State Consumer Disputes Redressal Commission
Gopinath Huf Rep. By Karta vs P.Rajeswari Murthy on 5 June, 2023
Cause Title/Judgement-Entry KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BASAVA BHAVAN, BANGALORE. Execution Application No. EA/17/2021 ( Date of Filing : 26 Feb 2021 ) In Complaint Case No. CC/1/2019 1. Gopinath HUF Rep. by Karta S/o Sreerama Setty, Aged about 66 years, R/a No.1273, Saimandiram road, 1st F Main, Girinagar,2nd phase, Bengaluru-560085 Karnataka 2. Indira Gopinath W/o Gopinanth, Aged about 60 years, R/a No.1273, Saimandiram road, 1st F Main, Girinagar,2nd phase, Bengaluru-560085 Karnataka ...........Appellant(s) Versus 1. P.Rajeswari Murthy W/o P.S.Sreenivasa Murthy R/a No.112/1, Near Renuka Temple, 7th cross, 2nd phase, J.P.Nagar, Bengaluru-78 Karnataka 2. P.S.Tejaswani Murthy D/o P.S.Sreenivasa Murthy R/a No.112/1, Near Renuka Temple, 7th cross, 2nd phase, J.P.Nagar, Bengaluru-78 Karnataka 3. Estate/Legal Heirs of Late P.S.Sreenivasa Murthy PSY R/a No.112/1, Near Renuka Temple, 7th cross, 2nd phase, J.P.Nagar, Bengaluru-78 Karnataka 4. L.Balarama Reddy S/o Krishna Reddy, R/a No.1/59, Sai Nivas, Chikkakallasandra Main road, Hanumagiri layout, Padmanabhanagar, Bengaluru-560061 Karnataka 5. B.Padma W/o Balarama Reddy R/a No.1/59, Sai Nivas, Chikkakallasandra Main road, Hanumagiri layout, Padmanabhanagar, Bengaluru-560061 Karnataka 6. Selvanarayana Alias Samartha Dr.N.Selvaraj S/o A.Narayan, R/a No.6, Dharathi, 30th cross, 23rd Main, BSK 2nd stage, Bengaluru-560070 Karnataka 7. R.Jayaram S/o Late Ramachander Pillai, R/a No.627, Shankari Krupa, 2nd cross street, Muneshwara Nagar, Subramanyapura road, Bengaluru-560061 Karnataka ...........Respondent(s) Execution Application No. EA/18/2021 ( Date of Filing : 26 Feb 2021 ) In Complaint Case No. CC/2/2019 1. Gopinath HUF Rep. by Karta S/o Sreerama Setty, Aged about 66 years, R/a No.1273, Saimandiram road, 1st F Main, Girinagar,2nd phase, Bengaluru-560085 Karnataka 2. Smt. Indira Gopinath W/o Gopinanth, Aged about 60 years, R/a No.1273, Saimandiram road, 1st F Main, Girinagar,2nd phase, Bengaluru-560085 Karnataka ...........Appellant(s) Versus 1. P.Rajeswari Murthy W/o P.S.Sreenivasa Murthy R/a No.112/1, Near Renuka Temple, 7th cross, 2nd phase, J.P.Nagar, Bengaluru-78 Karnataka 2. P.S.Tejaswani Murthy D/o P.S.Sreenivasa Murthy R/a No.112/1, Near Renuka Temple, 7th cross, 2nd phase, J.P.Nagar, Bengaluru-78 Karnataka 3. Estate/Legal Heirs of Late P.S.Sreenivasa Murthy PSY R/a No.112/1, Near Renuka Temple, 7th cross, 2nd phase, J.P.Nagar, Bengaluru-78 Karnataka 4. L.Balarama Reddy S/o Krishna Reddy, R/a No.1/59, Sai Nivas, Chikkakallasandra Main road, Hanumagiri layout, Padmanabhanagar, Bengaluru-560061 Karnataka 5. Smt.Padma W/o Balarama Reddy R/a No.1/59, Sai Nivas, Chikkakallasandra Main road, Hanumagiri layout, Padmanabhanagar, Bengaluru-560061 Karnataka 6. Selvanarayana Alias Samartha Dr.N.Selvaraj S/o A.Narayan, R/a No.6, Dharathi, 30th cross, 23rd Main, BSK 2nd stage, Bengaluru-560070 Karnataka 7. R.Jayaram S/o Late Ramachander Pillai, R/a No.627, Shankari Krupa, 2nd cross street, Muneshwara Nagar, Subramanyapura road, Bengaluru-560061 Karnataka ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE Huluvadi G. Ramesh PRESIDENT HON'BLE MR. Krishnamurthy B.Sangannavar JUDICIAL MEMBER HON'BLE MRS. Smt. Divyashree.M MEMBER PRESENT: Dated : 05 Jun 2023 Final Order / Judgement Date of filing:26.02.2021 BEFORE THE KARNATAKA STATE CONSUMR DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH) DATED: 05th Day of June 2023 PRESENT Mr. K B SANGANNANAVAR: JUDICIAL MEMBER
Mrs.M.DIVYASHREE : LADY MEMBER EXECUTION APPLICATION Nos.17 & 18 of 2021 COMMON ORDERS ON THE APPLICATION FILED UNDER SECTION 71 and 72 Of CONSUMER PROTECTION ACT, 2019 ON IA DATED 05.08.2022 FILED UNDER SECTION 50 OF CONSUMER PROTECTION ACT, 2019 TO REVIEW THE ORDER DATED 02.07.2022.
