National Consumer Disputes Redressal
Emaar Mgf Land Ltd. vs Parvinder Singh & Anr. on 16 February, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1168 OF 2014 (Against the Order dated 19/09/2014 in Complaint No. 74/2014 of the State Commission Chandigarh) 1. EMAAR MGF LAND LTD. ECE HOUSE, 28, KASTURBA GANDHI MARG, NEW DELHI-1100001 ...........Appellant(s) Versus 1. PARVINDER SINGH & ANR. PROPRIETOR, M/S. 21ST CENTURY SIGNS, R/O. B-2/112/FF, JANAKPURI, NEW DELHI-110058 2. M/S. 21ST CENTURY SIGNS REGD., OFFICE.: B-2/112, FF, JANAKPURI, NEW DELHI-110058 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MR. SURESH CHANDRA, MEMBER For the Appellant : Mr. Aditya Narain, Advocate with Ms. Anushree Narain, Advocate and Mr. Arnav Narain, Advocate For the Respondent :
Dated : 16 Feb 2015 ORDER Present appeal has been filed under Section 19 of the Consumer Protection Act,1986(for short, 'Áct') by Appellant/Opposite Party, challenging order dated 19.09.2014 passed by State Consumer Disputes Redressal Commission, U.T., Chandigarh(for short, 'State Commission') in Consumer Complaint No.74 of 2014.
2. Facts in brief are that Respondent No.1/Complainant No.1 is Proprietor of Respondent No.2/Complainant No.2, was/is in need of his own residential house where he could live peacefully. Since, it was difficult to purchase a residential property in New Delhi, because of high prices of property, he decided to purchase a residential plot, in Mohali, Punjab, where he could stay with his family after retirement. Being induced by the representative of the appellant and assured by the appellant, that possession of the plot, would be handed over within 36 months from the date of allotment, respondent no.1, booked a plot in appellant's Project 'Mohali Plots' by depositing Rs.10,35,000/-, as booking amount on 23.09.2006.
3. It is further stated that respondent was allotted plot no.204, measuring 300 square yards, in Augusta Greens, Sector 109, Mohali Hills, Mohali, @Rs.11,500/- per square yard, vide provisional allotment letter dated 05.05.2007. The total sale consideration of the said plot was to the tune of Rs.38,81,250/-,which also included Rs.4,31,250/- towards Preferential Location Charges. In addition, respondents were also required to pay a sum of Rs.1,69,104/-, towards External Development Charges. Later on, respondents vide letter dated 15.06.2007, made a request to relocate them to some other unit, in any of its projects in Mohali Hills, as they were not interested in preferential location. As such, appellant issued revised allotment letter dated 29.10.2007, in respect of new plot No.324, measuring 300 square yards, in Pinewood Park, Sector 108, Mohali Hills, Mohali'. The basic sale price of the said plot was Rs.34,50,000/ and External Development Charges of Rs.1,47,249/-. Thus, total sale consideration of Rs.35,97,249/-, was required to be paid. Plot Buyer`s Agreement dated 04.07.2007, in respect of Plot No.324 was executed between the parties, at Chandigarh.
4. Thereafter, as per installment payment plan, respondents, deposited the entire sale consideration. Even the amount of Rs.2,53,168/- towards delayed payment interest, was also paid by the respondents.
5. It was further stated that according to Clause 8 of the Plot Buyer`s Agreement dated 04.07.2007, appellant was to hand over physical possession of the residential plot, within a period of two years, and not later than three years, from the date of execution agreement. It was also mentioned in Clause 8 of the said Agreement, that in case appellant failed to deliver possession of the plot in question, within the stipulated period, it was liable to pay penalty/compensation, to the respondents @ Rs.50 (Rupees Fifty only), per square yard per month, for the period of delay. Thus, appellant was to deliver possession of the residential plot, to the respondents latest by 04.07.2010. The possession was not offered to the respondents by 04.07.2010.
6. It was further stated that respondent no.1 visited the site but was surprised to see that there was no development. Even the basic amenities, such as roads, sewage etc. etc. were not made available at the site. On the other hand, an email dated 24.01.2014 was received from the appellant, wherein it offered relocation of plot to the respondents. However, respondents did not accept the said offer.
7. It was stated that appellant collected huge amount towards the price of plot, by making a false promise, that physical possession thereof shall be handed over within the maximum period of 3 years from 04.07.2007, but it did not abide by its commitment. Thus, amount of Rs.38,50,417/-deposited by the respondents, towards the sale price of the plot plus delayed payment interest, was utilized by the appellant, as a result whereof respondents were caused huge financial loss.
8. The aforesaid acts, on the part of appellant, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. Hence, complaint under Section 17 of the Act was filed, directing the appellant to refund the amount of Rs.38,50,417/- alongwith interest @18% P.A., from the respective dates of deposits, till realization; pay compensation to the tune of Rs.30 lacs, on account of deficiency in rendering, mental agony and harassment; besides cost of litigation, to the tune of Rs.33,000/-.
9. Appellant in its written version has stated, that as plot in question had been booked, in the name of M/s 21st Century Signs-Respondent No.2, a Company, it did not fall within the definition of a consumer. On this ground alone, complaint was liable to be rejected. It was further pleaded that since respondent no.1 is residing at Delhi, and carrying on his business there, as such question of having his residence by constructing the house on the plot in question by him, did not at all arise. It was further pleaded that complainants did not fall within the definition of consumers, as defined under Section 2 (1) (d) of the Act, as the plot had been purchased by them with an intention to earn profits, after selling the same as and when there is escalation in prices.
10. It was admitted by the appellant that it had received the entire sale consideration, towards price of plot, as also delayed payment interest. Execution of the Plot Buyer`s Agreement dated 04.07.2007 between the parties was also admitted. It was also admitted that possession of the plot in question, could not be delivered to the respondents till the date of filing the Consumer Complaint or even till date. 11. It was further stated that plot had been shown to be falling in revenue rastas and acquisition proceedings had been initiated. The said acquisition proceedings had been challenged, by way of filing Civil Writ Petition No.4212 of 2014, titled as Lakhmeer Singh and Others Vs. State of Punjab and Others, wherein, a Division Bench of Punjab and Haryana High Court ordered the Parties to maintain status-quo. As such, possession of the plot could not be delivered to respondents. It was further stated that appellant had been ready to relocate the respondents to another plot, in the same project, possession whereof would be delivered to them at the earliest, but they refused to accept the same. It was further stated, that in case of any delay, beyond the time frame mentioned in the Plot Buyer`s Agreement, interest of the respondents were duly safeguarded and they were only entitled to penalty/ compensation @ Rs.50/- (Rupees Fifty only) per square yard, per month for the period of delay, beyond three years from the date of execution of the agreement and not to any additional compensation. It was further stated that neither there was any deficiency, in rendering service on the part of the appellant nor it indulged into unfair trade practice.
12. Both parties produced their respective evidence before the State Commission, which vide its impugned order partly accepted the complaint with costs and passed following directions;
The Opposite Party is directed to refund the amount of Rs. 38,50,417/- to the complainants, alongwith interest @ 12% per annum, from the respective dates of deposits onwards, within 45 days, from the date of receipt of a certified copy of this order.
The Opposite Party is further directed to pay compensation, in the sum of Rs.1,75,000/-, for causing mental agony, physical harassment to Sh. Parvinder Singh, complainant No.1, Proprietor of M/s 21st Century`s Signs, as also escalation in prices of the real estate, within 45 days, from the date of receipt of a certified copy of this order.
The Opposite Party is further directed to pay cost of litigation, to the tune of Rs.20,000/-, to the complainants.
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/-."
13. We have heard the learned counsel for the appellant and gone through the record as well as the written submissions.
14. It is submitted by learned counsel for the appellant, that plot was booked for commercial purposes and not for residential purpose. Moreover, the same was not booked by respondent no.1 in his individual capacity but in his capacity of sole proprietor of the proprietorship concern, carrying on business of manufacture and sale of sign boards and advertising goods.
15. Other submission made by learned counsel is, that respondent has been carrying on business and commercial activity in Delhi wants to purchase a residential property in Moahli, which goes on to show that booking was done for commercial/business/investment purposes and as such respondent is not a consumer.
