State Consumer Disputes Redressal Commission
1. Raj Kumar Goyal vs 1. Devi Chand Chauhan on 18 November, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 494 of 2013 Date of Institution : 15.11.2013 Date of Decision : 18/11/2013 1. Raj Kumar Goyal s/o Sh.Diwan Chand, r/o House No.47, Young Dwellers Society, Sector 49, Chandigarh. 2. Balkar Singh s/o Sh. Kundan Singh, resident of H. No. 989, Sector 69, Mohali. Appellants/Opposite Parties 5 and 3 V e r s u s 1. Devi Chand Chauhan s/o Sh.Rattan Chand, R/o 9/1, Mohalla Sidhpur-2, Teshil Dharamshala, District Kangra, H.P. ....Respondent No.1/complainant 2. The Nectar Co-operative House Building Society Ltd., Operating Office at SCO No. 208-209, Top Floor, Sector 34-A, Chandigarh, through its President Sudeep Singh Sabharwal, resident of #1285, Sector 34, Chandigarh. ....Respondent No.2/Opposite Party No.1 3. Smt. Kulwinder Kaur, Cashier, The Nectar Co-operative House Building Society Ltd., Operating Office at SCO No. 208-209, Top Floor, Sector 34-A, Chandigarh ....Respondent No.3/Opposite Party No.4 4. a) Official Liquidator- The Nector Co-Op House Building Society Ltd. C/o Assistant Registrar Cooperative Society, Punjab, 30 Bays Building Sector 17-C, Chandigarh. ....Respondent No.4/Opposite Party No.6(a) b) Official Liquidator, The Nector Co-op House Building Society Ltd. C/o Assistant Registrar Cooperative Society, Randhawa Road, Kharar. ....Respondent No.5/Opposite Party No.6(b) Appeal under Section 27-A of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
Argued by: Sh. Gaurav Tangri, Advocate for the appellants.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal under Section 27-A of the Consumer Protection Act, 1986, (hereinafter to be referred as the Act only), is directed against the order dated 23.10.2013, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, Opposite Parties No.3 and 5 (now the Appellants), were ordered to be summoned through warrants of arrest, under Section 27 of the Act, for non-compliance of the order dated 02.01.2012, passed in the Consumer Complaint bearing No.223 of 2011, titled as Shri Devi Chand Chauhan Vs. The Nector Co-operative House Building Society and Ors.
2. The facts, in brief, are that the Consumer Complaint bearing No.223 of 2011, titled as Shri Devi Chand Chauhan Vs. The Nector Co-operative House Building Society and Ors., was filed by Shri Devi Chand Chauhan, complainant, on 28.04.2011, under Section 12 of the Act, claiming various reliefs. The District Forum, vide its order dated 02.01.2012, accepted the complaint, in the following manner:-
"As a result of the above discussion, this complaint is accepted and OPs No.1 to 5 are directed to refund the deposited amount i.e. Rs.5,11,010/- to the complainant along with interest @ 12% p.a. from the respective date of its deposit till realization and Rs.20,000/- as costs of litigation within one month from the date of receipt of the certified copy..
3. Aggrieved against the order dated 02.01.2012, passed in the Consumer Complaint bearing No.223 of 2011, titled as Shri Devi Chand Chauhan Vs. The Nector Co-operative House Building Society and Ors., First Appeal No.111 of 2012, titled as Raj Kumar Goyal and another Vs. Devi Chand Chauhan and ors., was filed by Raj Kumar Goyal and Balkar Singh (appellants/Opposite Parties No.5 and 3), on 03.04.2012, alongwith which, an application for condonation of delay of 53 days, was filed. The First Appeal, aforesaid, was dismissed, being barred by time, as also, on merits, vide order dated 01.05.2012, by this Commission.
