State Consumer Disputes Redressal Commission
Attar Singh Kadian vs Landmarks Apartments Pvt. on 30 June, 2023
Cause Title/Judgement-Entry Heading1 Heading2 Execution Application No. EA/10/2016 ( Date of Filing : 02 Dec 2016 ) In Complaint Case No. CC/128/2015 1. ATTAR SINGH KADIAN S/O SH.DHARA SINGH 2. OMWATI W/O SH. ATTAR SINGH KADIAN 3. SHAILENDER KADIAN 4. DHARMENDER KADIAN ALL R/O HOUSE NO.870/35, JANTA COLONY, ROHTAK ...........Appellant(s) Versus 1. LANDMARKS APARTMENTS PVT. GURGAON THR. ITS DIRECTOR, SANDEEP CHHILLAR S/O KARTAR SINGH 2. YASHVIR KADYAN R/O PLOT NO.85 SECTOR 44, GURGAON ...........Respondent(s) BEFORE: S . P . Sood PRESIDING MEMBER PRESENT: Dated : 30 Jun 2023 Final Order / Judgement STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA PANCHKULA E.A. No.10 of 2016 in Consumer Complaint No.128 of 2015 Date of the Institution:30.11.2016 Date of Final Hearing:01.06.2023 Date of pronouncement: 01.06.2023 1. Mr. Attar Singh Kadian S/o Shri Dhara Singh. 2. Omwati W/o Shri Attar Singh Kadian 3. Shailender Kadian S/o Shri Attar Singh Kadian 4. Dharamender Kadian S/o Shri Attar Singh Kadian. All R/o # 870/35, Janta Colony, Rohtak. 2nd Address:- # C-83, Sector-35,Suncity, Near Water Tank No.10, Rohtak .....Complainants-Decree Holders Versus M/s Landmark Apartments Pvt. Limited, Gurgaon, through its Directors:- 1. Shri Sandeep Chillar S/o Shri Kartar Singh 2. Shri Yashvir Kadayan S/o Shri Raghbir Singh Kadayan Office at Plot No.85, Sector-44, Gurgaon, Haryana. .....Opposite Parties-Judgment Debtors CORAM: S.P.Sood, Judicial Member. Present:- Mr. S.P. Khatri, along with Mr. Sankalp, counsel for the complainants-Decree Holders. Mr. Shubnit Hans, counsel for the opposite parties-judgment Debtors. ORDER S P SOOD, JUDICIAL MEMBER:
This Commission while allowing C.C. No.128 of 2015 has directed the OPs to pay Rs.53,50,000/- alongwith 12% interest per annum from the date of deposits, till its realization after deducting Rs.2,70,000/- the assured return already paid by the opposite parties to the complainants within a period of 60 days and in case of default to refund the amount the builder were held liable to pay interest @ 15% per annum on the ordered amount. In addition, the complaint was also allowed Rs.25,000/- for mental agony/harassment etc. and Rs.10,000/- as litigation expenses.
2. Seeking compliance of the order dated 26.07.2016 passed by this Commission which has also attained finality wherein the complainant-Decree holder has filed this execution application No.10 of 2016 on 30.11.2016 before this Commission as JDs having failed to comply the said order, Parties appeared before this Commission.
3. Perusal of the record reveals that in order of Complying with the above said order, the JDs-OPs has made the several payments, the details of which is as under: -
Sr. No. Date Amount
1. 16.08.2018 Rs.10,00,000/-
2. 30.11.2018 Rs.10,00,000/-
3. 29.01.2019 Rs.10,00,000/-
4. 26.03.2019 Rs.20,00,000/-
5. 12.04.2019 Rs.10,00,000/-
6. 26.08.2018 Rs.15,00,000/-
7. 30.10.2019 Rs.08,00,000/-
8. 10.12.2019, Rs.7,90,990/-, Rs.2,48,909/-, Rs.10,00,000/-& Rs.10,00,000/-
Total Amount uptill 10.12.2019 Rs.1,13,39,899/-
4. This is how in all an amount of Rs.1,13,39,899/- has been received by the Decree Holders-complainants. As such after paying up the above stated amount JDs assert of their having cleared their entire liability under the said award in question.