BY Mr. K. B. SANGANNANAVAR: Pri. Dist. & Session Judge (R)- JUDICIAL MEMBER The Awardees-Dhrs having been obtained an award dated 23.01.2020 passed in Consumer Complaint Nos.1 and 2 of 2019 pursuant to their compromise petition filed under Order XXIII Rule 3 Read with Section 151 of CPC, sought enforcement against Jdrs/ Respondent No.1 to 7.
Jdr Nos.1, 2 and 4 to 7 put their appearance through learned counsel submitted, EA proceedings initiated are not maintainable, since they have already satisfied the awards in toto.
In view of rival contentions of parties to the IAs, we have to examine the proceedings of the EAs. It is found from the record as this Commission on 02.07.2022 recorded compromise terms entered between parties under Order XXIII rule 3 Read with Section 151 of CPC in Consumer Complaint Nos.1 and 2 of 2019. In this compromise petition it is found Jdr Nos.1, 2 and 4 to 7 herein have agreed to pay a sum of Rs.9,30,155.75/- which according to awardees/Dhrs is not paid. It is submitted that a registered Sale Deed in respect of flat was executed on 12.02.2020, but keys were handed over on 21.09.2021. It is submitted, family members of Dhrs have not occupied the Flats as they have not received Occupation Certificate. Further submitted, either electricity connection or water connection provided to the flats in question. It is also found from the enquiry, this Commission pending consideration of other amenities to be provide by Jdr Nos.1, 2 and 4 to 7, were been directed to pay a sum of Rs.9,30,155.75/- to the Dhrs as agreed as per clause-4 of compromise petition entered on 23.01.2020 and further directed to make efforts to get Occupancy Certificate from concerned authorities as early as possible to enable Dhrs to occupy the flat legally with electricity and water connections, returnable by 05.08.2022 and in the meantime pursuant to this order on 05.08.2022 Jdrs filed an application under Section 50 of Consumer Protection Act, 2019 Read with Section 151 of CPC along with copies of documents for perusal to review the order dated 02.07.2022, however on the contrary Dhrs strongly opposed the said Application as not maintainable.
In view of rival contentions of parties to these IAs, Commission to examine as to how the award passed by this Commission pursuant to compromise petition entered between parties has to be executed keeping in mind the mandate of compromise terms and object of Consumer Protection Act?
Section 71 provides for enforcement of orders of State Commission which shall be enforced by it in the same manner as if it were a decree made by a Court in a suit before it and the provisions of Order XXI of the First Schedule to the Code of Civil Procedure, 1908 shall, as far as may be, applicable, subject to the modification that every reference therein to the decree shall be construed as reference to the order made under this Act. In so far as Section 72 provides for imposing penalty for non compliance of the order, since Commission conferred with powers of a Judicial Magistrate of First Class for the trial of offence under Sub-Section (1), which provides for powers to punish with imprisonment for a term which shall not be less than 01 month, but which may extent to 3 years or with fine, which shall not be less than Rs.25,000/-, which may extent to Rs.1,00,000/- or with both. Thus Section 71 and 72 of Consumer Protection Act, 2019 provides as to how a decree or award has to be executed.
Let us come to examine the proceedings in Consumer Complaint Nos.1 and 2 of 2019 for better understanding of the case. Complainant Nos.1 and 2 have initiated complaint proceedings against OP Nos.1 to 7 on 01.01.2019 and as the OPs were been served with notice of the complaints and on 23.01.2020 both parties entered into compromised with their dispute under Order XXIII Rule 3 Read with Section 151 of CPC, which was recorded in their presence by the Commission. Thus, by recording terms of compromise entered between parties, Commission proceed to allowed both complaints directed Ops to act upon in terms of compromise petitions with no cost.