4. Still feeling aggrieved, Raj Kumar Goyal and Balkar Singh, Revision-Petitioners/Appellants/Opposite Parties No.3 and 5, filed Revision-Petition No.2646 of 2012, titled as Raj Kumar Goyal and Anr. Vs. Devi Chand Chauhan and Ors., in the National Consumer Disputes Redressal Commission, New Delhi, in which, Interim Application No. 02 of 2012, for stay was filed. The National Consumer Disputes Redressal Commission, New Delhi, passed the following order dated 17.08.2012, as under:-
Heard.
Issue notice of application for stay to the respondents returnable on 21.11.2012, the date already fixed.
In the meanwhile, operation of impugned order shall remain stayed subject to the petitioner`s depositing 50% of the awarded amount with the District Forum, within four weeks, in each case.
On receipt of the said amount, the District Forum shall put the same in Fixed Deposit Account in a nationalized Bank initially for a period of one year.
5. Since, Balkar Singh and Raj Kumar Goyal, appellants/Judgment Debtors No.3 and 5/Opposite Parties No.3 and 5, did not deposit 50% of the awarded amount, with the District Forum, within four weeks, as per the order dated 17.08.2012, the District Forum, came to the conclusion, that the stay order stood automatically vacated.
6. Since, the order dated 02.01.2012, passed by the District Forum, and duly upheld by this Commission, had not been intentionally and willfully complied with, by Judgment Debtors No. 1 to 5/Opposite Parties No.1 to 5, Execution Application/Criminal Petition No.98 of 2012, under Section 27 of the Act, was filed by the Decree Holder/complainant, which was admitted on 25.07.2012, and Judgment Debtors No. 1 to 5/Opposite Parties No.1 to 5, were ordered to be summoned for 21.08.2012.
7. On 21.08.2012, Sh. T.S. Khaira, Counsel for Opposite Parties No.3 and 5 (now the appellants), filed his memo of appearance, and prayed for time, to comply with the order dated 02.01.2012, which was allowed, and the remaining Judgment Debtors/Opposite Parties No.1, 2 and 4, were ordered to be summoned through bailable warrants, for 11.09.2012. On 11.09.2012, Sh. T.S. Khaira, Counsel for Opposite Parties No.3 and 5 (now the appellants), placed on record, a copy of the stay order dated 17.08.2012, extracted above, passed by the National Consumer Disputes Redressal Commission, New Delhi.
8. Thereafter, the District Forum, passed the order dated 27.09.2012, as under:-
This order will dispose of the application moved by OPs 2 & 3 / applicants praying therein that he be permitted to deposit a sum of Rs.81208/- as per the directions given by the Honble National Commission.
Vide order dated 17.08.2012 of the Honble National Commission execution of the impugned order has been stayed subject to deposit of 50% of the awarded amount within four weeks. The certified copy of the order was received by the applicants on 07.09.2012 as is evident from the stamp of the office on the copy of the order itself.
The application for the deposit of the 50% of the awarded amount (vide pay order bearing No.550088, dated 18.09.2012 for Rs.40604/-, drawn on Indian Bank and No.947578, dated 18.09.2012 for Rs.40604/-, drawn on SBOP) was moved by the applicants on 18.09.2012 i.e. within four weeks. The amount deposited by the applicants does not appear to be 50% of the awarded amount.
Without prejudice to rights of the complainant which have arisen on account of the deficient payment, if any, the applicants are permitted to deposit the pay orders. The pay orders be deposited in the shape of FDR, in the nationalized bank as per the direction of the Honble National Commission. File be consigned to record room. Copy of this order be placed on record of the Execution Petition file, if any.
Certified copy of this order be communicated to the parties free of cost. After compliance file be consigned.
9. Since, according to the Decree Holder/ Complainant, the amount had not been deposited, as per the order dated 17.08.2012, passed by the National Consumer Disputes Redressal Commission, New Delhi, calculation sheet was sought. The District Forum, thus, came to the conclusion that, as per the order of the National Consumer Disputes Redressal Commission, New Delhi, dated 17.08.2012, Judgment Debtors No.3 and 5/Opposite Parties No.3 and 5 (now the appellants), were required to deposit 50% of the awarded amount, which came to be Rs.4,42,058.96Ps., and since they had deposited only 50% of their share, and not 50% of the awarded amount, there was non-compliance of the same (order dated 17.08.2012).
