National Consumer Disputes Redressal
Dilip Vasantrao Kadam vs Anil Baburao Acharekar on 9 July, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2360 OF 2010 (Against the Order dated 25/03/2010 in Appeal No. 1398/2009 of the State Commission Maharastra) 1. DILIP VASANTRAO KADAM J-1, 2nd Floor, Room No. 9, Yugantak Complex, Sukapur, Palidevad, Tal: Panvel Raigad Maharashtra ...........Petitioner(s) Versus 1. ANIL BABURAO ACHAREKAR E-203, New Rachana Housing Society, Chakki Naka, Tisgaon Road, Kalyan (East) Thane Maharashtra ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner : Mr.Parven Chaturvedi and Ms.Jyoti Chaturvedi, Advs. with petitioner in person For the Respondent : Ms. Surekha Raman, Adv.
Dated : 09 Jul 2015 ORDER
Petitioner/Complainant has preferred this revision under Section 21(b) of the Consumer Protection Act, 1986 (for short, 'Act') against impugned order dated 25.3.2010 passed by Consumer Disputes Redressal Commission, Maharashtra State, Mumbai(for short, 'State Commission') in (First Appeal No.1398 of 2009).
2. Initially, petitioner has filed a consumer complaint before Consumer Disputes Redressal Forum, Raigad (for short, 'Consumer Forum') against Respondent/Opposite Party seeking the following reliefs;
" 1) To pass the order to the respondent to handover the possession of residential flat as well as shop within 1 month.
2) Due to the mistake of respondent the complainant is kept away from taking possession from December,2005, hence the order may pass to the respondent to pay 14% interest from December, 2005 on ₹ 6,25,000/- received from the complainant.
3) The complainant has lost ₹ 41,370/- for interest till the end of 2006-2007 and the respondent is only responsible for such a loss, hence the said amount be given by the respondent.
4) The respondent should pay ₹30,000/- to the complainant made for house rent due to the negligent of respondent.
5) The respondent should pay ₹ 4,000/- for the expenditure incurred by complainant for file the complaint and attendance for hearing.
6) The Respondent should pay ₹ 1,00,000/- to the complainant for mental disturbed."
3. Respondent contested the complaint and filed its written statement.
4. The Consumer Forum vide order dated 31.10.2009, allowed the complaint and passed following order;
"Opp. Party shall obey the following directions within period of 45 days;
To handover the possession of flat and shop no. 3 to the complainant as mentioned in the complaint with all amenities. At the time handing over the possession as decided in the agreement the opp. Party to receive the balance amounti.e.(₹ 7,98,000/- minus ₹ 6,25,000/-) from the complainant and to give a receipt in that behalf.
Opp. Party is hereby directed to give possession of property to the complainant after giving intimation writing of 10 days in advance.
Opp. Party shall pay an amount of ₹ 25,000/- for physical and mental harassment to the complainant, failing which will carry an interest @ 5% p.a.
Opp. Party shall pay an amount of ₹ 5000/- towards the cost of litigation to the complainant."
5. Aggrieved by the order of the Consumer Forum, respondent filed an appeal before the State Commission. In appeal, both parties settled their disputes. Accordingly, appeal was partly allowed by the State Commission vide its impugned order.
6. Now petitioner has challenged that settlement order passed by the State Commission, before us.
7. We have heard the learned counsel for the parties and gone through the record as well as the written submissions placed on record by both parties. .
8. It is submitted by learned counsel for the petitioner, that petitioner never desired to have modification or alteration in the District Forum's order and has instructed his counsel accordingly. Though, it is correct that petitioner was present in the State Commission in person, but he could not understand English language and was depending fully upon his counsel Sh. Manoj Mhatre, Adv. who was representing him. The petitioner never gave any consent as stated in the impugned order. It was due to the communication gap, coupled with some misunderstanding, consent of petitioner had been wrongly recorded in the impugned order. Further, no compromise was recording in writing. As per decision of Hon'ble Supreme Court in Gurpreet Singh Vs. Chatur Bhuj Goel, AIR 1998 Supreme Court, 400, " the Court must insist that compromise be reduced in writing and signed by the parties."
9. Therefore, the State Commission ought to have insisted for the compromise to be reduced in writing, which it failed to do so. Hence, the impugned order is liable to be set aside.
10. On the other hand, it has been submitted by learned counsel for the respondent, that in the facts and circumstances of the case and particularly in view of the impugned order being a consent order, the petitioner is estopped from invoking the revisional jurisdiction of this Commission. The present revision ought not to be entertained on this aground alone.
11. Further, it is settled law, that a consent order cannot and ought not to be permitted to be challenged especially in view of the decision of Hon'ble Supreme Court, in Byram Pestonji Gariwala Vs. Union Bank of India (1992)1 SCC 31, where the Hon'ble Supreme Court observed inter alia that;
" A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the court at the end of a long drawn out fight. A compromise decree creates an estoppel by judgment."
