National Consumer Disputes Redressal
Narendra K. Sodhi vs Nandini N. Jadhav & Ors. on 16 April, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITIONS NO. 790-809 OF 2011 WITH (IA Nos.1 & 2 OF 2011, for stay and delay) (From the order dated 06.07.2010 in Appeal No. 264 to 283/2010 of the State Commission, Maharashtra) @ First Appeal No.264/2010 Narendra K. Sodhi Prop. of M/s N.K.Sodhi & Co. Shop No.1, Yashodhan Building Chandavarkar Cross Road No.1, Borivali (W), Mumbai - 400092 Petitioner Vs. Nandini N. Jadhav Age Adult, residing at C/001, Rose Garden CHS Ltd., Pandurang Wadi, Mira Road East, Taluka & District Thane 401104 Maharashtra Respondent @ First Appeal No.265/2010 Narendra K. Sodhi Prop. of M/s N.K.Sodhi & Co. Shop No.1, Yashodhan Building Chandavarkar Cross Road No.1, Borivali (W), Mumbai - 400092 Petitioner Vs. Pandurang L. Dhuri Age Adult, residing at A/101, Rose Garden CHS Ltd., Pandurang Wadi, Mira Road East, Taluka & District Thane 401104 Maharashtra Respondent @ First Appeal No.266/2010 Narendra K. Sodhi Prop. of M/s N.K.Sodhi & Co. Shop No.1, Yashodhan Building Chandavarkar Cross Road No.1, Borivali (W), Mumbai - 400092 Petitioner Vs. Nandkishore W.Dalvi Age Adult, residing at B/101, Rose Garden CHS Ltd., Pandurang Wadi, Mira Road East, Taluka & District Thane 401104 Maharashtra Respondent @ First Appeal No.267/2010 Narendra K. Sodhi Prop. of M/s N.K.Sodhi & Co. Shop No.1, Yashodhan Building Chandavarkar Cross Road No.1, Borivali (W), Mumbai - 400092 Petitioner Vs. Nandkishore R. Jadhav Age Adult, residing at C/002 Rose Garden CHS Ltd., Pandurang Wadi, Mira Road East, Taluka & District Thane 401104 Maharashtra Respondent @ First Appeal No.268/2010 Narendra K. Sodhi Prop. of M/s N.K.Sodhi & Co. Shop No.1, Yashodhan Building Chandavarkar Cross Road No.1, Borivali (W), Mumbai - 400092 Petitioner Vs. Asha D. Malankar Age Adult, residing at A/102 Rose Garden CHS Ltd., Pandurang Wadi, Mira Road East, Taluka & District Thane 401104 Maharashtra Respondent @ First Appeal No.269/2010 Narendra K. Sodhi Prop. of M/s N.K.Sodhi & Co. Shop No.1, Yashodhan Building Chandavarkar Cross Road No.1, Borivali (W), Mumbai - 400092 Petitioner Vs. Anil Kumar Jha Age Adult, residing at B/304, Rose Garden CHS Ltd., Pandurang Wadi, Mira Road East, Taluka & District Thane 401104 Maharashtra Respondent @ First Appeal No.270/2010 Narendra K. Sodhi Prop. of M/s N.K.Sodhi & Co. Shop No.1, Yashodhan Building Chandavarkar Cross Road No.1, Borivali (W), Mumbai - 400092 Petitioner Vs. Abhimanyu Jaising Pawar Age Adult, residing at G/404, Rose Garden CHS Ltd., Pandurang Wadi, Mira Road East, Taluka & District Thane 401104 Maharashtra Respondent @ First Appeal No.271/2010 Narendra K. Sodhi Prop. of M/s N.K.Sodhi & Co. Shop No.1, Yashodhan Building Chandavarkar Cross Road No.1, Borivali (W), Mumbai - 400092 Petitioner Vs. Jagannath H.Dhuri Age Adult, residing at A/104, Rose Garden CHS Ltd., Pandurang Wadi, Mira Road East, Taluka & District Thane 401104 Maharashtra Respondent @ First Appeal No.272/2010 Narendra K. Sodhi Prop. of M/s N.K.Sodhi & Co. Shop No.1, Yashodhan Building Chandavarkar Cross Road No.1, Borivali (W), Mumbai - 400092 Petitioner Vs. Vijaykumar Sayyanna Palia Age Adult, residing at B/504, Rose Garden CHS Ltd., Pandurang Wadi, Mira Road East, Taluka & District Thane 401104 Maharashtra Respondent @ First Appeal No.273/2010 Narendra K. Sodhi Prop. of M/s N.K.Sodhi & Co. Shop No.1, Yashodhan Building Chandavarkar Cross Road No.1, Borivali (W), Mumbai - 400092 Petitioner Vs. Murari B.Bharadkar Age Adult, residing at E/203, Rose Garden CHS Ltd., Pandurang Wadi, Mira Road East, Taluka & District Thane 401104 Maharashtra Respondent @ First Appeal No.274/2010 Narendra K. Sodhi Prop. of M/s