10. Accordingly, vide order dated 23.11.2012, it was directed that the Judgment Debtors/Opposite Parties No.3 and 5 (now appellants) be produced before the District Forum, on 13.12.2012, to show cause, why they should not be punished, under Section 27 of the Act. Bailable warrants of the remaining Judgment Debtors/Opposite Parties No.1,2 and 4 were also ordered to be issued. Thereafter, on 28.02.2013 Mr. Raj Kumar Goyal, Judgment Debtor No.5/Opposite Party No.5/Appellant No.1 and Balkar Singh, Judgment Debtor No.3/Opposite Party No.3/Appellant No.2, made statements, that they will comply with the order, within four weeks, from that date, failing which necessary action against them, as per law, be taken. However, on the other hand, on 28.02.2013, the Counsel for Judgment Debtors No.3 and 5/Opposite Parties No.3 and 5, stated that Judgment Debtors No.3 and 5/Opposite Parties No.3 and 5, had deposited their share, and the remaining amount should be recovered from other Opposite Parties. Thereafter, vide order dated 07.03.2013, the District Forum directed that Show Cause notice, containing specific accusations, under Section 27 of the Act, be served upon Judgment Debtors No.1 to 5/Opposite Parties No.1 to 5. Ultimately, the order dated 23.10.2013 impugned, was passed, by the District Forum, as under:-
OP-5 has appeared and an application has been filed for stay of the present execution application qua the applicants (OPs 3 & 5). OP-3 Sh. Balkar Singh is not appearing despite the issuance of warrant of arrest. So far as OP-5 is concerned a show cause notice be served upon Sh. R.K. Goyal and he may furnish his reply if any to that show cause notice. The application for stay of the present execution application at this stage is not maintainable and the same is dismissed.
Show cause notice under Section 27 of the Consumer Protection Act, 1986 has been served upon OP-5 and he has requested for sometime for submitting his reply.
Warrants of arrest of the remaining OPs have been received back unexecuted. OP-3 Sh. Balkar Singh is well aware of the proceedings, because the order dated 7th March was passed in the presence of his advocate.
On 09.04.2013, learned counsel for the OP-5 had stated that he had informed about the order to the OPs and thereafter OPs 3 & 5 were ordered to be summoned through warrants of arrest. Sh. Gunjan Rish, Advocate is also appearing on behalf of OP-3, but still OP-3 has not been produced. Warrants of arrest of all the remaining OPs be issued as per previous order and sent through S.S.P for service for 01.11.2013. OP-5 shall also file his reply to the Show Cause Notice on that date for taking further proceedings in accordance with law.
11. Feeling aggrieved, the instant appeal, under Section 27-A, has been filed by the appellants/Judgment Debtors No.3 and 5/Opposite Parties No.3 and 5.
12. We have heard the Counsel for the appellants/Judgment Debtors No.3 and 5/Opposite Parties No.3 and 5, at the preliminary stage, and, have gone through the record of the case, carefully.