12. It is further submitted, that once a party engages an Advocate, the party confers all necessary authority upon the Advocate to appear, act and plead on his behalf, including the power to compromise, adjust, settle or consent to any agreement or resolution of the matter. The petitioner by engaging an Advocate had entrusted him with not only express, but also implied authority to act on behalf of himself and no separate authority is needed to compromise or withdraw a proceedings. In the present case, the State Commission had passed the order dated 25.3.2010 after obtaining the consent of both parties in the proceedings viz. the petitioner and the respondent. It is also clear from the unambiguous words in the said order, that petitioner was present and personally gave his consent to the concessions, which were made by his Advocate Shri Manoj Mhatre on his behalf. Despite being present in person before the State Commission at the time of the hearing, petitioner has moved this Commission by way of the present revision petition, on the false premise that he has not consented to the said order, since he could not " fully" understand the proceedings in English language. Hence, there is no merit in this petition.
13. The impugned order passed by the State Commission is reproduced as under;
Quorum: Justice Mr.S.B. Mhase, Hon'ble President
Mr.S.R.Khanzode, Hon'ble Judicial Member
Mr.Dhanraj Khamatkar, Hon'ble Member
Present: Mr.V.D.Kalke-Advocate for the appellant.
Mr.Manoj Mhatre-Advocatefor the respondent
Respondent in person
: ORAL ORDER:
Per Justice Mr.S.B.Mhase,Hon'ble President
1. This appeal is directed against the order dated 31/10/2009 decided by District Consumer Forum, Raigad in consumer complaint no.71/2007.This appeal can be disposed of finally at the admission stage in view of the concession given by both the sides on instructions of their respective parties. The Ld. counsel for the respondent is present along with respondent. Ld. counsel for the appellant states that he has all instructions from the appellant and he is making all the statements as per instructions of the appellant and, therefore, we record following statements and concession agreed to by both the parties:-
2. Both the parties agrees that so far as residential flat is concerned, there is no dispute between the appellant and respondent and the appellant is ready and willing to deliver possession of residential flat as agreed to between the parties on payment of ₹30,000/- by the respondent. Both the parties states that the dispute was relating to the shop no.3 between the parties. However, they have settled the dispute in respect of shop no.3 as follows:-
3. Respondent has paid an amount of ₹2,09,000/-in January 2006 to the appellant towards the price of the said shop and the appellant acknowledges receipt of the said amount. It is agreed between the parties that this amount of ₹2,09,000/- is to be returned by the appellant within a period of 8 weeks along with interest @ 18% p.a. from January 2006 till the date of actual payment.
4. Area of the shop no.3 is 250 sq.ft. and it was agreed that the said shop was to be purchased by the respondent @ Rs.1300/- per sq.ft. Therefore price of the said shop was ₹ 3,25,000/-.Said shop has been disposed of by the appellant to third party few days earlier to the decision of the District Consumer Forum namely on 08/10/2009 for an amount of ₹ 6 lakhs. Therefore, it is agreed between the parties that the appellant shall pay an amount of ₹ 6 lakhs minus ₹3,25,000/- = ₹ 2,75,000/- to the respondent within a period of 8 weeks. If this amount is not paid within a period of 8 weeks then appellant shall pay interest over this amount from 08/10/2009 i.e. date of sale of the said shop to third party till realization of the full amount. Respondent agreed to give up claim in respect of mental agony as granted by the District Consumer Forum of ₹ 25,000/- and cost of the litigation. Thus, parties have settled their disputes and, accordingly, the statements were made before us and we have recorded the statement in presence of both the advocates and the respondent who is present. We have recorded these statements of the appellant since Ld. counsel for the appellant specifically stated that he has instructions to make such statements and appellant is suffering from heart ailment and unable to attend the State Commission. All these statements made by the advocate are accepted and, therefore, we pass following order:-
ORDER
1. Appeal is partly allowed.
2. Order of the District Consumer Forum is modified as under:-
3. The appellant shall pay an amount of ₹2,09,000/- within a period of 8 weeks along with interest @ 18% p.a. from January 2006 till the date of actual payment as stated in para 3 of this order.
4. Appellant shall pay an amount ₹2,75,000/- to the respondent within a period of 8 weeks. If this amount is not paid within a period of 8 weeks then appellant shall pay interest over this amount from 08/10/2009 till realization of the full amount as stated in para 4 of this order.
5. Clause nos.3 & 4 of operative part of impugned order are quashed and set aside.
6. Copies of the order be furnished to the parties."
14. It is an admitted fact, that petitioner as well as his counsel were present before the State Commission, when impugned order was passed. The impugned order runs into three pages and State Commission, has recorded in detail the submissions made by both parties.
15. Further, it would be interesting to observe, that on the one hand, petitioner states that he could not understand English language fully and was depending upon his advocate, Mr. Manoj Mhatre who was representing him, while on the other hand petitioner himself admits, that it transpired during the proceedings, that respondent had illegally created third party rights over the Shop No.3, which was originally sold to him. In this regard, averments made in para no.11 of Revision Petition are quite relevant, which read as under;
"11. That Petitioner states that the Petitioner cannot understand English language fully and the Petitioner was depending upon the Advocate Shri Manoj Mhatre who was representing the Petitioner. The Petitioner states that it transpired during the proceedings that the Respondent has illegally created third party rights over the Shop No.3 which was originally sold to the Petitioner and the Respondent had entered into an Agreement for Sale for the said Shop No.3 without consent of the Petitioner or without even cancelling the transaction entered into with the Petitioner by the Respondent."