Let us come to examined what are the terms of their compromise entered between parties. In CC/1/2019 it is found, as per para-2 agreed, complainant is entitled to 03-Bedrooms, flat bearing no.T3 on the 3rd Floor constructed on Schedule-A property with a super built-up area of 1,325 sq.ft. along with one covered car parking slot in the basement/stilt floor slot no.16, which is more fully described in the Schedule written hereunder and in respect of CC/2/2019 complainant is entitled to obtain a Sale Deed in respect of flat bearing no.PH01 consisting of 03-Bedrooms, situate on the 4th Floor constructed on Schedule-A property consisting of 1,250 sq.ft., along with one covered car parking slot in the basement/stilt floor slot no.03/(PH01), which is more fully described in the Schedule written hereunder. In para-3 of the compromise petition in both cases referred as per Sale Agreement dated 18.07.2008 entered between complainant and OP Nos.1, 2 and 4 to 7 and others in respect of the Schedule-B property and the parties hereto agreed to adhere to the conditions mentioned in the Sale Agreement. Further in Para-04 they entered that the parties hereto agreed and undertake that each other, OP Nos.1, 2 and 4 to 7 herein have agreed to pay the sum of Rs.9,37,155.75/- to the complainant after deducting a sum of Rs.8,75,000/- which will be calculated as per applicable Stamp Duty. This clause also applies to Consumer Complaint Nos.1 and 2 of 2019, which in fact is not disputed by any of the parties. They have also produced Copy of the Agreement dated 18.07.2008 and Sale Deed executed dated 12.02.2020 pursuant to entering into the compromise terms. The Dhr in these 02 EA proceedings sought for enforcement of the terms and conditions entered between parties on 23.01.2020. In these EA proceedings, have sought to pay Rs.9,30,155.75/- as per clause-4, to execute Sale Deed to be signed by all owners as per cause-6 and 7 in applicable RERA format, 3 BHK PH01 and T3 has to registered as per clause-2. Loss of opportunity cost in the flat at Rs.18,000/- per month from the date of complaint dated 01.01.2019 till the date of handing over of habitable flat of around Rs.4,86,000/- till March 2021 till September 2021. All other deficiencies like Occupancy Certificate, Utilities etc, Agreements has to be referred to Jurisdiction with Commission. Thus sought such reliefs against Jdrs.
First complainant having been represented by HUF would submit that Dhrs are entitled for enforcement of reliefs in these two EA proceedings under Sections 71 and 72 of Consumer Protection Act, 2019 and the review filed under Section 50 of Consumer Protection Act, 2019 by Jdrs to review the order dated 02.07.2022 is not maintainable and have also submitted they are entitled for enforcement of award against Jdrs, as they failed to satisfy the awards under these proceedings, as per mandate of terms of compromise coupled with terms of Sale Agreement. On the contrary learned counsel for Jdrs would submit that Commission cannot go beyond the Decree and there is no ambiguity in the decree with regard to the material aspects, as parties are agreed to discharge their obligations and to exercise their right as per compromise petition filed petition under Order XXIII Rule 3 Read with Section 151 of CPC, which came to be recorded by the Commission on 23.01.2020. Further he would submit that a Sale Deed in respect of both flats have already been executed on 12.02.2020 and to find support placed copies of Sale Deed executed in the office of Sub-Registrar, wherein could see as parties to the respective complaints have signed in the office of Sub-Registrar, Basavanagudi, wherein mentioned about initiating of Consumer Complaint No.1 and 2 of 2019 as well reference made about receipt of payment under Agreement of Sale entered between parties in respect of flats mentioned under Sale Agreement and these 02 Sale Deeds described as Schedule-C Property, which in fact is not disputed. In view of these 02 Sale Deeds, vendors namely Jdrs have admitted receipt of Rs.27,43,750/- and Rs.28,97,875/- which could be seen. In para-6 mentioned the purchasers are entitled to secure khata of Schedule-C property on purchase of their cost from BDA/BBMP and vendors are agreed to sign necessary consent letters. In para-1 property taxes in respect of Schedule-A and C and paid up to date by the vendors, purchasers are liable to pay from this day. In para-8 the vendors have this day