13. The Counsel for the appellants/Judgment Debtors No.3 and 5/Opposite Parties No.3 and 5, submitted that the appellants/Judgment Debtors No.3 and 5/Opposite Parties No.3 and 5, were neither held jointly and severally, liable to deposit the amount, awarded vide order dated 02.01.2012, by the District Forum, nor by this Commission, while deciding First Appeal No.111 of 2012. He further submitted that even the National Consumer Disputes Redressal Commission, New Delhi, vide order dated 17.08.2012, did not direct the Appellants/Judgment Debtor No.3 and 5/Opposite Parties No.3 and 5, to deposit 50% of the awarded amount, jointly and severally, and, as such, they (Appellants/Judgment Debtors No.3 and 5/Opposite Parties No.3 and 5) were only required to deposit 50% amount of their share. He further submitted that the Appellants/Judgment Debtors No.3 and 5/Opposite Parties No.3 and 5, have already deposited 50% amount of their share, as per the order of the National Consumer Disputes Redressal Commission, New Delhi, dated 17.08.2012, and, as such, Criminal Petition/Execution Application No.98 of 2012, filed against them, stood satisfied. He further submitted that the District Forum did not apply its judicial mind, to the facts and circumstances of the case, and also to the order dated 17.08.2012 of the National Consumer Disputes Redressal Commission, New Delhi. He further submitted that, on the other hand, knowing fully well that the order dated 17.08.2012, passed by the National Consumer Disputes Redressal Commission, New Delhi, had been complied with, by the Appellants/Judgment Debtors No.3 and 5/Opposite Parties No.3 and 5, by depositing 50% amount of their share, the District Forum, issued Show Cause notice. He further submitted that the remaining amount, as per the order of the National Consumer Disputes Redressal Commission, New Delhi, was required to be deposited by the remaining Judgment Debtors No.1, 2 and 4/Opposite Parties No.1, 2 and 4, and their liability could not be fastened upon the Appellants/Judgment Debtors No.3 and 5/Opposite Parties No.3 and 5. He further submitted that orders dated 10.05.2011, in other Revision Petitions, copies whereof are Annexures A-10 and A-11, were passed by the National Consumer Disputes Redressal Commission, New Delhi, wherein the Appellants/Judgment Debtors No.3 and 5/Opposite Parties No.3 and 5, also deposited 50% of the amount of their share. He further submitted that parity was required to be made. He further submitted that the order dated 23.10.2013, passed by the District Forum, being illegal and invalid, is liable be set aside.
14. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the Appellants/Judgment Debtors No.3 and 5/Opposite Parties No.3 and 5, and the record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons, to be recorded hereinafter. Undisputedly, the Consumer Complaint bearing No.223 of 2011, titled as Shri Devi Chand Chauhan Vs. The Nector Co-operative House Building Society and Ors., was accepted by the District Forum, vide order dated 02.01.2012. There is also, no dispute, about the factum, that First Appeal No.111 of 2012, was filed by Raj Kumar Goyal and Balkar Singh, (appellants/Opposite Parties No.5 and 3), on 03.04.2012, alongwith which, an application for condonation of delay of 53 days, was filed, which was dismissed, being barred by time, as also, on merits, vide order dated 01.05.2012, by this Commission. Still feeling aggrieved, Raj Kumar Goyal and Balkar Singh, Revision-Petitioners/Appellants/Opposite Parties No.3 and 5, filed Revision Petition No.2646 of 2012, titled as Raj Kumar Goyal and Anr. Vs. Devi Chand Chauhan and Ors., in the National Consumer Disputes Redressal Commission, New Delhi, in which Interim Application No.02 of 2012 for stay was filed, wherein the, order dated 17.08.2012, extracted above, directing them to deposit 50% of the awarded amount, within four weeks, was passed. Neither the District Forum, while accepting the Consumer Complaint bearing No.223 of 2011, nor this Commission, while dismissing First Appeal No.111 of 2012, instituted on 03.04.2012, directed that the liability of the Appellants/Judgment Debtors No.3 and 5/Opposite Parties No.3 and 5, would be only to the extent of their share. Even the National Consumer Disputes Redressal Commission, New Delhi, in its order dated 17.08.2012, passed in Revision Petition No.2646 of 2012, titled as Raj Kumar Goyal and Anr. Vs. Devi Chand Chauhan and Ors., directed that the Appellants/Judgment Debtor No.3 and 5/Opposite Parties No.3 and 5, should deposit 50% of the awarded amount. Had it been the intention of the National Consumer Disputes Redressal Commission, New Delhi, that the Revision Petitioners (now the appellants) therein should deposit only their 50% share of the awarded amount, it would have certainly specified the same, in clear-cut terms, in its order dated 17.08.2012.
