National Consumer Disputes Redressal
Emaar Mgf Land Ltd. vs Mr. Lalit Arora on 6 July, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI REVISION PETITION NO.1619 OF 2012 alongwith I.A. Nos. 1 and 2 of 2011 (From the order dated 4.4.2011 in Appeal No.362/2011 of the State Commission, UT Chandigarh) Emaar MGF Land Ltd. SCO 120-122, First Floor Sector-17, Chandigarh Emaar MGF Land Ltd. ECE House 28, Kasturba Gandhi Marg, New Delhi 110 001 ..Petitioners Versus Mr. Lalit Arora S/o Shri Vir Bhan Arora H. No. 778, Sector-8, Panchkula, Haryana Respondent BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Petitioners: ` Mr. H.L. Tikku, Sr. Advocate with Mr. Shubhankar Sen Gupta, Advocate Pronounced on : 6th July, 2012 ORDER
PER JUSTICE V.B. GUPTA, PRESIDING MEMBER State Consumer Disputes Redressal Commission, Chandigarh (for short as State Commission) vide its order dated 4.4.2012 dismissed the appeal of the petitioner, challenging order dated 21.10.2011 passed by Consumer Disputes Redressal Forum-1, Chandigarh (for short as District Forum).
2. Facts in brief, are that the respondent/complainant was allotted Plot No.516 measuring 300 Sq. yards in Mohali Hills. Prior to allotment, respondent filled Advance Registration Form, and also enclosed a cheque as basic price @ Rs.10,000/- per sq. yards + E.D.C., as applicable per sq. yard as per the prevailing rate on allotment of PLC, if applicable. It was stated that the same was accepted by the petitioners/opposite parties. At the time of issuance of allotment letter/Plot Buyer`s Agreement dated 20.06.2007, mentioned the rate of plot at Rs.11,500/- per sq. yard instead of Rs.10,000/- per sq. yard, which was against the terms and condition of the Advance Registration Form. Respondent approached petitioners number of times, and requested them not to charge the price of the plot @ Rs.11,500/-. Petitioners assured the respondent that the excess amount, would be adjusted in future installments, but they failed to do so. It was further stated that respondent had deposited Rs.35,21,604/- against the due installments till 17.03.2009. It was further stated that when respondent visited the project site, it was found, that no development work like roads, sewerage, electricity poles and other basic amenities, had been carried out. As per agreement dated 20.06.2007, the project was to be completed within two years, which period expired on 19.06.2009. It was further stated that neither the possession of the plot was handed over to the respondent by that date, or even thereafter, nor respondent was compensated for the delay in delivering the possession. A legal notice dated 27.01.2011, was served upon the petitioners, but to no avail. The aforesaid acts of the petitioners amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. Accordingly, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), claiming various reliefs, was filed.
3. Petitioners put in appearance through their Counsel, and took a number of dates/adjournments for filing reply and evidence, subject to payment of costs but failed do so. Ultimately, none appeared on their behalf and they were proceeded against exparte.
4. The District Forum, vide its order dated 21.10.2011, allowed the complaint of the respondent and passed the following order;
As a result of the above discussion, the complaint is allowed and the OPs are directed to pay interest @ 12% p.a. over amount of Rs.35,21,604/- deposited by the complainant with the OPs from the respective date of deposit, till the date of handing over the possession of the plot in question. The OPs shall also pay Rs.25,000/- as compensation for causing mental and physical harassment to the complainant and adopting unfair trade practice, alongwith with litigation costs assessed at Rs.10,000/-.
5. Aggrieved by above order, petitioners filed appeal before the State Commission, which dismissed their appeal, vide impugned order.
6. We have heard the learned counsel for the petitioners and gone have through the record.
7. At the outset, it may be pointed out that at the time of filing of this revision petition, an application seeking exemption from filing the certified copy of the order was filed by the petitioners.
8. Though, this revision was filed on 19.4.2012, but till date, petitioners have not filed certified copy of the impugned order. Thus, on this short ground alone, the revision petition is liable to be dismissed.
