State Consumer Disputes Redressal Commission
1. Harpreet Singh Giani, vs 1. Chandigarh Administration on 21 May, 2012
STATE CONSUMER
DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Execution
Application No. 16 of 1999 in
Complaint case
No. 42 o f 1998
Date of Decision
:
21/05/2012
Harpreet
Singh Giani, S/o Sh. Harinder Singh Giani, Advocate
Harinder
Singh Giani, Advocate
Mrs.
Preet Harinder Singh, W/o Sh. Harinder Singh Giani
Miss
Gurminder D/o Shri Harinder Singh Giani
H.S.
Giani (HUF) through Harinder Singh Giani, Advocate
All
residents of House No.3306, Sector 19D, Chandigarh.
Applicants/Decree
Holders/complainants
V e r s u s
1.
Chandigarh Administration through the Administrator, Deluxe
Building, Sector 9, Chandigarh,
2.
The Estate Officer, Chandigarh
Administration, Sector 17, Chandigarh.
.... Non-applicants/Judgment Debtors/Opposite Parties
BEFORE: JUSTICE SHAM SUNDER (Retd.),
PRESIDENT.
MRS. NEENA SANDHU, MEMBER
Argued by: Sh.
D.B. Singh, Advocate of the Decree Holders.
Sh. K.K. Gupta, Advocate for the Judgment Debtors.
JUSTICE SHAM SUNDER (Retd.), PRESIDENT.
1. This is an execution application, for execution of the order dated 28.05.1999, passed in Consumer Complaint No.42 of 1998, titled as Harpreet Singh Giani and others Vs. Chandigarh Administration and another.
2. The facts, in brief are that Harinder Singh Giani (now deceased) and others, filed a Consumer Complaint No.42 of 1998, under Section 17 of the Consumer Protection Act, 1986, titled as Harinder Singh Giani and others Vs. Chandigarh Administration and another, on the averments, that the Opposite Parties/Judgment Debtors, had advertised, in the Daily Tribune for auction of commercial sites on 29.03.1993, in Chandigarh, on lease hold basis. Site No.227 situated in Sector 40-D, was also put on auction, by the Opposite Parties. The complainants/Decree Holders, also participated in the said auction, in relation to the site bearing SCO No.227, Sector 40, Chandigarh. The complainants, being the highest bidders, the aforesaid site was auctioned in their favour for Rs.13,40,000/-. However, later on, it transpired, that the said site had already been sold to someone else. When this fact was brought to the notice of the Opposite Parties/Judgment Debtors, an alternative site bearing SCO No.225, Sector 40D, Chandigarh, instead of Site No.227, Sector 40D Chandigarh, was allotted to the complainants/Decree Holders, vide allotment letter dated 28.02.1994, after, a period of one year. There were no basic amenities like light, road, water drainage etc., in relation to the alternative site, allotted to the complainants/Decree Holders. For non-provisions of the facilities/ basic amenities, a Writ Petition was filed before the Hon`ble High Court, which was partly allowed. Since, there was deficiency, in service, on the part of the Opposite Parties, the complaint aforesaid, was filed before the State Consumer Disputes Redressal Commission, U.T., Chandigarh
3. Some other complaints were also filed by other complainants, involving the same questions of law and fact. All these complaints were clubbed and decided by this Commission, vide order dated 28.05.1999, the operative part whereof reads as under:-
After considering all the facts and the present law referred to above, we hold that complaint No.13 of 1998 and other connected complaints enumerated above succeed. We hereby hold that the date of auction for the purpose of payment of price shall be deemed to be date on which plinth level and all the basic amenities demanded in the complaint are actually provided. The amount deposited by the complainants shall earn interest @18% p.a. till providing the essential requirements, referred to above. We hereby order that let an Officer of the rank of Chief Engineer of Union Territory Chandigarh or a person next below him certify that the plinth level as well as other basic requirements/amenities are provided. The date of such certificate shall be considered to be the date of auction. It is further ordered that interest on the outstanding amount shall be payable from the date of aforesaid certificate, is issued. The installments shall be rescheduled accordingly in each case and the remaining price of the plots shall be deposited after rescheduling the installments without any change, in the price offered at the fall of hammer. We further order that the lease money shall be payable, from the date of certificate mentioned above. The respondents are also ordered to pay costs Rs.3,000/-, in each of the above mentioned complaints.