5. On the other hand, learned counsel for DH though admit of his having received payment of Rs.1,13,39,899/- along with interest @ 12% from the JDs which included principal amount, compensation, litigation expenses and interest etc. but were not satisfied. Therefore, the matter was further adjourned to 01.07.2019 for producing relevant calculation sheets from authorized chartered accountants on behalf of DH and that of JDs. The calculation sheets on behalf of both the parties were produced before the commission on 30.08.2022 respectively but there was a difference between the same. Thereafter, the matter was adjourned to 27.09.2022 for reconciliation of the calculation sheets. The matter was again taken up on September, 27th 2022 and on that date Judgment Debtor-opposite party had filed fresh calculation sheets along with TDS Certificate and the case was adjourned to 09.11.2022 for filing objection by Decree Holders-complainants on the calculation sheet supplied by Judgment Debtor-opposite party. On 15.12.2022 Decree Holders-complainants filed objection to the calculation sheet supplied by Judgment Debtor-opposite party and thereafter the matter was adjourned to 15.12.2022, 31.01.2023, 24.02.2023 & 17.04.2023 for filing reply to these objections by Judgment Debtor-opposite party. Even, the records reveal that the matter was taken up before the National Lok Adalat for passing appropriate orders and thereafter the matter was again adjourned to 26.05.2023 and 01.06.2023 for passing appropriate orders. Calculations sheets as provided by both the parties were carefully perused and examined wherein JDs have consistently desired to appropriate various payments firstly towards the principal amount and thereafter other payments tendered by them towards the interest components. However to resolve this dispute it would be relevant here to pursue the order passed by the Commission in its order dated 26.07.2016, the relevant portion is as under:-
"while accepting the complaint, the O.P. is directed to refund of the amount of Rs.53,50,000/- alongwith 12% interest per annum from the date of deposits, till its realization after deducting Rs.2,70,000/- the assured return already paid by the opposite parties to the complainant. In case, there is a breach in making payment within the stipulated period of sixty days, in that eventuality, the complainants would further be entitled to get the interest @ 15% per annum, for the defaulting period". The complainant is also entitled of Rs.25,000/- for mental agony/harassment etc. In addition, the complainant is also entitled of Rs.10,000/- as litigation expenses.
6. It is admitted case of both the parties that in compliance of the aforesaid order, JDs had made full and final payment of Rs.1,13,39,899/-, so the JDs have cleared the entire outstanding amount standing against the DHs which included principal amount, compensation, litigation expenses and interest and thus nothing was pending towards the DH. It is pertinent to mention here that the builder has also deposited Rs.6,80,544 against TDS. The relevant TDS certificate is also attached with the file.
7. Section 47 (1) of CPC is relevant in this regard:-
"(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit."
Even it was also observed by Hon'ble Supreme Court of India that where
(iv) An executing court granted decree for interest which was not part of the decree for execution on ground of delay and unreasonable stand taken in execution. Since the executing court cannot travel beyond decree under execution, the said decree was held to be without jurisdiction; (Kaneshwar Das Gupta V. State of Uttar Pradesh, AIR 1997 SC 410)."
It has been held by Hon'ble Supreme Court of India in S.Bhaskaran Vs. Sebastian (Dead) by Lrs. & Ors. In Civil Appeal No.7800 of 2014 decided on 13.09.2019. Para No.9 is relevant and reproduced as under:-
"Having perused the records and the findings of the Trial Court, we find ourselves unable to agree with the decision of the High Court in the impugned judgment. It is well-settled that an executing court cannot travel beyond the order or decree under execution (see Rameshwar Dass Gupta Vs. State of UP and Another, 1996 (4) SCT 575 (1996) 5 SCC728."
8. It has further been held by the Hon'ble Supreme Court of India in Civil Appeal No.1220 of 2007 titled Vedic Girls Senior Secondary School, Arya Samaj Mandir, Jhajjar Vs. Smt. Rajwanti and others decided on 08.03.2007, elaborating the provisions of section 47 of Civil Procedure Code relating to execution that the executing court cannot travel beyond the decree by enlarging its scope. Hon'ble Supreme Court also observed that if the decree is not clear in its terms, the proper course for the decree holder is to get the same amended accordingly from the court passing the same and that the executing court cannot grant any relief which is not discernible in the terms of the decree.
9. In the expressed provisions of Section 47 of Civil Produce Code, 1908 and keeping in view the observations of the Hon'ble Supreme Court in Kaneshwar Das Gupta V. State of Uttar Pradesh, (supra), S.Bhaskaran Vs. Sebastian (Dead) by Lrs. & Ors.(supra) and Vedic Girls Senior Secondary School, Arya Samaj Mandir, Jhajjar Vs. Smt. Rajwanti and others (supra), in our considered opinion, the order of the Commission passed in decree dated 26.07.2016 has already been complied with and in terms of compliance, JDs had made full and final payment of Rs.1,13,39,899/- uptill 10.12.2019. This is how the JDs have cleared the entire outstanding amount standing against the DHs which included principal amount, compensation, litigation expenses and interest and thus nothing was pending towards the DH. The DH also received Rs.1,13,39,899/- towards full and final settlement and subsequent orders of this Commission.
10. Keeping in view the aforesaid facts and circumstances of the case, this commission is of considered view that the execution petition stands fully complied with and duly discharged in its entirety and thus hold that the execution petition has been complied with in terms of the order dated 26.07.2016 passed by this Commission. Execution petition is disposed of as being fully satisfied.
Pronounced on 01st June, 2023 S. P. Sood Judicial Member Addl. Bench-I. [ S . P . Sood] PRESIDING MEMBER