16. It is further submitted that since Writ Petition has been dismissed by High Court of Punjab, appellant is ready to deliver the possession of the said plot. Further, there is no provision in the agreement for respondents to terminate it and seeks refund. Lastly, respondents have nowhere alleged about unfair trade practices on the part of the appellant and ingredients of unfair trade practices are totally absent in this case.
17. In support, learned counsel has relied upon following judgments;
(i) Jagmittar Sain Bhagat and Others Vs. Director, Health Services, Haryana and Ors, (2013) 10 Supreme Court Cases 136;
(ii) Cheema Engineering Services Vs. Rajan Singh, (1997) 1 Supreme Court Cases 131;
(iii) Birla Technologies Ltd. Vs. Neutral Glass and Allied Industries Ltd, (2011) I SSC 525 and
(iv) M/s Max Infra (India) Ltd. Vs. M/s Ashok Leyland Ltd, (Consumer Complaint No.93 of 2014) decided by this Commission on 22.5.2014.
18. The State Commission in its impugned order has observed;
" 14. The first question, that falls for consideration, is, as to whether, the complainants fell within the definition of consumers, as defined by Section 2(1) (d) (ii) of the Act, or not. No doubt, an objection was taken by the Opposite Party, to the effect that since the plot, in question, was booked by M/s 21st Century`s Signs, a firm running its business at Delhi, it did not fall within the definition of a consumer. The submission made by the Opposite Party, in this regard, does not appear to be correct. It may be stated here that M/s 21st Century`s Signs, complainant No.2, which booked the residential plot, with the Opposite Party, is a proprietorship concern. Complainant No.1, is the sole proprietorship thereof. Not only this, a rent agreement dated 01.07.2009 was produced by complainant No.1, according to which he was described as the Proprietor of M/s 21st Century`s Signs. Copy of the licence deed dated 01.06.2004 of some premises was also placed, on record, according to which, M/s 21st Century`s Signs, through its Proprietor Mr. Parvinder Singh, complainant No.1, was shown as licencee. It may be stated here that the proprietorship concern is neither a Partnership Firm nor a Private Limited Company. The sole proprietor thereof is its owner. Under these circumstances, it could be said that it was Parvinder Singh, Proprietor of M/s 21st Century`s Signs, who booked the residential plot. In paragraph number 3 of the complaint, it was in clear-cut terms, stated by complainant No.1, that he was in need of own residential property, where he could live peacefully. It was further stated that it was difficult for him to purchase a residential plot, in New Delhi, because of higher rate of property there. Therefore, he decided to accept the proposal of the Opposite Party, to purchase a residential plot, in Mohali Hills, Mohali, where he could stay alongwith his family, after retirement. This clearly goes to show that Parvinder Singh, Proprietor of M/s 21st Century`s Signs, purchased the plot, in question, from the Opposite Party, for his and for the residential purpose of his family. There is nothing, on the record, that Parvinder Singh, Proprietor of M/s 21st Century`s Signs, is a property dealer, and deals in the sale and purchase of property. No evidence was also produced by the Opposite Party, to prove that the complainants owned a number of other residential properties, in the tricity, and, as such, the residential plot, in question, was purchased by them, by way of investment, with a view to resell the same, as and when, there was escalation in the prices of real estate. As per the Plot Buyer`s Agreement dated 04.07.2007, Annexure C-7, it was a residential plot, which was sold by the Opposite Party. Parvinder Singh, Proprietor of M/s 21st Century`s Signs, could only raise construction of residential house thereon. No evidence was also produced by the Opposite Party that Parvinder Singh, complainant No.1, who is the sole Proprietor of complainant No.2, purchased the plot, in question, for commercial purpose. Parvinder Singh, sole Proprietor of complainant No.2, hired the services of the Opposite Party, for the purchase of a fully developed residential plot. Complainant No.1, who is the sole Proprietor of complainant no.2 falls within the definition of a consumer, as defined by Section 2(1)(d)(ii) of the Act. An objection, taken by the Opposite Party, to the contrary, in its written statement, therefore, being devoid of merit, is rejected.
The State Commission further observed;
24. The next question, that falls for consideration, is, as to within which period, the delivery of possession of the plot, in question, was to be given to the complainants. According to Clause 8 of Plot Buyer`s Agreement dated 04.07.2007, Annexure C-7, subject to force majeure conditions and reasons, beyond the control of the Opposite Party, it was to deliver physical possession of the plot, in question, within a period of two years, but not later than three years, from the date of execution of the same (Agreement). It is, thus, evident from this Clause, that the Opposite Party, was required to deliver the possession of plot, in question, in favour of the complainants, within three years, from the date of execution of the Plot Buyer`s Agreement dated 04.07.2007, Annexure C-7. Admittedly, the possession of plot, in question, was not delivered to the complainants, by the stipulated date, or even by the time, the complaint was filed. According to the Opposite Party, the plot, in dispute, falls in the Revenue Rasta, which was acquired by the Punjab Government. According to the Opposite Party, acquisition of Revenue Rastas had been challenged by way of filing Civil Writ Petition No.4212 of 2014, titled as Lakhmeer Singh and Others Vs. State of Punjab and Others, wherein, a Division Bench of the Punjab and Haryana High Court, at Chandigarh, ordered the Parties, to maintain status-quo, and the same (Civil Writ Petition), being still pending, possession of the plot, in question, could not be delivered to the complainants. It may be stated here, that the said Civil Writ Petition was filed in the year 2014, whereas, the stipulated date of handing over possession of the said plot, was 04.07.2010. Therefore, no help can be drawn, by the Counsel for the Opposite Party, from Civil Writ Petition No.4212 of 2014, titled as Lakhmeer Singh and Others, Vs. State of Punjab and Others, aforesaid, as far as the delay, in handing over possession of the plot, in question, for the period from 04.07.2010 (the stipulated date) till 2014, when the Civil Writ Petition, aforesaid was filed, is concerned. The total sale consideration of the plot, as per the Plot Buyer`s Agreement dated 04.07.2007, Annexure C-7, was Rs.35,97,249/-.Admittedly,the sale consideration of the plot, in question, as also the delayed payment interest, in the manner, referred to above, had already been paid, by the time of filing the complaint, but the possession of plot, was not delivered, in favour of the complainants, by the stipulated date or till the aforesaid acquisition was challenged. Now, in respect of the plot, allotted to the complainants, there is status-quo, in pursuance of the order passed by the Punjab and Haryana High Court, in Civil Writ Petition No.4212 of 2014, titled as Lakhmeer Singh and Others Vs. State of Punjab and Others. Therefore, on account of status-quo order aforesaid, possession of the plot cannot be delivered. By making a misleading statement, that the possession of plot, was to be delivered within three years, from the date of execution of Plot Buyer`s Agreement dated 04.07.2007, Annexure C-7, and by not abiding by the commitments, made by the Opposite Party, it (Opposite Party) was not only deficient, in rendering service, but also indulged into unfair trade practice.
25. No doubt, it was also submitted by the Counsel for the Opposite Party, that time was not the essence of contract. It may be stated here, that perusal of Clause 8 of the Plot Buyer`s Agreement dated 4.7.2007, Annexure C-7, clearly revealed that the Opposite Party was to hand over physical possession of the residential plot, within a period of 2 years, and not later than three years, from the date of execution of the same, i.e. latest by 04.07.2010. Even after the expiry of more than six years, from the date of allotment of plot, and more than about three and a half years, from the stipulated date, till the acquisition, aforesaid was challenged, the possession thereof, was not delivered to the complainants. The time was, thus, unequivocally made the essence of contract. The submission of the Counsel for the Opposite Party, thus, being devoid of merit, must fail, and the same stands rejected.
26. The next question, that falls for consideration, is, as to whether, the complainants are entitled to the refund of amount of Rs.38,50,417/- deposited by them, towards the price of plot, in question, including delayed payment interest, in the circumstances, referred to above. The Opposite Party, failed to deliver possession of the plot, in question, allotted in favour of the complainants, by the stipulated date or even thereafter. As stated above, even they are not in a position to deliver the possession of plot, in question, in future also, on account of the reasons, referred to above. It, therefore, had no right, to retain the hard earned money of the complainants, in the sum of Rs.38,50,417/- deposited towards the price of plot, in question, including the delayed payment interest, without rendering them any service. In our considered opinion, the complainants are entitled to the refund of amount of Rs.38,50,417/- deposited by them, towards the price of plot, in question, including the delayed payment charges. By not refunding the amount, aforesaid, deposited by the complainants, the Opposite Party was deficient, in rendering service.
27. 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. Admittedly, the amount of Rs.38,50,417/- towards the price of plot, in question, including the delayed payment interest, was deposited by the complainants. Complainant No.1, being the sole proprietor of complainant No.2, was deprived of his hard earned money, on the basis of misleading information, given by the Opposite Party, that it would hand over the legal physical possession of the residential plot, by 04.07.2010, but it failed to do so. As stated above, now the said plot is not in existence, on account of the reasons, referred to above. 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 the same been invested in some business, they would have earned handsome returns thereon. In case of delay, in deposit of installment(s), the Opposite Party was charging interest @15% P.A. (compounded), as is evident from Clause 3 of the Plot Buyer`s Agreement dated 04.07.2007, Annexure C-7. The complainants are entitled to interest, on the amount deposited. 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.
28. The next question, that falls for consideration, is, as to whether, complainant No.1 being the sole proprietor of complainant No.2 is entitled to compensation, under Section 14(1)(d) of the Act, on account of mental agony, physical harassment and injury caused to him, for a long number of years, by not delivering the physical possession of plot, or refund of the amount deposited. Parvinder Singh, Proprietor of M/s 21st Century`s Signs, is, thus, entitled to compensation. Compensation, to the tune of Rs.1,75,000/-, on account of mental agony and physical harassment, caused to Sh.Parvinder Singh, Proprietor of M/s 21st Century`s Signs, by the Opposite Party and also due to escalation in the prices of real estate, as he would not be able to purchase the plot, at the same rate now, at which he was allotted the same, if granted, shall be reasonable, adequate and fair. Complainant No.1, proprietor of complainant No.2 is, thus, held entitled to compensation, in the sum of Rs.1,75,000/-, as indicated above."
19. It is an admitted fact, that Buyer's Agreement was executed between the parties on 04.07.2007. As per Clause 8 of this Agreement, delivery of possession of plot in question was to be given by the appellant to the respondent, within a period of 2 years but not later than 3 years, from the date of execution of the Agreement. Clause 8 read as under;
"Subject to Force Majeure conditions and reasons beyond the control of the Company, the Company shall endeavour to deliver possession of the Plot to the Allottee within a period of 2(Two) years from the date of execution of this Agreement, but not later than 3 (Three) years. In the event that the possession of the Plot is likely to be delayed for reason of any force majeure event or any other reason beyond the control of the Company including government strike or due to civil commotion or by reason of war or enemy action or earthquake or any act of God or if non-delivery is as a result of any act, notice, order, rule or notification of the Govt. and any other public or Competent Authority or for any reason beyond the control of the Company, then in any of the aforesaid events, the Company shall upon notice claiming force majeure to the Allottee be entitled to such extension of time till the force majeure event persists or the reason beyond the control of the Company within a maximum period of 3 (Three) years from the date of execution of this Agreement, the Company shall be liable to pay to the Allottee, a penalty of the sum of Rs.50/-(Rupees Fifty only) per sq. yds per month for such period of delay beyond 3 (Three) years from the date of execution of this Agreement."
20. It is not in dispute, that till the date of filing of the consumer complaint before the State Commission in the year 2014, the appellant had not delivered the possession of plot, in terms of Buyer's Agreement.
21. As per appellant's case, the possession of plot in question could not be handed over to the respondents within the prescribed period, since there was stay order in the Writ Petition pending before Punjab & Haryana High Court. However, there is nothing on record to show as to whether present appellant was a party in that litigation or not. Be that as it may, now appellant in this appeal has stated, that aforesaid Writ Petition has been dismissed by Punjab and Haryana High Court, vide order dated 01.10.2014 and now there is no status-quo order in respect of the said plot of the respondent. Now, the appellant is in position to hand over the possession of the same. Interestingly, appellant has not given any explanation at all as to why it did not hand over the possession of plot to the respondenet from 04.7.2010 till the filing of the Writ Petition in 2014. Therefore, by not handing over the possession of the plot in question to the respondents within the prescribed period, deficiency in service on the part of appellant is writ large in this case.
22. Moreover, appellant had never made the respondent aware about this fact, that plot in question is situated in the land which is under acquisition. On the other hand, appellant had assured the respondent that it had all the necessary approval to develop and promote the residential plots to the intending purchasers. In this regard, Clauses 'B' and 'C' of the Buyer's Agreement are reproduced as under;
" B. The Chief Administrator, Punjab Urban Planning & Development Authority, Government of Punjab ("PUDA") granted approval to the Company for setting up of an Integrated Township SAS Nagar, Mohali, District Mohali, Punjab under the Industrial Policy 2003. Pursuant thereto the Land Use of the Said Land was changed from agricultural land to Residential/Group Housing, Institutional and Commercial by the Department of Housing and Urban Development, Government of Punjab. The Company entered into an Agreement with the Govt. of Punjab wherein the Government agreed to provide relief and concessions to the Company for implementation of the Integrated Township with Special Education and Wellness Zone Project at Mohali, District Mohali, Punjab under the Industrial Policy 2003. PUDA has granted approval of the layout plans for a Mega Housing Project to the Company under Section 44(2) of the Punjab Apartment and Property Regulation Act, 19995 ("Punjab Apartment Act") the housing Project of the Company has been exempted from the provisions of the Punjab Apartment Act, 1995.
C. In terms of all approvals and exemptions as accorded to the Company by the Punjab Government, the Company is entitled to develop and promote residential plots on the Said Land and make allotment of the plots to the intending purchasers in the residential colony proposed to be developed by the Company which is more particularly known as "Mohali Hills" situated in Sector 105, 108 and 109 Mohali, District Mohali, Punjab( "Project")."
23. Therefore, under these circumstances, we have no hesitation in holding that appellant had given false information to the respondents while entering into the Buyer's Agreement, which certainly amounts to an unfair trade practice.
24. As far as this issue, as to whether respondent is a 'Consumer' or not, respondents in Para 3 of the complaint have averred;
"3. That the complainant No.1 was/is need of his own residential property where he could live peacefully. However, it was difficult for the complainant No.1 to purchase a residential property in New Delhi because of high prices of property in New Delhi. Therefore, complainant No.1 decided to accept the proposal of OP to purchase a residential plot in project 'Mohali Plots' at Mohali Hills in Mohali, where he could stay peacefully with his family after retirement."
25. Above averments made in the complaint, goes on to show that the plot in question was booked for residential purposes only. No evidence was produced by the appellant to prove that respondent owned a number of other residential properties or plot in question had been purchased by him for the purpose of investment, with a view to resell the same.
26. None of the judgments (supra), cited by learned counsel, are applicable to the facts of the present case.
27. The appellant in the present case "wants to have the cake and eat it too", as admittedly after having received the entire cost of the plot, it is sitting over the hard earned money of the respondent. In addition, the plot is also all with the appellant. On the other hand, respondents after having paid entire consideration amount of the plot, are still empty handed.
28. Such type of unscrupulous act on the part of the appellant should be dealt with heavy hand, who after grabbing the hard earned money from the consumers go on enjoy and utilize their money, but do not hand over the plot, on one pretext or the other. Appellant wants the respondents to run from one fora to other, so that appellant can go on enjoying the respondents' money without any hindrance.
29. 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 pursuing the litigation, having no merit and legal force at all. Equity demand that such unscrupulous litigants whose only aim and object is to deprive the consumer the fruits of the decree, must be dealt with heavy hands. Unscrupulous developer like appellant who after taking 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 developers that this Commission is not helpless in such type of matters.
30. Now question arise for consideration is as to what should be the quantum of costs which should be imposed upon the appellant for pursuing this litigation when it 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 is based on sound reasonings.
31. 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."
32. 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".
33. 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.2,50,000/-(Rupees Two Lacs Fifty Thousand only.
34 . Appellant is directed to deposit the punitive damages of Rs.2,50,000/-(Rupees Two Lacs Fifty Thousand only) by way of demand draft in the name of 'Consumer Legal Aid Account' of this Commission, within four weeks from today.
35. In case, appellant fails to deposit the aforesaid amount within the prescribed period, then it shall also be liable to pay interest @ 9% p.a. till realization.
36. Pending applications, if any, stand disposed of.
37. List for compliance on 20th March, 2015.
......................J V.B. GUPTA PRESIDING MEMBER ...................... SURESH CHANDRA MEMBER