N.K.Sodhi & Co. Shop No.1, Yashodhan Building Chandavarkar Cross Road No.1, Borivali (W), Mumbai - 400092 Petitioner Vs. Vikram M. Shah Age Adult, residing at C/402, Rose Garden CHS Ltd., Pandurang Wadi, Mira Road East, Taluka & District Thane 401104 Maharashtra Respondent @ First Appeal No.275/2010 Narendra K. Sodhi Prop. of M/s N.K.Sodhi & Co. Shop No.1, Yashodhan Building Chandavarkar Cross Road No.1, Borivali (W), Mumbai - 400092 Petitioner Vs. Digamber D. Naik Age Adult, residing at D/102, Rose Garden CHS Ltd., Pandurang Wadi, Mira Road East, Taluka & District Thane 401104 Maharashtra Respondent @ First Appeal No.276/2010 Narendra K. Sodhi Prop. of M/s N.K.Sodhi & Co. Shop No.1, Yashodhan Building Chandavarkar Cross Road No.1, Borivali (W), Mumbai - 400092 Petitioner Vs. Milagiris R. Fernandes Age Adult, residing at E/602, Rose Garden CHS Ltd., Pandurang Wadi, Mira Road East, Taluka & District Thane 401104 Maharashtra Respondent @ First Appeal No.277/2010 Narendra K. Sodhi Prop. of M/s N.K.Sodhi & Co. Shop No.1, Yashodhan Building Chandavarkar Cross Road No.1, Borivali (W), Mumbai - 400092 Petitioner Vs. Ramesh M.Chavan Age Adult, residing at E/202, Rose Garden CHS Ltd., Pandurang Wadi, Mira Road East, Taluka & District Thane 401104 Maharashtra Respondent @ First Appeal No.278/2010 Narendra K. Sodhi Prop. of M/s N.K.Sodhi & Co. Shop No.1, Yashodhan Building Chandavarkar Cross Road No.1, Borivali (W), Mumbai - 400092 Petitioner Vs. Prabhakar R.Bagave Age Adult, residing at A/402, Rose Garden CHS Ltd., Pandurang Wadi, Mira Road East, Taluka & District Thane 401104 Maharashtra Respondent @ First Appeal No.279/2010 Narendra K. Sodhi Prop. of M/s N.K.Sodhi & Co. Shop No.1, Yashodhan Building Chandavarkar Cross Road No.1, Borivali (W), Mumbai - 400092 Petitioner Vs. Jitendra K. Panchal Age Adult, residing at E/204, Rose Garden CHS Ltd., Pandurang Wadi, Mira Road East, Taluka & District Thane 401104 Maharashtra Respondent @ First Appeal No.280/2010 Narendra K. Sodhi Prop. of M/s N.K.Sodhi & Co. Shop No.1, Yashodhan Building Chandavarkar Cross Road No.1, Borivali (W), Mumbai - 400092 Petitioner Vs. Ghanshyam S. Shukla Age Adult, residing at E/103, Rose Garden CHS Ltd., Pandurang Wadi, Mira Road East, Taluka & District Thane 401104 Maharashtra Respondent @ First Appeal No.281/2010 Narendra K. Sodhi Prop. of M/s N.K.Sodhi & Co. Shop No.1, Yashodhan Building Chandavarkar Cross Road No.1, Borivali (W), Mumbai - 400092 Petitioner Vs. Shobha S. Waghmare Age Adult, residing at G/102, Rose Garden CHS Ltd., Pandurang Wadi, Mira Road East, Taluka & District Thane 401104 Maharashtra Respondent @ First Appeal No.282/2010 Narendra K. Sodhi Prop. of M/s N.K.Sodhi & Co. Shop No.1, Yashodhan Building Chandavarkar Cross Road No.1, Borivali (W), Mumbai - 400092 Petitioner Vs. Jagannath Babu Malik Age Adult, residing at G/001, Rose Garden CHS Ltd., Pandurang Wadi, Mira Road East, Taluka & District Thane 401104 Maharashtra Respondent @ First Appeal No.283/2010 Narendra K. Sodhi Prop. of M/s N.K.Sodhi & Co. Shop No.1, Yashodhan Building Chandavarkar Cross Road No.1, Borivali (W), Mumbai - 400092 Petitioner Vs. Devendra S. Orak Age Adult, residing at D/502, Rose Garden CHS Ltd., Pandurang Wadi, Mira Road East, Taluka & District Thane 401104 Maharashtra Respondent BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Petitioner (s) : Mr. Vinay Navare and Mr.Satyajeet Kumar, Advocates For the Respondent(s) : Nemo Pronounced on : 16th April, 2012 ORDER
It is basic principle of jurisprudence that when any litigant approaches the judicial forum by concealing the material facts, then his petition should be thrown away at the threshold. Similar is the situation in the above noted present revision petitions.
