duped the Respondents. He would
therefore persuade the Court to look into the harassment rather
mental and physical harassment meted out to Respondents in the
present case and determine the present Writ Petition.
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8. I have heard Mr. Kirpekar, learned Advocate for Petitioner and
Respondent No. 1 in person and with their able assistance perused the
record of the case.
9. It is seen that sometime in 2013, Respondents intended to
purchase a residential flat and it is an agreed position that he had paid
advance amount of Rs. 10,34,000/- to Petitioner No. 3. It is also
admitted position that Petitioner No. 1 had issued receipt in respect
thereof and there is no dispute in respect of the same. Rather Mr.
Kirpekar has fair to the Court in informing the Court that Rs.
10,34,000/- has been deposited in this Court at the time of grant of
anticipatory bail to directors of Petitioners and the said amount can be
allowed to be taken by Respondents along with all accrued interest
thereon. It is seen that the said amount of Rs. 10,34,000/- deposited
on 02.05.2017 and we are in 2025. In the past 8 years, substantial
interest may have accrued on the said amount also. Insofar as
considering the impugned order passed by the National Consumer
Disputes Redressal Commission is concerned, after perusing the said
order, it is seen that the said Commission has been waged on the basis
of the proposition that the amount which has been deposited as a
condition for grant of anticipatory bail cannot be considered as tender
of money by the Petitioners. Therefore the National Consumer
Disputes Redressal Commission has come to the conclusion that
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Petitioners cannot be absolved from the liability of interest in the case
of refund. In that view of the matter, the National Consumer Disputes
Redressal Commission has upheld the order passed by the State
Consumer Disputes Redressal Commission for refund of money along
with interest. However while doing so the National Consumer Disputes
Redressal Commission has modified the order to the extent that rate of
interest has been reduced from 12% to 9% per annum to be paid over
to the Respondents. I have perused the order dated 15.05.2023
passed by the State Consumer Disputes Redressal Commission. It is
seen that the State Consumer Disputes Redressal Commission has
passed a reasoned and cogent order after determining the points for
determination as to whether the Complainants Respondents were
consumers under the Consumer Protection Act, whether the
Complainants have booked a flat in the project flouted by Petitioners,
whether the Petitioners are guilty of deficiency in service and unfair
trade practice to which the State Consumer Disputes Redressal
Commission has returned affirmative findings along with cogent
reasons from paragraph No. 10 onwards. That apart on the issue of
the Complainants - Respondents being entitled to the reliefs, the State
Consumer Disputes Redressal Commission has granted various reliefs
in operative part of the order which are confirmed by the National
Consumer Disputes Redressal Commission save and except the issue of
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reduction of interest. On the issue of reduction of interest National
Consumer Disputes Redressal Commission has relied upon the decision
of the Supreme Court in the case of Experion Developers Pvt Ltd v.
Sushma Ashok Shiroor 1 quoted in paragraph No. 6 of the impugned
order in which it has been held that in case of refund 9% interest is
just compensation which amounts to restitutory and compensatory
both. In that view of the matter, rate of interest has been scaled down
from 12% to 9% in the present matter. On perusing the reasons given
in paragraph No. 6 of the impugned order, I am not in agreement with
the reasons given therein by the National Consumer Disputes
Redressal Commission. The reason for reduction of interest is without
any reason whatsoever. On the contrary, the decision of the State
Consumer Disputes Redressal Commission which has been upheld by
the National Consumer Disputes Redressal Commission is found to be
correct and cogent on all parameters. The hardship and harassment
which the Respondents have undergone in the present case is evident
from the aforesaid timeline. In that view of the matter, there was no
reason for the National Consumer Disputes Redressal Commission to
interfere with the order dated 15.05.2023 passed by the State
Consumer Disputes Redressal Commission which had given adequate
reasons for passing of the said order. In that view of the matter, order
dated 27.06.2024 passed by National Consumer Disputes Redressal
1 (2022) SCC OnLine SC 416
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Commission in First Appeal No. 370 of 2024 is quashed and set aside
and the order dated 15.05.2023 passed by State Consumer Disputes
Redressal Commission in Consumer Complaint No. 833 of 2017 is
upheld and confirmed in its entirety.
10. Respondents shall be entitled to withdraw the amount of Rs.
10,34,000/- along with accrued interest thereon from this Court to
which Petitioners shall give their no objection. Registry of this Court
shall permit the Respondents to withdraw the said amount on his
Application.
11. In view of the above, Registry of this Court is directed to
transfer the amounts to the Respondents along with all accrued
interest thereon within a period of two weeks from today positively.
Respondents shall provide all details of their bank account to the
Registry of this Court along with his Application and server copy of
this order. Under no circumstances, there shall be delay in transferring
the aforesaid amount. If any fixed deposit is to be broken, same shall
be done immediately for the above compliance.
12. Computation and calculation of rate of interest @ 12% per
annum shall be computed by the Petitioners and the differential
amount due and payable to the Respondents shall be paid over by the
Petitioners within a period of three weeks from the date of this order.
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Insofar as the amount of compensation and costs is concerned, the
same are upheld and the said amount shall be paid over to the
Respondents within a period of three weeks from today.
13. With the above direction, Writ Petition is disposed. In view of
disposal of the Writ Petition, Interim Application No. 13820/2024 is
also disposed.
14. As a consequence of this order, non-bailable warrant issued by
the State Consumer Disputes Redressal Commission vide order dated
04.10.2024 in Execution Application No. EA/23/179 stands cancelled.
Said Execution Application is also disposed.
15. Writ Petition is disposed in the above terms.
Amberkar [ MILIND N. JADHAV, J. ]
RAVINDRA MOHAN
MOHAN AMBERKAR
AMBERKAR Date:
2025.08.12
16:33:56 +0530
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