As regard complaint No.42 of 1998 Harpreet Singh Vs. Chandigarh Administration, there is another important feature. The possession of Plot No.227 Sector 40 D, originally auctioned could not be delivered to the complainant because it was already auctioned to some other person. Subsequently an alternative plot was allotted to the aforesaid petitioner on 28.02.94. In this case besides the relief given here by this Commission to other complainants, referred to above, the complainants in this case are also held entitled to interest @10% per annum on the sum of Rs.3,35,000/- from date of deposit till they were provided alternative plots failing this payment within a period of two months, the complainants in this case shall be entitled to interest @18% per annum from the date of institution of complaint till realization.
4.
Against the order dated 28.05.1999, passed by this Commission, First Appeal No.375 of 1999, was filed before the National Consumer Disputes Redressal Commission, New Delhi, by Harpreet Singh Giani, one of the complainants, for enhancement of interest. That appeal was dismissed by the National Consumer Disputes Redressal Commission, New Delhi, vide order dated 17.07.2006.
5. The Opposite Parties also filed an appeal, against this order, as is evident from the record, which was dismissed by the National Consumer Disputes Redressal Commission, New Delhi.
6. Since, the order was not complied with, an execution application was filed, wherein the order dated 11.05.2009, was passed by this Commission, the operative part whereof reads as under:-
Thus, we are clear in our minds that both reliefs had been granted to the complainants i.e. for non-provision of plinth level and basic amenities as well as for delay in handing over possession of alternative plot and since the amount of one relief has been paid so far, the decree in our considered view is yet to be fully satisfied. Accordingly we direct Judgment debtors to comply with the order of State Commission dated 28.05.99 in its letter and spirit and pay the balance amount to the decree holders as per relief granted in the said order with regard to non-provision of plinth level and basic amenities calculated upto the period of 19.09.2005, within a period of two months from the receipt of copy of the order.
Copies of this order be communicated to the parties, free of charge.
7. Against the order dated 11.05.2009, Revision Petition No.3501 of 2009, was filed by the Opposite Parties, which was dismissed by the National Consumer Disputes Redressal Commission, New Delhi, vide order dated 01.10.2009.
8. Still, the execution application filed by the Decree Holders/Complainants, was not fully complied with, and in Miscellaneous Application No. 122 of 1999, filed in Execution application No.16 of 1999, order dated 25.02.2010, was passed by this Commission, the operative part whereof reads as under:-
From the above discussion, we are clear in our minds that the decree has not been fully satisfied and the Judgment Debtor is unnecessarily trying to delay the execution. Consequently, the application is allowed and the Judgment Debtor is directed to execute the decree in full by payment of interest @18% per annum on the deposited amount till 19.09.2005 as already been directed vide order dated 11.05.2009 confirmed by the Hon`ble National Commission vide its order dated 1.10.2009. The Judgment Debtor is directed to make due payment on or before 25.03.2010 failing which action under Section 27 of Consumer Protection Act will be initiated against the Judgment Debtor. Let the execution application No.16 of 1999 be now for listed for 25.03.2010 for full execution of the decree.
Copies of this order be sent to the parties free of charge.
9. Feeling dissatisfied, the Opposite Parties/Judgment debtors filed Revision Petition No.1338 of 2010, against the said order, which was dismissed by the National Consumer Disputes Redressal Commission, New Delhi, vide order dated 09.12.2011.
10. Still feeling dissatisfied, the Opposite Parties, filed a Special Leave Petition, before the Hon`ble Supreme Court, which was dismissed vide order dated 03.02.2012.