delivered to the purchaser constructive possession of the Schedule-C property and actual physical vacant possession of the Schedule-C property to the Purchasers. However, the purchaser shall not come in the way of development of the Schedule-A property or in the remaining portion of Schedule-A property and further the purchasers declares that they have no right to do so. In clause-9 the purchaser hereby confirms having taken possession of Schedule-C property as aforesaid and before taking possession the purchasers have inspected and satisfied as to completion of all the works in the Schedule-C property and its fitness for occupation and the purchasers have no claim against the vendors in respect of Schedule-C property. Thus, the above clauses binds not only the complainants/Dhrs/awardees but the Jdrs herein and when clause-9 provides for Dhrs being purchasers, confirmed such sale and its terms having been taken possession of Schedule-C property namely flat no.PH01 and T3 as stated above, now cannot contend that they have not taken possession of the respective flats for non compliance could not be acceptable at all, since they have agreed upon by entering into compromise petition on 02.07.2022 and pursuant to the terms of compromise petition have also obtained a regular Sale Deed dated 12.02.2020, in respect of respective flats cannot seek for amendment of EA to pay agreed amount of Rs.9,30,155.75/- to execute Sale Deed to register Sale Deed as per clause-2 and to compensate at Rs.4,86,000/- as the flat was locked, till September-2021 and since they have agreed with Jdrs to enter terms of compromise on 23.01.2020 and they have obtained Sale Deed on 12.02.2020, now cannot contend that they have lost opportunity to earn rent of the flat at Rs.18,000/- per month from the date of complaint namely from 01.01.2019 till handing over of habitable flat namely till March-2021. Learned counsel for Jdrs would submit, as per Clause-4 of compromise petition, as parties to the respective complaint, agreed and undertake that they each other have agreed to pay Rs.9,30,155.75/- to the complainant after deducting a sum of Rs.8,75,000/- which will be calculated as per applicable Stamp Duty. In our view, when the Sale Deed is obtained in respect of both flats on 12.02.2020 and under the said Sale Deed as already stated above Jdrs have delivered physical possession of respective flats in favor of Dhrs as per clause-4 of compromise terms has to be held obliged by Jdrs or satisfied the said terms as Stamp Duty had paid by Jdrs.
It is also to be noted herein that as per clause-5 of compromise petition Jdrs shall bear the Stamp Duty, cost and expenses of the registration charges towards proposed Sale Deed in respect of Schedule-B property without demanding any sum from complainant and here onwards there is no claim between the complainant and the OP Nos.1, 2 and 4 to 7 whatsoever, except this obligation and duties agreed under this compromise petition and the complaint has not claim any further sum from these OP Nos.1, 2 and 4 to 7, nor from the legal heirs of Late P.S.Srinivasa Murthy any other Forum or court/authority. Thus this clause binds the Dhrs, now cannot seek for amendment of EA seeking execution against Jdrs beyond mandate of the compromise terms. It is in this regard to find substantiate contentions of Jdrs placed a decision reported in (2018) 7 SC cases 479 in the case between Meenakshi Saxena v ECGC Ltd., and another wherein held, it is settled law that executing court cannot go beyond the decree but when there is ambiguity in the decree with regard to the material aspects then it becomes bounden duty of executing court to interpret the decree in the process of giving a true effect to the decree. It is therefore, in so far as the terms agreed between partiers in clause-4 and 5 are concerned as Commission found no ambiguity, parties to the CP are bound by it. Now Dhr cannot seek for enforcement of compensation from Jdrs at the rate of Rs.18,000/- per month from the date of Consumer Complaint No.1 and 2 of 2019 respectively till the date of handing over of habitable flat running at Rs.4,86,000/- till as on September 2021. In our view, these reliefs cannot be added either to Compromise Petition or the Sale Deed clauses as the case may be. In other words, parties to the CP are bound by the terms of compromise, which according to Jdrs have been satisfied by executing a Sale Deed on 12.02.2020 could be acceptable.