2. Maharashtra State Consumer Disputes Redressal Commission, Mumbai (for short as State Commission) vide its order dated 6.7.2010, dismissed the twenty appeals filed by the petitioner/opposite party. The impugned order of the State Commission reads as under ;
These matters are called out twice, but none is present for appellant. Mr.Ashok Desai, Advocate present for the respondents.
ORDER
1. Appeal No.264 to 283/2008 stand dismissed for default at 12.40 p.m.
2. No order as to costs.
3. Copies of the order be furnished to the parties.
3. Respondents/complainants have filed twenty complaints against the petitioner, who is builder, on the ground that respondents are in possession of their various respective flats after having paid the consideration amount to the petitioner as per agreements made between the parties. However, petitioner did not issue a permanent possession letter to occupation certificate to the flat purchasers. Petitioner after having received the consideration amount has failed to comply with the conditions mentioned in the Registered Agreement in its clause of amenities.
4. It is also alleged that petitioner has failed to make the conveyance of the land on which the building has been constructed.
5. Complaints of the respondents were opposed by the petitioner, before the District Forum.
6. District Forum, vide its order dated 23.11.2007, partly allowed the complaints with costs and directed the petitioner to issue the possession letter and occupation certificate to all the complainants and also to execute the conveyance deed of the land. Besides, that certain other directions were also given to the petitioner.
7. Aggrieved by the order of District Forum, petitioner filed twenty appeals before the State Commission, which were dismissed, vide impugned order.
8. Aggrieved by the order of State Commission, petitioner has filed the above noted twenty revision petitions. Along with these petitions, application for condonation of delay has also been filed.
9. The main ground taken up by the petitioner in these petitions as well as for condonation of delay is that the respondents have also filed criminal complaint before the Court of Magistrate and the matter was referred to the Lok Adalat. At one stage, the parties appeared before the Lok Adalat and it was decided that parties will not take any action till the matter is disposed of by the Lok Adalat. Since, it was mutually agreed between the parties that nobody will proceed with the matter till the Lok Adalat decides the reference, the petitioner informed his advocate that hearing of the appeals before State Commission should not go on till the decision of the Lok Adalat. Under these circumstances, petitioners advocate did not appear before the State Commission on the next date. Since, no date was informed from the Lok Adalat, petitioner personally visited the office of Lok Adalat on 20.7.2010. The search of some papers were required to be undertaken and turned out that the Court had shifted to some other premises. Ultimately, after the papers were traced, the matter was transferred to the shifted premises in old building and it was adjourned to 27.8.2010. In the meanwhile, when petitioner went into the office of the State Commission, he realized that on 6.7.2010, the matter came up before State Commission and on that date, State Commission dismissed the appeals for default.
10. In these circumstances, petitioner filed an application for setting aside the order of dismissal for default, dated 6.7.2010. Later on, that application was allowed to be withdrawn as petitioner was informed that State Commission does not have jurisdiction to set aside its own order. Accordingly, present revision petitions have been filed before this Commission.
11. On 3.4.2012, when these matters were listed for admission hearing before us, there was no appearance on behalf of the respondents.
12. It was pointed out by the learned counsel for the petitioner that respondents have been duly served and they have already filed their written arguments. In their written arguments, they have stated that they are Lower middle class Flat Purchasers who cannot afford to appoint Advocate and represent at Delhi. They further prayed that their written arguments be accepted.
13. Accordingly, we have gone through the written arguments submitted on behalf of the respondents.
14. Petitioner along with these petitions has also submitted Brief synopsis and list of dates (page H of the paper book). The written synopsis and list of dates given by the petitioner, is a sketchy document and no head or tail can be made out from the list of dates. By filing such synopsis and list of dates, petitioner has tried to mislead this Commission.