11. Since, the order dated 28.05.1999, passed in the complaint had not still been fully satisfied, the Decree Holders were directed to file a fresh calculation sheet, vide order dated 13.03.2012. Accordingly, a fresh calculation sheet, was filed by the Decree Holders, according to which, they claimed that they were entitled to a sum of Rs.34,83,413/- i.e. Rs.30,33,413/- (being interest @18% p.a. from the respective dates of deposits till 19.09.2005 plus Rs.4,50,000/- illegally recovered as lease money/ground rent by the Judgment debtors on 07.09.2005), out of which Rs.16,47,860/-, had already been deposited with the District Forum on 18.05.2010 and, thus, the balance amount of Rs.18,35,553/- was still to be deposited by the Judgment Debtors.
12. Reply and counter calculation sheet, were filed by the Judgment debtors, wherein the calculation sheet submitted by the Decree Holders was almost admitted, as correct, but it was denied that they were liable to pay any amount. On the other hand, counter-claim of Rs.10,00,000/- was raised by the Judgment debtors.
13. We have heard the Counsel for the parties, and, have gone through the record of the case, carefully.
14. The Counsel for the Decree Holders, submitted that the State Consumer Disputes Redressal Commission, vide order dated 28.05.1999, granted the first relief of interest @18% P.A., on the amount already deposited by the Decree Holders for non provision of basic amenities. He further submitted that, ultimately, vide order dated 11.05.2009 passed by this Commission, date 19.09.2005, was fixed, as the date of auction, i.e. the date on which, the basic facilities/amenities were provided to the Decree Holders. He further submitted that, as such, according to the orders dated 11.05.2009, and 25.02.2010 passed by this Commission, the Judgment Debtors were liable to pay interest @18% p.a., on the amount already deposited by the Decree Holders, upto 19.09.2005. He further submitted that the second relief, which was granted to the complainants/Decree Holders, exclusively, vide order dated 28.05.1999, by the State Consumer Disputes Redressal Commission, was with regard to the payment of 18% interest on the amount of Rs.3,35,000/-, which was deposited by the complainants/Decree Holders, in respect of SCO No.227, Sector 40D, Chandigarh, which was found to have already been allotted to somebody else, until the provisions of an alternative plot. He further submitted that a sum of Rs.4,50,000/-, was got deposited from the complainants/Decree Holders, on 07.09.2005, under coercion, by way of ground rent, which as per the original order, in the complaint, passed by the State Consumer Disputes Redressal Commission, could not be claimed by the Judgment Debtors. He further submitted that so far as the additional relief , which was granted to the Decree Holders, for payment of interest @18%, by the Judgment Debtors, on the amount of Rs.3,35,000/-, was concerned, the same stood satisfied. He further submitted that a sum of Rs.16,47,860/-, had already been deposited by the Judgment Debtors with the District Forum. He further submitted the complainants/Decree Holders, were still entitled to a sum of Rs.18,35,553/-, which amount included a sum of Rs.4,50,000/-, referred to above. He further submitted that the Opposite Parties/Judgment Debtors, were delaying the execution of order unnecessarily.
15. On the other hand, the Counsel for the Judgment Debtors/Opposite Parties, submitted that, no doubt, two reliefs were granted to the complainants/Decree Holders, in Complaint Case No.42 of 1998. He further submitted that the first relief, in all the clubbed complaint cases, which was granted was that 18% interest p.a., shall be paid on the amount deposited, by the complainants, until the date of provision of basic amenities. He further submitted that these amenities had already been provided to the complainants/Decree Holders, on 20.09.1998, even before the filing of the complaint, by the Judgment Debtors. He further submitted that this Commission, vide order dated 11.05.2009, was wrong, in coming to the conclusion, that the date of auction would be deemed to be 19.09.2005, on the ground, that the basic amenities were provided on that date. He further submitted that the complainants/Decree Holders, themselves, admitted that the basic amenities were provided, prior to the filing of the original complaint. He further submitted that, as such, nothing was due, to the Decree Holders, against the Judgments Debtors, so far as, the first relief was concerned. He further submitted that the second relief, regarding the grant of interest @18% interest P.A., on the amount of Rs.3,35,000/-, already stood satisfied, by the Judgment Debtors. He further submitted that, no doubt, the Executing Court, cannot go behind the Decree, but with a view to ascertain the terms of the Decree, it could certainly go through all the proceedings and documents produced, which culminated into the passing of final order. He further submitted that since the second relief of interest on Rs.3,35,000/-, stood satisfied, the Decree Holders could not claim interest, on the same amount again, in respect of the first relief. He further submitted that even the complainants/Decree Holders have already sold SCO No.225, Sector 40D. He further submitted that the complainants/Decree Holders, earned rentals, on the property, and they were liable to pay the amount of Rs.10 lacs, in respect of three storeyed building from 25.09.1999 to 19.09.2005, alongwith interest @18% p.a. to the Judgment Debtors. He further submitted that the amount of Rs.4,50,000/-, was paid by the Decree Holders, as ground rent, which was due against them and, as such, they cannot claim refund thereof.
