For the Petitioner : Mr. Thomas Franklin Caesar, Advocate
For the Res.Nos.1&2: Mr. V. Shankar, Advocate
For the Res. No. 3 : NEMO
PRONOUNCED ON 25th July, 2014
O R D E R
PERJUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner against the order dated 29.04.2013 passed by the Tamil Nadu State Consumer Disputes RedressalCommission, Chennai (in short, ‘the State Commission’) in Appeal No. 1051 of 2011 – A. Antony Muthu Vs. M/s. Whirlpool of India Ltd. & Ors. by which, while dismissing appeal, order of District Forum dismissing complaint was upheld.
2. Brief facts of the case are that complainant/petitioner purchased Whirlpool refrigerator model No. 10865 Elite AS 220 liters, in code No. 081205, Serial No. INAO 84903830 for a sum of Rs.15,500/- on 17.7.2009 from OP No. 3/Respondent No. 3 manufactured by OP No. 1 & 2/Respondent No. 1 & 2. On the date of delivery itself, complainant suspected that an old fridge has been delivered, made complaint to OP No. 2 & 3. On his complaint, OP No. 2 visited his premises and subsequently service engineer also visited his premises and replied that date of manufacture could not be traced. Not mentioning date of manufacture on the refrigerator amounts to unfair trade practice. Inspite of repeated reminders, refrigerator was not replaced by new one. Alleging deficiency on the part of OPs, complainant filed complaint before District Forum. OP No. 1 & 2 contested complaint and submitted that delivered refrigerator was a new one and prayed for dismissal of complaint. OP No. 3 was proceeded ex-parte. Learned District forum after hearing both the parties dismissed complaint. Appeal filed by the petitioner was dismissed by learned State Commission against which, this revision petition has been filed.
3. None appeared for Respondent No. 3 even after service; hence, he was proceeded ex-parte.
4. Heard learned Counsel for the parties finally at admission stage and perused record.
5. Learned Counsel for the petitioner submitted that respondent agreed to replace new refrigerator before State Commission, which reveals that delivered refrigerator was old one. Refrigerator does not contain manufacturing date and year which amounts to unfair trade practice; even then, learned State Commission committed error in dismissing appeal; hence, revision petition be admitted. On the other hand, learned Counsel for the respondent submitted that respondent never offered to replace new refrigerator before State Commission and order passed by leaned State Commission is in accordance with law; hence, revision petition be dismissed.
6. Perusal of record reveals that there is no grievance of complainant regarding service of purchased refrigerator, but the only grievance is that refrigerator may be old as it does not contain year of manufacturing, which amounts to unfair trade practice. It is not disputed that carton in which refrigerator was delivered contains May, 2009 as month and year of manufacture. Merely because refrigerator itself does not contain month and year of manufacture, it cannot be inferred that delivered refrigerator was old and manufactured in the year 2006, which amounted to unfair trade practice. Learned Counsel for the petitioner could not place any document in support of his contention that refrigerator purchased by him was manufactured by respondent in the year 2006. Even if for the sake of arguments it is presumed that sold refrigerator was manufactured earlier to the year 2009, merely by selling that refrigerator in 2009, would not amount to unfair trade practice unless it is proved that refrigerator manufactured in year 2006 was sold in year 2009 revealing that it was manufacturing in year 2009. Learned Counsel for the petitioner could not place before us any rule making obligatory on the part of respondent to inscribe month and year of manufacture on the refrigerator.
7. Learned State Commission in the impugned order observed that Counsel for the respondent offered to replace the refrigerator, but Counsel for the appellant not only declined the offer, but demanded Rs.1,00,000/- in addition to replacement of refrigerator for withdrawal of complaint. Prima facie, we do not dispute this observation, but learned Counsel for the respondent submitted that offer for new refrigerator was never made before State Commission, but it was submitted that if there is any defect in the refrigerator, it can be rectified.
8. Learned State Commission held that refrigerator supplied was a new one and dismissed appeal. We do not find any illegality, irregularity or jurisdictional error in the impugned order and revision petition is liable to be dismissed at admission stage.
9. Consequently, revision petition filed by the petitioner is dismissed at admission stage with no order as to costs.
( K.S. CHAUDHARI, J)
( VINAYKUMAR )
NATIONAL CONSUMERDISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO.342 OF 2014
With I.A. No.3876 of 2014 (For Stay) I.A. No.3877 of 2014 (For Condonation of Delay)
(Against order dated 9.4.2014 in Complaint Case No.05 of 2014 of the State Consumer Disputes Redressal Commission, UT Chandigarh)
1. Emaar MGF Land Limited Through its Authorized Signatory ECE House, 28, Kasturba Gandhi Marg, New Delhi.
2. Emaar MGF Land Limited, Through its Authorised Signatory SCO 120-122, Sector-17-C, Chandigarh.
1. Karnail Singh, S/o Late Shri Inder Singh R/o House No.2857/1, Sector-49-D, Chandigarh
Appellants/Opposite parties being aggrieved by order dated 9.4.2014, passed by State Consumer Disputes Redressal Commission, UT Chandigarh (for short, ‘State Commission ‘) have filed the present appeal.
2. Brief facts are that, representative of the appellants induced the Respondents/Complainants to purchase a plot in its Project “Mohali Plots at Mohali Hills”, in Sector 104, Mohali, Punjab, who assured the respondents that development activity at the site was in full swing and if they booked the plot, the possession thereof complete in all respects would be handed over to them, within a period of 18 months, from the date of execution of the Plot Buyer’s Agreement. It was further assured by the representative, that Plot Buyer’s Agreement would be executed between the parties, within a few days. On such assurances, respondents applied to the appellants for allotment of a residential plot and paid a sum of Rs.5 lacs, as booking amount, vide cheque No.893241 dated 12.02.2011. The respondents were allotted plot measuring 250 square yards, in “Mohali Plots” at Mohali Hills @Rs.22,000/- per square yard. The basic price of the said plot was to the tune of Rs.55,00,000/-. Apart from this amount, respondents were to pay a sum of Rs. 6,87,500/-, towards Preferential Location Charges (PLC) plus additional charges. Thus, after discount of Rs.1,10,000/-, the total sale consideration, in the sum of Rs.65,30,250/-, was required to be paid by the respondents, towards the said plot.
3. Provisional Allotment letter Dt 25.02.2011, was issued in favour of respondent no.1. Further, amount of Rs.5,78,000/-,towards the part payment was deposited by the respondents, vide cheque No. 354672 dated 15.04.2011. Despite getting part payment till the month of May, 2011, the appellants failed to ensure the execution of the Plot Buyer’s Agreement. In the absence whereof, the Bank concerned refused to sanction the loan which was required by the respondents, to make payment of the remaining sale consideration. It was further stated that, on the other hand appellants, started levying interest, on delayed payments. Respondents vide email dated, 21.05.11, requested the appellants to ensure the execution of the Plot Buyer’s Agreement and also to waive off the interest. In turn, appellants sent an email dated 24.05.2011, wherein it was stated that the Plot Buyer’s Agreement shall be executed shortly At the same time, respondents were asked to make payment of installments of price due, towards the said plot.
4. It was further stated that by June, 2011, total amount of Rs.22,30,250/- had already been paid by the respondents to the appellants, but the Plot Buyer’s Agreement, was still not executed. Ultimately, appellants sent a copy of the Plot Buyer’s Agreement, in respect of the said plot, with a direction to return the same, after signing it, within 30 days. On going through the terms and conditions of the Plot Buyer’s Agreement, respondents were shocked to see that the same were favourable to the appellants Party only and their rights had been totally ignored. Thus, respondents had no option but to sign the said Agreement, so as to avoid cancellation of the plot and forfeiture of 15% of the total sale consideration. Accordingly, on 22.11.2011, respondents signed the Plot Buyer’s Agreement and sent the same to the appellants.
5. Thus, due to the delay aforesaid in execution of the Plot Buyer’s Agreement, respondents could not avail the housing loan, in time from the concerned Bank. As a result whereof, they could not pay the amount of 3rd,4th and 5th installments, which were due to be paid by them by August, 2011, November 2011 and February, 2012, respectively. Therefore, respondents sent an email dated 20.12.2011, explaining their inability to pay the aforesaid due installments in time and requested the appellants for extension of time, but they refused to do so. On the other hand, appellants served cancellation notice dated 24.02.2012. By month of March, 2012, respondents succeeded in availing of loan from the HDFC Bank and by 20.08.2012, paid the part sale consideration of the said plot, to the tune of Rs.62,60,750/- i.e. about 95% of the sale consideration. The remaining 5% of the sale consideration was required to be paid at the time of delivery of physical possession of the plot. 6. It was further stated, that as per Clause 8 of the Plot Buyer’s Agreement dated 22.11.2011, subject to force majeure conditions and reasons beyond the control of the Company, physical possession of the fully developed residential plot, was to be handed over to the respondents within a period of 12 months but not later than 18 months, from the date of execution of the agreement. It was further mentioned in the said agreement, that in case of delay in handing over possession of the fully developed plot within 18 months, the appellants are liable to pay compensation/penalty @Rs.50/-per square yard, per month for such period of delay from the date of execution thereof.
7. When physical possession of the plot in question complete in all respects, was not delivered to the respondents by the stipulated date i.e. 21.05.2013, they visited the site and found that there was no development in the area, in which the plot was allotted. The respondents made number of oral as well as written requests to the appellants,to deliver legal physical possession of the plot complete in all respects, but it failed to do so. On the other hand, appellants sent a vague letter dated 21.08.2013, stating therein that the compensation/penalty, would be adjusted against the remaining payment to be paid by them, at the time of registration of the plot.
8. It was further stated that since the appellants had not delivered the possession of the plot, the respondents were not able to construct house thereon and reside therein. As a result whereof, for the last three years they had been staying in a rented accommodation for which they paid monthly rent to the tune of Rs.14,520/- per month for the year 2012 and Rs.15,000/- per month, for the year 2013, thereby causing unnecessary financial burden. It was further stated that besides that, they underwent a lot of mental agony and physical harassment on account of non-delivery of physical possession of the plot.Further, respondents also suffered financial loss on account of non-payment of compensation, as per Clause 8 of the agreement, for the period of delay and by not refunding the amount deposited by them.
9. It was further stated that the aforesaid acts of the appellants amounted to deficiency in rendering service, as also indulgence into unfair trade practice.When the grievance of the respondents was not redressed, a complaint under Section 17 of the Consumer Protection Act, 1986 (for short, ‘Act’)was filed praying for the following directions;
“a. Refund the whole amount of Rs. 62,60,750/-(Rupees Sixty Two Lakh Sixty Thousand Seven Hundred Fifty only)paid by the complainants to OP along with interest @24% p.a. w.e.f. the date of the payments.
b. Pay damages Rs.15,00,000/-(Rupees Fifteen Lakh only) for the highly negligent, deficient service, illegal and unlawful acts and for the harassment,humiliation, stress strain and mental agony caused to the complainants.
c. Pay compensation on account of monthly rent of Rs.15,000/- paid by the complainants, alongwith interest@ 24% p.a. w.e.f. 25-Aug-2012 i.e. proposed date of possession.
d. Pay Rs.500/(Rupees Five Hundred only) per square yard per month on account of delay in giving the possession of the plot, calculated at the rate of 24% p.a.on the total payment received by OP till date.
e. Pay litigation charges Rs.33,000/- along with interest @ 24% p.a.”.
10. Appellants in their written statement admitted the provisional allotment of the plot and issuance of provisional allotment letter dated 25.02.2011, in favour of the respondents. Appellants also admitted that respondents had made payment of Rs.62,60,750/-, towards the part price of residential plot in question. Execution of the Plot Buyer’s Agreement dated 22.11.2011, between the parties was also admitted. It was also admitted that there was some delay on the part of the appellants in execution of the said Agreement. It was stated that, no doubt as per the Plot Buyer’s Agreement, subject to force majeure conditions and the reasons beyond the control of the appellants, physical possession of the fully developed residential plot was to be handed over to the complainants, within a period of 12 months but not later than 18 months from the date of execution thereof. However, it was also mentioned therein, that in case of delay, the appellants were liable to pay compensation/ penalty @Rs.50/- per square yard, per month for such period of delay. It was further stated that, since the parties were bound by the terms and conditions of the Plot Buyer’s Agreement, neither they could go beyond the same nor any relief contrary to the agreement could be granted to the respondents. It was further stated that respondents had made default in making payment of installments. Thus, interest on delayed payments which was due to be paid by the respondents were waived off.It was further stated that development activities, in the Sector in which the plot in question was allotted is in full swing and delivery of physical possession of plots is likely to be given in the near future, at the most by middle of the year 2014. It was further stated that neither there was any deficiency, in rendering service, on the part of the appellants nor it indulged into unfair trade practice.
11. The State Commission vide its impugned order, partly allowed the complaint and passed the following directions;
“(i) The Opposite Party is directed to refund the amount of Rs.62,60,750/-, to the complainants, alongwith interest @12% per annum, from the respective dates of deposits, within 45 days, from the date of receipt of a certified copy of this order.
(ii) The Opposite Party is further directed to pay compensation, in the sum of Rs.2,00,000/- (two lacs), for causing mental agony and physical harassment, to the complainants, as also escalation in prices of the real estate, within 45 days, from the date of receipt of a certified copy of this order.
(iii) The Opposite Party is further directed to pay cost of litigation, to the tune of Rs.20,000/-, to the complainants.
(iv) In case the payment of amounts, mentioned in Clauses (i) and (ii)is not made, within the stipulated period, then the Opposite Party shall be liable to pay the amount mentioned in Clause (i) with interest @15 % P.A.,instead of 12% P.A.,from the respective dates of deposits, till realization, and interest @12% P.A.on the amount of compensation, mentioned in Clause(ii),from the date of filing the complaint, till realization, besides payment of litigation costs, to the tune of Rs.20,000/-.”
12.Being aggrieved, appellants have filed this appeal. Alongwith it, an application seeking condonation of delay of 20 days has also been filed.
13. I have heard the learned counsel for the appellants and gone through the record.
14.Since, there is delay of 20 days only, for the reasons mentioned in the application, the same is condoned
15. It has been contended by the learned counsel for the appellants that Plot Buyer’s Agreement dated 22.11.2011, determines the rights and liabilities of the parties and forms a binding and enforceable contract between them. As per the agreement, there is no provision for refund of the sale consideration, but the same has been wrongly granted by the State Commission. Further, the State Commission has not taken into consideration the provisions of Section 74 of the Contract Act, 1872. As per this Section, where a contract is broken and the amount has been mentioned in the contract, only that amount is to be paid in case of breach.
16. It is further contended that as per Clause 8 of the Buyer’s Agreement, it is specifically mentioned that in case of delay in delivery of the physical possession of the plot, the appellants are only liable to make payment of penalty in the sum of Rs.50/- per square yard, per month for such period for delay, beyond 18 months from the date of execution of the agreement. Since, remedy of breach is specially provided in the Buyer Agreement itself, the State Commission should have awarded compensation, as per the Buyer’s Agreement. However, Commission could not have ordered for the refund of the sale consideration. Thus, the impugned order is liable to be set aside.
17.The State Commission, while allowing the complaint in the impugned order has observed;
“18 The next question, that falls for consideration, is, as to within which period, delivery of possession of the residential plot, was to be given, to the complainants. Annexure C-9 is the Plot Buyer`s Agreement dated 22.11.2011. According to Clause 8 of this Agreement, subject to force majeure conditions, and the reasons beyond the control of the Company, the Opposite Party was liable to deliver possession of the plot, within a period of 12 months, but not later than 18 months, from the date of execution of the same (Agreement).It is, thus, evident from the aforesaid Clause that the Opposite Party was required to deliver legal physical possession of the residential plot, in question, in favour of the complainants, within a maximum period of 18 months, from the date of execution of the Plot Buyer’s Agreement dated 22.11.11,Annexure-C-9 i.e. by 21.05.2013. Admittedly, a sum of Rs. 62,60,750/-, i.e. more than 95%, towards the part price of plot, has already been paid by the complainants, by the stipulated date/ time. Since, there was no development at the site, the Opposite Party was unable to handover the legal physical possession of the plot, in question, to the complainant, by 21.05.2013. It was frankly admitted by the Opposite Party, that the development, in the area, where the plot was allotted, in favour of the complainants, was in full swing, and delivery of physical possession thereof, was expected to be given, in the middle of year 2014. The Opposite Party, thus, misled the complainants that they would be given the legal physical possession of the plot, in question, within 18 months, from the date of execution of the Plot Buyer`s Agreement, but it failed to abide by its promise and, thus, deprived the innocent consumers, of their hard earned money. By not delivering the legal physical possession of the fully developed residential plot, to the complainants, by 21.05.2013, i.e. by the stipulated date, even after receipt of more than 95% of the price thereof, the Opposite Party was not only deficient, in rendering service, but also indulged into unfair trade practice.
19. The next question, that falls for consideration, is, as to whether, the complainants are entitled to the refund of amount, deposited by them, in the circumstances, referred to above. The Opposite Party, failed to deliver the legal physical possession of the plot, in question, allotted in favour of the complainants, by the stipulated date. It, therefore, had no right, to retain the hard earned money of the complainants, in the sum of Rs.62,60,750/-,deposited by them, towards the part price of plot, in question, without rendering them, any service. Since, the plot, in question, had not been developed, even by the time, the complaint was filed, no alternative was left with the complainants, than to ask for the refund of amount, deposited by them. Even till date, the Opposite Party is unable to hand over the legal physical possession of the plot, in question. In our considered opinion, the complainants are entitled to the refund of amount of Rs.62,60,750/-, deposited by them. By not refunding the amount, deposited by the complainants, with interest, the Opposite Party was deficient, in rendering service.
20. The next question, that falls for consideration, is, as to whether, the complainants are entitled to interest, on the amount deposited by them, if so, at what rate. The amount of Rs.62,60,750/-,towards more than 95% of the price of plot, in question, was deposited by the complainants, which fact is not disputed. The complainants were deprived of their hard earned money, on the basis of misleading information, given by the Opposite Party, that they would be handed over the legal physical possession of the residential plot, in question, by 21.05.2013, but it failed to do so. The complainants were, thus, caused financial loss. The hard earned money of the complainants was utilized by the Opposite Party, for a sufficient longer period. Had this amount been deposited by the complainants, in some bank, or had they invested the same, in some business, they would have earned handsome returns thereon. In case of delay, in deposit of installment(s), the Opposite Party was charging compound interest (quarterly) @24% P.A., as is evident from Clause 3 of the Plot Buyer`s Agreement dated 22.11.2011, Annexure-C-9. Under these circumstances, in our considered opinion, if interest @ 12% P.A., on the amount deposited by the complainants, from the respective dates of deposits, is granted, that will serve the ends of justice.
21. It was submitted by the Counsel for the Opposite Party, that since the parties are governed, by the terms and conditions of the Plot Buyer`s Agreement dated 22.11.2011,Annexure C-9, as per Clause 8 of the same (Plot Buyer’s Agreement), in case of delay, in the delivery of physical possession of residential plot, it (Opposite Party), was only liable to make payment of penalty, in the sum of Rs.50/- (Rupees Fifty only) per sq.yd, per month, for such period of delay, beyond 18 months, from the date of execution of the same. He further submitted that the Opposite Party was ready to pay this amount, for the period of delay, in delivery of possession of the residential plot. It may be stated here, that such a submission of the Counsel for the Opposite Party, would have been considered to be correct, had the complainants, prayed for the delivery of physical possession of the residential plot. In the instant case, as stated above, prayer for the refund of amount, was made by the complainants, in the complaint, as there was no progress, in development of the area, where the plot, in question, was allotted to them. This Clause could be invoked, by the Opposite Party, only, in the event, the complainants, in the complaint, had sought the relief of delivery of physical possession of the residential plot. As stated above, the hard earned money of the complainants was used by the Opposite Party, for investment, for a long time. They were neither given the physical possession of residential plot, nor refund of the amount. If the Opposite Party is allowed to invoke Clause 8 of the Agreement, in the instant case, that would amount to enriching it, at the cost of the complainants. Under these circumstances, shelter cannot be taken by the Opposite Party, under Clause 8 of the Plot Buyer`s Agreement dated 22.11.2011, Annexure C-9. Had the complainants prayed for possession of the residential plot, in question, in the complaint, the matter would have been different. The complainants, in our considered opinion, as stated above, are entitled to the refund of amount of Rs.62,60,750/-, alongwith interest @ 12% P.A.,from the respective dates of deposits.
22. The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, for mental agony and physical harassment. As stated above, the hard earned money of the complainants was used by the Opposite Party, for a long time, without either delivering the physical possession of residential plot or refunding the same (amount). The complainants purchased the residential plot, by depositing a huge amount, with the Opposite Party, in the hope of raising construction thereon, to have a shelter. Their hopes were, however, dashed to the ground, when there was no development of the residential plot, nor the question of delivery of possession thereof, arose.The complainants shall also not be able to purchase the plot, like the one, in question, at the same rate, at which it was allotted to them, due to escalation in prices. The complainants, thus, underwent a tremendous mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Party. In this view of the matter, the complainants, in our considered opinion, are entitled to compensation,for mental agony and physical harassment caused to them, at the hands of the Opposite Party, as also escalation in prices of the real estate, to the tune of Rs.2,00,000/-(two lacs), which could be said to be adequate and reasonable”.
18.It is an admitted fact that respondents had paid a sum of Rs.5,00,000/- as booking amount in respect of plot in question on 16.2.2011. Thereafter, vide letter dated 25.2.2011, appellants made a further demand of Rs.5,78,000/- in respect of provisional allotment of the plot in question, which was paid by the respondents.
19. On 21.5.2011, respondents had sent e-mail to the appellants requesting for execution of “Plot Buyer’s Agreement”. The appellants, vide their e-mail dated 24.5.2011 responded and stated that;
“Payment towards the property are not linked to the Buyer’s Agreement and are required to made in accordance with the agreed payment schedule”.
20. However, the appellants, mischievously and cleverly had not given any date of handing over of the possession of the plot to the respondents at the time of taking booking amount as well as at the time of issuance of the provisional allotment.
21. It is an admitted fact that possession of the plot in question, had not been handed over to the respondents, either within the period of 12 months or 18 months from the date of execution of the ‘Buyer’s Agreement’. Further, appellants in their written statement have not given any explanation with regard to not handing over the possession of the plot to the respondents when admittedly appellants had already received more than 95% of the cost of the plot long ago. In this regard it would be relevant to quote the defence of the appellants as per their written statement filed before the State Commission in year 2014;
“Para 19.The company is expediting the completion of amenities in the area so that possession can be offered at the earliest. In fact, most of the development work is already completed and it is expected to offer possession for the said unit by the middle of this year. In case of any delays, there are sufficient safeguards which have been built in the buyer’s agreement to protect the interest of the complainants. The Company is committed towards developing the township and possession is being offered to customers on completion of laying of amenities mentioned in the buyer’s agreement. In fact, the company has already offered possession to several units across sectors and work is being expedited in Sector 104, where the customer’s unit is located to handover possession at the earliest.The averments of complainants as to payment of compensation for delay are wrong and denied and compensation has to be made as per the terms and conditions of buyer agreement and have signed the same and now they cannot say that opposite parties are indulging in unfair trade practices.”
22. Thus, as on date the appellants themselves are not sure as to by which date they will be able to hand over the possession of the plot to the respondents. The appellants after grabbing 95% of cost of plot are sitting over it, whereas respondents are running from pillar to post to get their hard earned money back.
23.This act of the appellants inasking the respondents to pay a sum of Rs.5 lakh as booking amount and Rs.5.78 lakh as part payment towards the provisional allotment in the year 2011, without giving them any firm date of handing over of the possession of the plot is a “Deceptive Practice” which falls within the meaning of “unfair trade practice” as defined under the Consumer Protection Act, 1986. The appellants should have given firm date of handing over the possession at the time of taking the booking amount itself. By not indicating the true picture with regard to their project to the respondents, the appellants induced them to part with their hard earned money, which also amounts to unfair trade practice.
24.Moreover, the appellants by not delivering the legal physical possession of the fully developed plot to the respondents till date, even after having received more than 95% of the price thereof, are not only deficient in rendering service but are also guilty of indulging into unfair trade practice. Under these circumstances, Clause 8 of the ‘Plot Buyer’s Agreement’ which was executed only after taking substantial sum of Rs.10,78,000/-, at the time of booking as well as at the time of issuance of provisional allotment letter, is of no help to the appellants.
25. Appellants/Builders in the present case “wants to have the cake and eat it too”, as admittedly it had received more than 95% of the amount of the plot. Thus appellants being the builder, are enjoying the possession of the plot as well as substantial amount of consideration paid by the respondents. On the other hand, respondents after having paid substantial amount of consideration of the plot, are still empty handed.
26. Such type of unscrupulous act on the part of appellants/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 plot, on one pretext or the other.Appellants wants the respondents to run from one fora to other, so that appellants can go on enjoying respondents’ money without any hindrance.
27.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, go on filing meritless appeal in different foras. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree must be dealt with heavy hands. Unscrupulous builders like appellants who after taking almost entire cost of the plot, do not perform their part of obligation, should not be spared. A strong message is required to be sent to such type of builders that this Commission is not helpless in such type of matters.
28. Now question arises for consideration is as to what should be the quantum of costs which should be imposed upon the petitioners for dragging the respondent upto this fora when petitioners had no case at all. 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.
29. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, the 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.”
30. Further, the 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 also 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”.
The court further held;
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.”
Lastly, the Apex Court observed;
54. While imposing the costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.
55. The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellant in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts the appellants have also wasted judicial time of the various courts for the last 40 years. 56. On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well-reasoned impugned order/ judgment. These appeals are consequently dismissed with costs, which we quantify as Rs.2,00,000/-. We are imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation”.
32.Thus, present appeal is nothing but gross abuse of process of law and same is required to be dismissed with punitive damages. Accordingly, present appeal stand dismissed with punitive damages of Rs.5,00,000/-(Rupees Five lakhs only. Out of this amount, a sum of Rs.2.50,000/-(Rupees Two Lacs Fifty Thousand only)shall be paid to both the respondents in equal share.
33. Appellants are directed to deposit a sum of Rs.2,50,000/-(Rupees Two Lacs Fifty Thousand only) by way of demand draft in the name of ‘Consumer Leal Aid Account’ of this Commission within four weeks from today and balance amount of Rs.2,50,000/-(Rupees Two Lacs Fifty Thousand only) be deposited in equal share in the name of both the respondents by way of demand draft with this Commission from today.
34.Punitivedamages awarded in favour of the respondents no.1 and 2 shall be paid to them only after expiry of period of appeal or revision preferred, if any.
35. In case, appellants fail to deposit the aforesaid amount within the prescribed period, then they shall also be liable to pay interest @ 9% p.a. till realization.
36. Pending application stand disposed of.
37. List for compliance on 29th August, 2014.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2859 OF 2014
(From the order dated 24.01.2014 in S.C. Case No. FA/673/12 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata)
Medico Distributor Represented by Mr. Sukhdev Mustafi, Proprietor s/o Late Bhujanga Bhusan Mustafi 109, Swinhoe Lane, Kolkata – 700042.
1. Regional Manager CRO-II, National Insurance Co. Ltd. 8, Indian Exchange Place, Kolkata – 700001