16. Thus, as per petitioner's own admission he was fully aware of the proceedings which were being recorded before the State Commission. Now, it does not lie in his mouth to take different stand.
17. Be that as it may, the impugned order was passed on 25.3.2010, whereas present revision petition had been filed only on 25.6.2010. There is no explanation as to why petitioner had taken three months for filing the same.
18. Furthermore, petitioner wrote to his previous counsel Mr. Manoj Mhatre, Adv. for the first time only on 17.5.2010 about the alleged ambiguity in the impugned order, that is, after about two months of the passing of the impugned order. In response, Mr. Mhatre, the Advocate vide his letter dated 24.5.2010 responded to the allegations made by the petitioner. The Advocate in its reply inter aila stated;
"7. I say that on 25.3.2010 when the appeal was called out you were present in the Hon State Commission. The Hon Commission firstly heard the Ld. Advocate appearing for the appellant builder and noted his submissions and more particularly the submission that the Hon'ble District Forum Alibaug could not have passed the order dated 31.1.2009 thereby directing the said Builder to hand over the possession of the shop in question as the same was sold during the pendency of the complaint. Upon this the Hon State Commission inquired with me that as to what would be reasonable in the circumstances, for the Hon State Commission was framing its mind about the order to be passed in the Appeal. I immediately turned back to you as you were standing right behind me and informed you about the Commission anxiety to know about your mind. You were understanding about what was going on in the Hon Commission and Hon Commission explained to you the difficulty in handing over the possession of the said shop as the appellant had already sold the same to the third party, and any order cannot be passed in absence of any third party thereby effecting his rights adversely and that too without hearing him. The Hon Commission also inquired with you directly that it would be just, fair and proper to hand over to you possession of the flat and further direct the appellant to refund you the money paid by you for the purchase of the shop. Upon this suggestion from the Hon Commission you yourself consented for the taking possession of the flat and seeking refund of the money for the shop foreseeing the practical difficulty. And it is pertinent to note here that and I would like to specifically mention that the Ld. Advocate advanced his arguments in Marathi Language, even I submitted my submissions in Marathi Language and the Hon President of the State Commission also inquired with you in Marathi language, admittedly the Language you understand. And accordingly it is only after you accorded your consent the order dated 25.3.2010 was passed."
19. Thus, admittedly all the proceedings before the State Commission took place in the presence of the petitioner as well as his counsel. It was only thereafter, that impugned order was passed by the State Commission. Now the petitioner cannot wriggle out of the same and introduce a new story.
20. Accordingly, we have no hesitation in holding, that petitioner has caused grave aspersions on the functioning of the State Commission, as well as on his previous counsel, by filing the present revision petition.
21. However, it is not that petitioner has indulged in such type of practice for first time only before the State Commission. Even before this Commission, after filing the present revision petition, when it came up for hearing on 13.08.2010, then one Mr. Subodh B. Gokhale, Adv. has appeared on behalf of petitioner. On that date, after arguing for some time before the then Bench of this Commission, Mr. Gokhale stated that "revision petition may be dismissed as withdrawn."
22. This Commission dismissed the revision petition as such.
23. After dismissal of his revision petition, petitioner filed an application seeking review of order dated 13.08.2010 passed by this Commission. In the review application, petitioner took stand, that he had not authorized his counsel for making above such statement before this Commission.
24. This speaks volume about the conduct of the petitioner. It appears, that only intention of the petitioner is to cause grave aspersions upon his advocates as well as on the entire judicial system.
25. It is well settled, that when a litigant approaches any judicial fora with malafide intentions and file frivolous petitions, then he/she is not entitled to the relief sought for. Reference in this regard can usefully be made to the observations made by Hon'ble Supreme Court in Dalip Singh Vs. State of U.P (2010) 2 SCC 114, where it observed ;
"1. For many centuries Indian Society cherished two basic values of life i.e. "satya" (truth) and "ahinsa" (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vague in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of falsehood, misrepresentation and suppression of facts in the court proceedings.
2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."
26. Thus, after scanning through the entire record, we have no hesitation in holding, that State Commission rightly passed the impugned order in the presence of the petitioner as well as his counsel. The present revision petition is most bogus and frivolous one. Moreover, it is nothing but gross abuse of the process of law. Therefore, we dismiss this petition with punitive damages of Rs.50,000/-(Rupees Fifty Thousand only).
27. Petitioner is directed to deposit above the aforesaid punitive damages by way of demand draft in the name of "Consumer Legal Aid Account" within four weeks from today. In case, petitioner fails to deposit the same within the prescribed period, then he shall be liable to pay interest @ 9% p.a. till realization.
28. List on 28th August, 2015 for compliance.28/0-
......................J V.B. GUPTA PRESIDING MEMBER ...................... SURESH CHANDRA MEMBER