These EAs are filed for the enforcement of decree obtained by awardees as such it is not necessary to go in detail on the point of review powers vested under Section 50 of Consumer Protection Act, 2019, either to review the order dated 02.07.2022 or to exercise powers to permit Dhrs to amend their EA. It is in this view of the matter, at the very outset, we have made mentioned as to how the decree or award obtained by complainants in Consumer Complaint Nos.1 and 2 of 2019 have to be executed by examining the materials placed by respective parties, since strict application of CPC could not be applied in strict sense. In other words, Commission has to keep in mind the interest of the parties under EA proceedings and to give effect to the mandate of decree obtained pursuant to Compromise Petition as stated above. In this regard, we are of view, though a Sale Deed is executed on 12.02.2020, facts remained that Jdrs are bound to obtain Occupancy Certificate from competent authority and to that effect they have to make a genuine efforts to see that Occupancy Certificate has to be obtained and hand it over to these Dhrs. In other words, they are obliged to obtain such Occupancy Certificate from competent authority and now cannot contend upon execution of Sale Deed on 12.02.2020, all their obligations stand resolved or discharged as the case may be. In this regard Dhrs rightly pointed out such obligations agreed between parties in Agreement of Sale. We could see in clause-b on page-3 under Agreement dated 18.07.2008 vendors agreed to obtain all the necessary sanctions, licenses, consents, no objections and permissions and in clause-d Schedule-A property were approved by Subramanyapura Gram Panchayat, Bangalore and the vendors has completed construction of 'SRUSTHI BLOSSOMS' in all aspects in clause-4 of page-10 the right to uninterrupted usage of running water and electricity from and to the said building and to the Schedule-C Apartment through the sewers, drain and water courses, cables, pipes and wires which now are, or at any time hereafter be laid in under or passing through the said building or any part thereof subject to the Municipal and other laws governing supply of electricity and water. In clause-6 right to lay cable or wires through common walls or passage for radio, television telephone and other such installations, however, having due regard to the similar rights of other purchasers and the municipal and other laws as applicable and in page-13 not to use the Schedule-C apartments for any purposes prohibited by law, the corporation bye-laws and the bye-laws of the association/society/apex body that will be formed by the owners of the apartments in the said project. Thus all these terms and conditions have to be consider conjointly and not in isolation. They have agreed on 18.07.2008 to that effect and in our view though those clauses could not be find a place in compromise petition filed by parties on 23.01.2020, yet Jdrs are bound to discharge their obligations, as those clauses cannot be separated. In other words those clauses are inherent or silent as the case may be, which need not be mentioned in compromise petition. It is therefore, we found legal force in the contention of Dhrs represented by HUF that Jdrs are liable to obtain Occupancy Certificate from competent authority and these EAs are to be held maintainable to enforce such obligations agreed between parties under agreement, since the clauses in so far as these issues are concerned are merged not only with Comprise Petition but in the registered Sale Deeds executed in respect of the flat properties.
In the above such view of the matter, other contentions urged by Dhrs could not be examined in these EAs except on the issue regarding obtaining Occupancy Certificate by Jdrs and to which have to wait and co-operate with the Jdrs.
The contentions of counsel for Jdrs that Dhr no.1 has become court bird and has no independent work in hand and he always trying to file false cases against the public, on the basis of false and imaginary claims and to find support produced the copy of CC/740/2020 on the file of III Additional District Consumer Disputes Redressal Commission, Bengaluru dated 09.07.2021, where in dismissed his complaint without cost. We examined this complaint wherein found Dhr herein had filed complaint against one Mr.P.S.Yeshwanth and sought for rectification of deficiencies shown in the table and asked to pass attachment of movable, immovable assets relating to PSSM and HUF currently comprising OP Nos.1 to 3 which came to be dismissed and having been aggrieved preferred Revision Petition No.53/2021, also came to be dismissed on 26.07.2021 by this Commission. We have examined these two documents and observe herein, basing on the said order of the commissions, we cannot brand Dhr no.1 had become court bird, it is his right to raise consumer complaint or complaint or suit or raise disputes on disputes, which cannot be the ground to brand his a court bird as he has no work in his hands.
We found in these EA proceedings Ops/Jdrs are still to discharge their duties, followed by terms of the agreement which came to be merged with sale deeds and in the above such conclusion, this Commission, proceed to dispose of all pending I.As, Review application and EA in so far as issues except on the issue of Occupancy Certificate, as decided as observed in this order not only on IA filed seeking amendment of EAs by Dhrs but also the application filed under Section 50 of Consumer Protection Act, 2019 and directed Jdrs to make genuine efforts to get Occupancy Certificate from competent authority as early as possible to enable Dhrs to mutate their names in the BBMP records and to get it registered in all the necessary records of the competent authority to these flats and in this regard have to wait and co-operate the Jdrs.
Accordingly, these EA stands disposed off for the present with a liberty to rake up the cases six months after this day of order and in the mean time parties are directed to make all efforts to get the Occupancy Certificate, etc; and the parties each other to co-operate without raising any objections on any of the other issues. And if even after such efforts could not able to get Occupancy Certificate, Commission will decide on the issue at an appropriate stage which would occur only after six months as directed above.
Lady Member Judicial Member *GGH* [HON'BLE MR. JUSTICE Huluvadi G. Ramesh] PRESIDENT [HON'BLE MR. Krishnamurthy B.Sangannavar] JUDICIAL MEMBER [HON'BLE MRS. Smt. Divyashree.M] MEMBER