16. Undisputedly, interest @18% p.a. on amount of Rs.3,35,000/-, relating to the second relief, granted to the complainants/Decree Holders by the State Consumer Disputes Redressal Commission, vide order dated 28.05.1999, has already been paid by the Judgment Debtors, to them. The second relief, therefore, granted to the Decree Holders only, vide order dated 28.05.1999, by this Commission, stood satisfied.
17. The first relief, was also granted vide order dated 28.05.1999, to the Decree Holders/complainants, and other complainants. This relief, was in addition to the second relief, which was granted to the Decree Holders/complainants exclusively. This Commission, in clear-cut terms, held vide order dated 28.05.1999, that the date of auction, shall be deemed to be the date on which the plinth level and all the basic amenities/requirements, were actually provided. It was further held by this Commission, that the amount deposited by the complainants/Decree Holders, shall earn interest @18% p.a., till the provision of essential requirements/facilities referred to above. It was also directed that a person of the rank of the Chief Engineer or the person next below him, shall certify that the plinth level, as well as other basic requirements/amenities, referred to above, were provided and the date of such certificate, shall be considered as the date of auction. It was further directed that interest on the outstanding amount, shall be payable, from the date of issuance of the aforesaid certificate. It was further ordered that the installments shall be rescheduled. This relief, granted to the complainants/Decree Holders, did not have any concern with the second relief, which was separately granted to them. As stated above, vide a detailed order dated 11.05.2009, it was, in clear-cut terms, held by this Commission, that 19.09.2005, would be considered, as the date, on which the basic facilities/amenities, were provided to the complainants/Decree Holders, and that date would be deemed to be the date of auction. It was, upto this date, that interest @18% p.a., was to be paid to the Decree Holders/complainants, by the Judgment Debtors on the amount already deposited by them. The submission of the Counsel for the Judgment Debtors, to the effect that since already interest @18% p.a., on the amount of Rs.3,35,000/-, in relation to the second relief, had been paid by the Judgment Debtors, to the Decree Holders, they were not liable to pay interest on this amount, in relation to the first relief, therefore, does not merit acceptance, as decision on this point, has already attained finality, vide order dated 11.05.2009, against which even the Revision Petition was dismissed on 01.10.2009. This issue, therefore, cannot be allowed to be re-opened. Even the submission of the Counsel for the Judgment Debtors, that the basic amenities/facilities, had already been provided to the complainants/Decree Holders, even before the filing of the original complaint, also cannot be taken to be correct, at this stage. Such an argument, was also earlier raised by the Counsel for the Judgment Debtors, before this Commission, when ultimately, the order dated 11.05.2009, was passed, holding that the date of provision of basic amenities would be 19.09.2005, and, as such, the date of auction would be deemed to be that date. Even the Revision petition filed against that order, as stated above, was dismissed vide order dated 01.10.2009. Even vide order dated 25.02.2010, everything was clarified, which attained finality upto the Apex Court. This Commission cannot go behind the orders, referred to above, which have already attained finality. In this view of the matter, the Counsel for the Judgment Debtors cannot be allowed to agitate the same points, again and again, once the same have already been adjudicated upon, and attained finality. It is, therefore, held that the Decree Holders/complainants, are entitled to interest @18% p.a., on the amount deposited by them from 29.03.1993 to 15.04.1998 and also interest from 07.09.2005 to 19.09.2005 on the amount of Rs.4,50,000/-, upto the date of auction i.e. 19.09.2005.