15. It may be stated here, that Shri Devi Chand Chauhan, complainant, deposited the amount of Rs.5,11,010/- with the Nector Cooperative House Building Society, through Sh. Sudeep Singh Sabharwal, President of the said Society, Eng. Balkar Singh, Sectary of the said Society, Smt. Kulwinder Kaur, Cashier of the said Society and Sh. Raj Kumar Goyal, Vice President of the said Society, for the allotment of a house/flat, but it was never constructed. He, ultimately, filed the Consumer Complaint bearing No.223 of 2011, for the refund of amount. The District Forum held Opposite Parties No.1 to 5, including the appellants, referred to above, liable, to refund the said amount, alongwith interest, and cost of litigation. The Appellants/Judgment Debtors No.3 and 5/Opposite Parties No.3 and 5 were required to comply with the order of the National Consumer Disputes Redressal Commission, New Delhi, vide which the stay was granted, by depositing 50% of the awarded amount, by the District Forum. The Appellants/Judgment Debtors No. No.3 and 5/Opposite Parties No.3 and 5 could not bifurcate their liability, of their own volition, saying that they were only liable to pay 50% of their share.
16. When a third party deposits the amount, with the builder or a Company, through its various office bearers, then the Company and the Officer bearers are liable to refund the amount, to the third party, in case of deficiency, in rendering service. Once the order of refund is made, the complainant may recover the entire amount, from one office bearer, or all the office bearers. No office bearer, once an order is passed, can say that he was only liable to pay his share, by bifurcating the liability of his own. The interse liability of the office bearers is their concern, but the third party cannot suffer at their hands. The District Forum was, thus, right, in holding that the Appellants/Judgment Debtors No.3 and 5/Opposite Parties No.3 and 5, were required to deposit 50% of the awarded amount, as directed by the National Consumer Disputes Redressal Commission, New Delhi, and since they failed to comply with the same, Opposite Party No.5 upon whom the Show Cause notice was served, was directed to file reply on 01.11.2013, whereas the remaining Judgment Debtors/Opposite Parties No.1 to 4, were ordered to be summoned through bailable warrants, for that date. Since the order passed by the National Consumer Disputes Redressal Commission, New Delhi was not fully complied with, by the appellants/Judgment Debtors No.3 and 5/Opposite Parties No.3 and 5, the District Forum was also right, in passing the order dated 23.10.2013, referred to above.
17. Thus, the conduct the appellants/Judgment Debtors No.3 and 5/Opposite Parties No.3 and 5, could be said to be contumacious. They defied the order of the District Forum, passed in the Consumer Complaint, which was upheld in the First Appeal, as also the order dated 17.08.2012, passed by the National Consumer Disputes Redressal Commission, New Delhi, with impunity. The hard earned money, to the tune of Rs.5,11,010/-, deposited by the complainant/Decree Holder, towards part price of the said house/flat, was usurped by the Judgment Debtors. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, the Apex Court observed as under:-
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
18. One can really imagine the plight of a person, who deposited his hard earned money, to the tune of Rs.5,11,010/-, way back in 2006, but till the mid of November 2013, was not refunded the same and even order dated 17.08.2012, passed by the National Consumer Disputes Redressal Commission, New Delhi, was not complied with. Under these circumstances, in our considered opinion, the District Forum was right, in passing the order impugned.
19. No other point, was urged, by the Counsel for the appellants/Judgment Debtors No.3 and 5/Opposite Parties No.3 and 5.
20. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of record, and law, on the point, does not suffer from any illegality or perversity
21. For the reasons recorded above, the appeal under Section 27-A of the Act, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
22. Certified copies of this order, be sent to the parties, free of charge, for further proceedings.
23. The District Forum record, alongwith a certified copy of this order, be sent back to it, posthaste.
24. The file be consigned to Record Room, after due completion Pronounced.
November 18, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg