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Shivalik Vihar Sites Pvt. Ltd. & Ors vs. Gurcharan Singh dated 2012-07-09

 

        NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION  
                                        NEW DELHI
 
 
( 1 )          REVISION PETITION NO.  1413  OF 2012.
 
 
 (Against the order dated  2.4.2012 in   First Appeal  No. 24  of  2012 of the State Consumer Disputes Redressal  Commission, UT, Chandigarh)
 
 
1.                Shivalik Vihar Sites Pvt. Ltd. through Director/ Promoter Shri Anil Kumar, SCO 16-17, 2nd Floor, Sector-34-A, Chandigarh.
 
2.                Shivalik Apartments, Shivalik Vihar Sites Pvt. Ltd. through its Director Shri Anil Kumar, site Address; Shivalik Apartments Opposite Kharar Courts, Kharar, Distt. Rupnagar ( Punjab).
 
3.                Shri Anil Kumar son of Sh. DP. Singh, resident address;
             House  No. 4153, Sector-68, Mohali ( SAS Nagar) Distt.
    Mohali.                                                       
      .……Petitioners.
                                          Versus
Gurcharan Singh son of Late Niranjan Singh Aged about 65 years, resident of House No. 822, Top Floor, Phase 10, Mohali (SAS Nagar)
 
                                                                                  ……. Respondent
 
 
 
 
 
                                                            AND
 
(  2 )     REVISION PETITION NO.  1414  OF 2012.
 
 (Against the order dated  02.04.2012 in   First Appeal  No. 25  of  2012 of the State Consumer Disputes Redressal  Commission, UT, Chandigarh)
 
 
 
1.    Shivalik Vihar Sites Pvt. Ltd. through Director/ Promoter Shri Anil Kumar, SCO 16-17, 2nd Floor, Sector-34-A, Chandigarh.
 
2.    Shivalik Apartments, Shivalik Vihar Sites Pvt. Ltd. through its Director Shri Anil Kumar, site Address; Shivalik Apartments Opposite Kharar Courts, Kharar, Distt. Rupnagar ( Punjab).
 
3.    Shri Anil Kumar son of Sh. DP. Singh, resident address;
             House  No. 4153, Sector-68, Mohali ( SAS Nagar) Distt.
    Mohali.                                                       
      .……Petitioners.
                                          Versus
 
 Darshan Singh son of Late Santa Singh Aged about 65 years, resident of House No. 2070/2, Sector-47-C, Chandiagh.
                                                                                  ……. Respondent
 
 
 
 
BEFORE:
 
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
       
For the Petitioner (s)   :    Mr. Deepak Aggarwal,  Advocates.
 
For the Respondent(s)                   :   Lt. Col. Krishan Pratap Singh, Advocate.
 
Pronounced on: 9th July,  2012.
 
                                       ORDER
 
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
 
        Present Revision Petitions are being disposed by this common order, since facts in  these petitions are similar  and common question of law is involved.
       Vide two separate orders dated 2.4.2012, State Consumer Disputes Redressal Commission, Chandigarh (short as ‘State Commission’ ) disposed of two appeals filed under Section 27-A of the Consumer Protection Act, 1986 (short as ‘Act’ ) by the petitioners, against order dated 11.1.2012, passed by District Consumer Disputes Redressal Forum-I, Chandigarh (short as ‘District Forum’).  
 2.      Brief facts are that Consumer Complaints were filed by  respondents/complainants on the grounds that petitioners/OPs launched a scheme for selling their apartments, under the name and style of “Shivalik Apartments”. On being convinced by the OP No. 6(in the original Consumer Complaint) respondents deposited a sum of Rs. 9,78,129/- for allotment of a flat. As per Clause 4 of the allotment letter dated 7.1.2006,  petitioners were to hand over the possession on or before 7.2.2007 but they failed to do so. Later on, respondents came to know that petitioners were not having the permission from Punjab Govt. for building residential apartments. Respondents approached petitioners a number of times but they flatly refused, either to hand over possession of the flat or refund the amount. The aforesaid acts of the petitioners amount to deficiency in rendering service and indulgence into unfair trade practice.
3.        Petitioners in their written statement admitted that till date, possession of flats has not been handed over to the respondents. Petitioners tried to take shelter under “Force Majeure” clause stating that they are unable to hand over the possession as the construction has been stopped. Since,  recession has ceased, now the construction is in full swing and they will hand over the possession within ten months from the date of decision of present complaints.
4.      District Forum, vide its order dated 28.7.2010, allowed the complainants and passed the following directions ;  
 