9. On merits, it has been contended by learned counsel that it is settled law that parties to contract are bound by the terms thereof and courts cannot substitute and/or introduce new terms therein, to which parties never agreed. It is submitted that clause 8 of the Plot Buyer Agreement dated 20.06.2007 takes care of the eventuality of late delivery of possession of plot. Therefore, any claim for compensation due to late delivery of possession of plot and grant thereof is against the expressed and agreed terms of contact, therefore is bad and illegal. According to clause 8 of the said agreement, if Petitioner Company fails to deliver the possession of the plot within a maximum period of 3 years from the date of execution of the agreement, the company shall be liable to pay to the allottee, a penalty of the sum of Rs.50/- per sq. yard per month for such period of delay beyond 3 years from the date of execution of the agreement. As such, award of interest @ 12% P.A. on the sum of Rs.35,21,604/- by the impugned order, is liable to be set aside.
10. It is an admitted fact that petitioners had put their appearance through their counsel, before the District Forum and took number of dates/adjournment for filing reply and evidence subject to payment of costs but failed to do so. Ultimately, none appeared and as such petitioners were proceeded ex parte. Thus, petitioners had no defence before the District Forum. As such, averments made by respondent in its complaint as well as evidence led by him had gone unrubutted. Moreover, a valuable legal right has accrued to the respondent. In this regard, State Commission in the impugned order observed;
10. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the parties and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons to be recorded hereinafter. The perusal of the District Forum record, clearly goes to show that on 11.05.2011, the first date of hearing, in the complaint, Sh.Ashish Sarup, Advocate, appeared on behalf of the Opposite Parties, and filed memorandum of appearance. The complaint was adjourned to 26.05.2011, for filing vakalatnama, reply and evidence, by way of affidavit, on behalf of the Opposite Parties. On 26.05.2011, vakalatnama was filed by Sh.Ashish Sarup, Advocate, on behalf of the Opposite Parties. He further sought date for filing reply and evidence, which was granted, subject to costs of Rs.300/-, and the complaint was adjourned to 28.06.2011. On 28.06.2011, costs were not paid. Again a date for filing reply and evidence, was sought, which was granted subject to payment of additional costs of Rs.500/- and the complaint was adjourned to 12.07.2011, for filing reply and evidence, on behalf of the Opposite Parties and for payment of costs i.e. Rs.800/-. On 12.07.2011, costs of Rs.800/- were paid, but reply and evidence, were not filed. An adjournment was sought, which was granted subject to further payment of costs of Rs.500/-, , as well as for filing of reply and evidence, on behalf of the Opposite Parties. The complaint was adjourned to 02.08.2011. On 02.08.2011, none appeared on behalf of the Opposite Parties, and, accordingly, they were proceeded against ex parte. The complaint was adjourned to 19.08.2011, for filing ex parte evidence by the complainant, if any, and oral arguments. On 19.08.2011, an application was moved by the Counsel for the Opposite Parties, for setting aside the ex parte order dated 02.08.2011. The Counsel for the complainant, stated that he had no objection, as a result whereof, the ex parte order was set aside, subject to payment of costs of Rs.500/-, which was paid, on that date itself, and previous costs of Rs.500/- were also paid. The complaint was adjourned to 01.09.2011, for filing of reply and evidence, on behalf of the Opposite Parties. On 19.09.2011, none appeared, on behalf of the Opposite Parties, and, accordingly, they were proceeded against ex parte, and the complaint was adjourned to 28.09.2011, for filing ex parte evidence, if any, and, oral arguments by the complainant. On 28.09.2011, arguments were heard and the complaint was adjourned to 21.10.2011 for orders. On 21.10.2011, the complaint was accepted, in the manner referred to, in the opening paragraph of the instant order.
11. The perusal of the aforesaid order sheets clearly goes to show that sufficient opportunity was granted to the Opposite Parties, to file their written version, as also, the evidence, by way of affidavits, but they failed to do so. The conduct of the Opposite Parties, as is evident from the aforesaid order sheets was throughout contumacious. They intentionally and deliberately, wasted the time of the District Forum, by seeking a number of dates for filing reply and evidence, by way of affidavits, but they failed to do so. Ultimately, they absented, as a result whereof, they were proceeded against ex parte. Therefore, it could not be said that the Opposite Parties were condemned unheard. The District Forum was only required to afford a reasonable opportunity, to the Opposite Parties, to file reply, and lead evidence, by way of affidavits. Since a number of opportunities were granted to the Opposite Parties, as is evident from the aforesaid order sheets, but they failed to avail of the same, as a result whereof they were proceeded against exparte. Under these circumstances, it could not be said that the Opposite Parties were condemned unheard. The submission of the Counsel for the appellants, thus, being without merit, must fail, and the same stands rejected.
12. The District Forum, was right, in coming to the conclusion, that, no doubt, in the Advance Registration Form, the rate of the plot, in question was mentioned @Rs.10,000/- per sq. yard + EDC as applicable. In the allotment letter, which was issued in favour of the complainant, the rate of the plot, in question, was mentioned as Rs.11,500/- per sq. yard. Not only this, in the Plot Buyer`s Agreement, at page 31/15 of the District Forum file, to which the complainant was a signatory, the price of the plot, in question, was mentioned as Rs.11,500/- per sq. yards. It means that the complainant consented to the price of the plot as Rs.11,500/- per square yard. Since the bilateral agreement, referred to above, was executed, between the parties, and the complainant signed the same, with eyes wide open, at this stage, he could not wriggle out of the terms and conditions thereof. The findings of the District Forum, that the Opposite Parties, allotted the plot, in question, in favour of the complainant @Rs.11,500/- per sq. yard, as per the terms and conditions of the agreement, executed between the parties, therefore, being correct are affirmed.
13. The District Forum was right, in coming to the conclusion, that since the possession of the plot, in question, after carrying out the complete development work, was not handed over to the complainant, by 19.06.2009, (the promised date as per agreement, referred to above) and the amount of Rs.35,21,604/-, deposited by him, was illegally and improperly, retained by the Opposite Parties, for a sufficiently longer period, he was required to be compensated. The District Forum, was, thus, right in coming to the conclusion, that the complainant was entitled to interest @12% p.a. on the deposited amount of Rs.35,21,604/-, from the respective dates of deposit, till handing over the possession of the plot, in question, after carrying out the complete development work.
14. The District Forum took cognizance of the fact that the complainant underwent tremendous mental agony and physical harassment, on account of non-delivery of possession of the plot, in question. Keeping in view, the totality of facts and circumstances of the case, the District Forum, in our considered opinion, was right, in awarding compensation to the tune of Rs.25,000/- to the complainant, which could be said to be reasonable, adequate, fair and just. The findings of the District Forum, in this regard, being correct are affirmed.
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11. It is well settled that under Section 21(b) of the Act, scope of revisional jurisdiction is very limited. This Commission can only interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegalily or with material irregularity.
12. In view of the concurrent findings of the facts given by foras below, no jurisdiction or legal error has been shown to us to call for interference in the exercise of power under Section 21 (b) of the Act.
13. Moreover, the foras below have given cogent reasons in their orders which do not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction.
14. 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. 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.
15. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 S C 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.
16. Now question arises for consideration is as to what should be the quantum of costs which should be imposed upon the petitioners for dragging respondent upto this fora when petitioners 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 reasoning.
17. 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.
18. Accordingly, present revision petition is not maintainable being devoid of any merits. The same has been filed just to waste the time of this Commission. Hence, the revision petition stands dismissed with punitive costs of Rs.50,000/- (Rupees fifty thousand only).
19. Petitioners are accordingly directed to deposit the costs by way of cross cheque for the sum of Rs.50,000/-
(Rupees fifty thousand only) in the name of Consumer Legal Aid Account within four weeks from today.
20. Pending application, if any, stand dismissed.
21. In case, costs are not deposited within the prescribed period, then petitioners shall be liable to pay interest @ 9% p.a., till realization.
22. List on 24.8.2012 for compliance.
...J (V.B. GUPTA) PRESIDING MEMBER ...
(VINAY KUMAR) MEMBER Sg.