15. In their written arguments, respondents have given the list of dates and events in a chronological order, which has been placed at page 169 of the paper book, and the same is reproduced as under ;
2) Respondent submits date wise history of above Appeal No.264/2008 to 283/2008 is as under ;
Dates Particulars Remarks 23.11.2007 Thane Distt. Forum issued Order for Compensation for Rs.25,834/- and specific performance of Land Conveyance etc. 27.2.2008 Appellant had filed Appeal before Honble State Commission.
26.5.2008 State Commission had issued notice to respondents to appear in Court on 30.10.2008 for hearing for admission with Reply.
30.10.2008 It was Holiday, hence State Commission Court was adjourned to next date 7.1.2009.
7.1.2009 Reply submitted by all 20 Opponents before State Commission. Appellant was absent. Copies are sent to Appellant which are acknowledged 3.3.2009. Next date was informed to Appellant that is on 24.3.2009.
24.3.2009 State Commission Forum had heard all 20 Opponents Written Arguments are submitted. Order is passed that all 20 cases are dismissed for default.
14.4.2009 Appellant moved application to set aside order 24.3.2009 by giving false excuses and averments.
16.4.2009 Notice issue by State Forum to respondent to attend date of hearing on 15.6.2009. Appellant was absent. Next date was given on Notice Board 10.8.2009.
15.6.2009 Adjourned for disposal of old cases 10.8.2009 Adjourned for disposal of old cases 23.11.2009 Adjourned for disposal of old cases 19.1.2010 Quorum was not full hence adjourned to next date 15.3.2010 Adjourned for next date 24.4.2010 Case was argued and appellant failed to give full detail hence adjourned to being details form appellant.
6.7.2010 Appellant was deliberately absent with his Advocate hence State Forum has dismissed the appeal.
16. As per above history of present cases, the State Commission had earlier also dismissed the appeals of the petitioner, on 24.3.2009, in default.
17. Petitioner has deliberately and with ulterior motive tried to mislead this Commission since he did not mention about this fact that earlier also his appeals were dismissed in default on 24.3.2009. Thus, the petitioner has concealed material fact from this Commission. On this short point, the present petitions are liable to be dismissed.
18. Even otherwise, there has been delay of 130 days in filing of the present petitions. The only ground taken for condoning the delay is regarding Lok Adalat proceeding. Lok Adalat proceeding, if any, pending between the parties has no bearing with the proceedings pending before the State Commission. Interestingly, petitioner has not placed on record certified copy of the proceeding of the Lok Adalat, purported to have been taken place between the parties.
19. It is well settled that sufficient cause for non-appearance in each case, is a question of fact.
20. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;
It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.
21. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, the Apex Court has observed ;
We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.
22. Recently, Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has laid down that;
It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer Foras.
23. After going through the application for condonation of delay, we find that petitioner has made absolutely vague averments in the application. The reasons mentioned in the application, can by no stretch of imagination, be said to be the sufficient cause.
24. Even on merits, petitioner has no case since after receiving consideration amount from the respondents, petitioner has failed to issue the permanent possession letter to the respondents.
25. 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 laws delay and bringing bad name to the judicial system.
26. 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. Time and again Courts have held that if any litigant approaches the Court of equity with unclean hands, suppress the material facts, make false averments in the petition and tries to mislead and hoodwink the judicial Forums, then his petition should be thrown away at the threshold. 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 petitioner who after taking entire costs of the building 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.
27. Now question arises for consideration is as to what should be the quantum of costs which should be imposed upon the petitioner for dragging the respondents upto this fora when petitioner 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.
28. 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 courts 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 mans 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.
29. In our opinion, present petitions are nothing but a gross abuse of process of law and the same are totally false, frivolous and bogus one, which are required to be dismissed with costs. Accordingly, we dismiss each of the above twenty petitions with costs of Rs.10,000/- each (in total of Rs.2 lakhs)
30. Costs of Rs.2,00,000/- (Rupees two lakhs only) be deposited by way of demand draft in the name of Consumer Legal Aid Account of this Commission, within one month from today.
31. In case, petitioner fails to deposit the aforesaid costs within the prescribed period, he shall also be liable to pay interest @ 9% p.a., till realization.
32. Pending application also stands disposed of.
33. List for compliance on 25.5.2012.
...J (V.B. GUPTA) (PRESIDING MEMBER) ....
(VINAY KUMAR) (MEMBER) Sonia/