     (a)      “ The OPs shall hand over the possession of the flat in question to the complainant within a period of 10 months from the date of filing of the present complaint i.e. by 18.09.2010 along with litigation costs of Rs. 5,500/-.
OR
  (b)        The OPs shall refund the deposited amount of Rs. 9,78,129/- along with Rs. 5,500/- as costs of litigation within thirty days from the date of receipt of copy of the order.
 (c )            The OPs shall pay within thirty days from the receipt of copy of the order interest as  damages @ 9 % per annum on the amount of Rs. 9,78,129/- w.e.f. the date of deposit till the possession is delivered or the amount of Rs. 9,78,129/- is refunded to the complainant.
                    In case the OPs fails to comply with the directions (a) or (b), they shall be liable to refund the entire amount with penal interest @ 12% per annum from the date of deposit  i.e.22.11.2005 till payment is actually made to the complainant. In case direction (c) is not complied within thirty days, the OPs shall be liable to pay the same with penal interest @ 12% per annum w.e.f. the date the monthly payments became due till the date of actual payment to the complainant ”.   
5.          Aggrieved by above order of the District Forum, Petitioners filed appeals before the State Commission, which dismissed the same with costs, vide its order dated 21.7.2011.
6.          Since, orders passed by the Foras below were not complied by the petitioners, execution applications under Section 27-A of the Act, were filed by the respondents which were allowed by the District Forum, vide its order dated 11.1.2012.  
7.   Aggrieved by this order of the District Forum, petitioners filed  appeals under Section 27-A of the Act, before the State Commission which dismissed the same, vide its impugned order. 
8.      We have heard the learned counsel for the parties and have gone through the record. 
9.    Impugned orders have been passed in execution proceedings. As per Section 27 of the Act, only appeal lies against any order passed in the execution proceedings. However, petitioners have filed revision petitions against the impugned orders, which on the face of it are not maintainable.  
10.          Section 27A of the Act reads as under;
       “ Appeal against order passed under section 27.
 
(1)    Notwithstanding anything contained in the Code of        Criminal Procedure 1973(2 of 1974), an appeal under section 27, both on facts and on law, shall lie from---  
 
(a)              the order made by the District Forum to the 
State Commission 
 
(b)              the order made by the State Commission to the National Commission; and
 
( c ) the order made by the National Commission to the Supreme Court .
 
          (2)    Except as aforesaid, no appeal shall lie to any court   from any order of a District Forum or a State Commission or the National Commission.
(3) Every appeal under this section shall be preferred within a period of thirty days from the date of an order of a District Forum or a State Commission or, as the case may be, the National Commission:  
        Provided that the State Commission or the National Commission or the Supreme Court, as the case may be, may entertain an appeal after the expiry of the said period of thirty days, if, it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days.)”.
11.      Since, specific remedy by way of  an appeal under Section 27-A of the Act has been provided, present revision petitions under Section 21-B of the Act, are not maintainable 
12.    Thus, on this short ground alone, these revision petitions are not maintainable.
13.    Now, coming to the merits, the State Commission in its impugned order has observed ;
“ It was next submitted by the Counsel for the appellants, that the appellants are ready to refund the amount as ordered by the District Forum, and upheld by the State Commission, but the complainant has already filed a Civil Suit in the Court of Civil Judge at Kharar, in which status quo regarding alienation of the flat, in question, has been order to be maintained. It was further submitted that after the sale of this flat, the appellants would be able to refund the amount deposited by the complainant, with a view to comply with the order passed by the District Forum, and upheld by this Commission. The Executing Court/Tribunal was to execute the order passed by the District Forum and upheld by this Commission. The order was passed, by the District Forum, in Consumer Complaint No. 1500/2009 on 28.07.2010. First Appeal against that order was dismissed by this Commission vide order dated 21.7.2011. The hard earned money, deposited by the complainant, is being continuously used by the Opposite Parties(now appellants) since the date of deposit of the same. Now the appellants cannot take up the plea, that they being in financial constraints, are unable to refund the same. Once they accepted the deposit from the complainant, for the allotment of a flat, but they failed to deliver possession thereof, by the stipulated date, they are bound to comply with the order passed by the District Forum, which was upheld by this Commission, in the First Appeal. Whatever remedy the Opposite Parties(now appellants) have in the Civil Suit, they can resort to the same, but it has no effect, whatsoever, so far as the order impugned is concerned. In this view of the matter, the submission of the Counsel for the appellants, being devoid of merit, must fail, and the same is accordingly rejected”.
14.           Admittedly,  possession of the flats in question have not been handed over to the respondents, till date. The same were to be handed over by 7.2.2007. Thus, petitioners/builders in the present case “ wants to have the cake and eat it too” as they received the entire consideration amount long ago and are also having the flats with them.
15.     On the other hand, respondents after having paid the entire consideration amount many years ago are still without any roof. Under these circumstances, petitioners cannot deprive the respondents of their legal rights to have the possession of the flats in question. Thus, there is no illegality or infirmity in the impugned order passed by the State Commission.
16.    Such type of unscrupulous act on the part of petitioners/builders should be dealt with heavy hands, who after grabbing the money from the purchasers enjoy and utilize their money but does not hand over the flat, on one pretext or the other.  Petitioners have made the respondents run from one Fora to other Fora during last three  years so that respondents cannot have any roof over his head and they (petitioners) can go on enjoying respondents money, without any hindrance.
17.    In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed ;
“Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them.  These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing law’s delay and bringing bad name to the judicial system.”
 
18.    It is well settled that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, goes on filing meritless petitions in different foras.  Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite party the fruits of the decree, must be dealt with heavy hands. Unscrupulous builders like petitioners should not be spared who after taking entire costs of the flats do not perform their part of obligations.  A strong message is required to be sent  to such type of builders that this Commission is not helpless in these type of matters.
19.   Now question which arises for consideration is as to what should be the quantum of costs which should be imposed upon the petitioners for dragging the respondents upto this fora.  It is not that every order passed by the judicial fora is to be challenged by the litigants even if the same are based on sound reasonings.
20.    Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors., Civil Appeal Nos.4912-4913 of 2011 decided on July 4, 2011 has observed ;
                  
“45.   We are clearly of the view that unless we ensure that wrong –doers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations.  In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation.  It is a matter of common experience that court’s otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases.
46.   Usually the court should be cautious and extremely careful while granting ex-parte ad interim injunctions.  The better course for the court is to give a short notice and in some cases even dasti notice, hear both the parties and then pass suitable biparte orders.  Experience reveals that ex-parte interim injunction orders in some cases can create havoc and getting them vacated or modified in our existing judicial system is a nightmare.  Therefore, as a rule, the court should grant interim injunction or stay order only after hearing the defendants or the respondents and in case the court has to grant ex-parte injunction in exceptional cases then while granting injunction it must record in the order that if the suit is eventually dismissed, the plaintiff or the petitioner will have to pay full restitution, actual or realistic costs and mesne profits.
47.   If an ex-parte injunction order is granted, then in that case an endeavour should be made to dispose of the application for injunction as expeditiously as may be possible, preferably as soon as the defendant appears in the court.
48.  It is also a matter of common experience that once an ad interim injunction is granted, the plaintiff or the petitioner would make all efforts to ensure that injunction continues indefinitely.   The other appropriate order can be to limit the life of the ex-parte injunction or stay order for a week or so because in such cases the usual tendency of unnecessarily prolonging the matters by the plaintiffs or the petitioners after obtaining ex-parte injunction orders or stay orders may not find encouragement.  We have to dispel the common  impression that a party by obtaining an injunction based on even false averments and forged documents will tire out the true owner and ultimately the true owner will have to give up to the wrongdoer his legitimate profit.  It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have heardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs.  In Swaran Singh Vs. State of Punjab (2000) 5 SCC 668 this court was constrained to observe that perjury has become a way of life in our courts.
49.  It is a typical example how a litigation proceeds and continues and in the end there is a profit for the wrongdoers.
50. Learned Amicus articulated common man’s general impression about litigation in following words :
 
“Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly.  The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road.”
 
21.    In our opinion, present Revision Petitions are nothing but gross abuse of law and same are meritless and frivolous, which are required to be dismissed with punitive costs of Rs. 50,000/- (Rupees  Fifty Thousand Only)each.
22.          Accordingly, we dismiss these petitions with punitive costs of Rs. 50,000/- (Rupees Fifty Thousand only) each.
23.  Out of total costs imposed upon the petitioners, Rs. 30,000/-  (Rupees Thirteen Thousand Only) each be paid to the respondents, by way of demand draft drawn in their respective names. Remaining Costs of Rs. 40,000/-( Rupees Forty Thousand only) be deposited by way of demand draft in the name of “Consumer Legal Aid” account, within four weeks from today.
24.    In case, petitioners fail to deposit the aforesaid costs, within the prescribed period, then they shall also be liable to pay interest @ 9% p.a., till realization. Costs awarded to the respondents, be paid only after expiry of period of appeal or revision, preferred, if any.
25.          Pending application stands disposed of.
26.    List on  31.8.2012 for compliance.
                                                                    …………………..……….J
     (V.B. GUPTA)
          (PRESIDING MEMBER)
 
…………………..………..
     (VINAY KUMAR)
      (MEMBER)
                                                                
SSB
 
 

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