18. Coming to the claim of the Decree Holders, for refund of amount of Rs.4,50,000/-, which according to them, was got deposited, from them, under coercion, for the issuance of No Objection Certificate, it may be stated here, that this amount allegedly related to the payment of ground rent/lease money due to the Judgment Debtors. No doubt, in view of the order dated 28.05.1999, passed in favour of the Decree Holders, ground rent could not be charged, earlier to the provision of basic amenities/facilities. However, there is nothing, on the record, to prove, that this ground rent/lease money, was deposited by the Decree Holders, under coercion. This amount was deposited, no doubt, on 07.09.2005. However, the Judgment Debtors, are liable to pay interest on this amount from 07.09.2005 to 19.09.2005 (the later date) being the date of auction, as per order dated 11.05.2009, when the basic amenities were provided to the Decree Holders/complainants. In the order dated 28.05.1999, referred to above, it was held that after the provision of basic amenities, the payment due, shall be rescheduled. It was not held, in the order dated 28.05.1999, that the amount due to the Judgment Debtors, could not be recovered after rescheduling the payments. Even in the orders dated 01.10.2009, 25.02.2010, 09.12.2011 and 13.03.2012, referred to above, it was never held that the amount of Rs.4,50,000/-, was illegally got deposited by the Judgment Debtors, from the Decree Holders. The submission of the Counsel for the Decree Holders, in this regard, therefore, being devoid of merit, is rejected.
19. The submission of the Counsel for the Judgment Debtors, to the effect, that they were entitled to rent/mesne profits earned by the Decree Holders, in respect of 3 storeyed building, raised on the plot, by them (Decree Holders), is devoid of merit. This Commission, under the Consumer Protection Act, has no power to decide the question of alleged counterclaim, raised by the Judgment Debtors. Once it has been held above, that the date of provision of basic amenities and auction was 19.09.2005, if any amount of rent, was earned by the Decree Holders, thereafter, it was their income, they being the lessees of the property. The Judgment Debtors had no claim, whatsoever, on such an amount. The submission being without substance, is rejected.
20. The next question, that falls for consideration, is, as to what amount, the Decree Holders, are entitled to recover from the Judgment Debtors. In pursuance of the order passed by the National Consumer Disputes Redressal Commission, in Revision Petition No. 3501 of 2009, a sum of Rs.16,47,860/-, was deposited by the Judgment Debtors on 18.05.2010. That amount has already been deposited, in the FDR, in the bank, by the District Forum, as per the report of the office. The Decree Holders, as per the calculation sheet, correctness whereof, has been verified by this office, were entitled to interest to the tune of Rs.30,33,413/- upto 19.09.2005. Out of this amount Rs.16,47,860/-, as stated above, has already been deposited, by the Judgment Debtors, and a sum of Rs.13,85,553/- , is still due, to the Decree Holders, against the Judgment Debtors.
21. For the reasons, recorded above, the Judgment Debtors are held liable to pay a sum of Rs.13,85,553/-, in addition to the amount, already deposited by them. They are directed to deposit Rs.13,85,553/-, still due, against them, within a period of 30 days, from the date of receipt of a certified copy of the order, in this Commission.
22. If this amount is deposited, the same alongwith the amount of Rs.16,47,860/-, already deposited, by the Judgment Debtors, with interest, if any accrued thereon, shall be released, in favour of the Decree Holders, after the expiry of period of appeal or revision, if none is filed, or after the decision of appeal or revision, if one is filed.
23. Certified copies of the order be sent to the parties, free of charge.
24. File be put upon 06.07.2012 for initiating proceedings Under Section 27 of the Consumer Protection Act, 1986, if the order is not complied with, as directed above.
Pronounced.
May 21, 2012 Sd/-
[JUSTICE SHAM SUNDER (Retd.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg