National Consumer Disputes Redressal
M/S. Samia International Builders (P) ... vs Neeta Rani on 3 November, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 630 OF 2015 (Against the Order dated 09/09/2014 in Complaint No. 149/2012 of the State Commission Delhi) 1. M/S. SAMIA INTERNATIONAL BUILDERS (P) LTD. THROUGH ITS DIRECTOR, MR. JAMIL A. KHAN, SAMIAH HOUSE, A-35, SECTOR-63. NOIDA-201305 UTTAR PRADESH ...........Appellant(s) Versus 1. NEETA RANI R/O. 118, VILLA ANANDAM NH 58 MEERUT ROAD, JAIN TUBE COMPANY COMPOUND GHAZIABAD-201003 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MR. PREM NARAIN, MEMBER For the Appellant : Mr. Rajiv Kumar Saxena, Adv. For the Respondent : Mr. Bhaskar Subramanian, Adv.
Dated : 03 Nov 2015 ORDER Appellant/Opposite Party has preferred this appeal against impugned order dated 09.09.2014 passed by State Commission, Delhi (for short, 'State Commission') in Complaint Case No.149 of 2012, vide which consumer complaint filed by Respondent/Complainant has been allowed.
2. Brief facts are, that Respondent filed complaint under Section 12 read with Section 17 of the Consumer Protection Act, 1986 (for short, 'Act') for refund of the amount deposited, compensation for harassment and costs of litigation against appellant on the allegations, that she and her husband--Sh. R.K. Aggarwal had booked four plots with appellant in the year 2006, under the scheme NRI City Rudrapur Project and deposited a sum of ₹23,97,984/-. Later on, it was found that there was no such project being developed by the appellant and she was cheated. However, on the advice of the appellant, respondent opted for another scheme in lieu of previous scheme as they had been left with no option. Accordingly, appellant allotted Rose Villa No.B-79, measuring 115 sq. Mts. Samia NRI Lake City Rudrapur, Uttrakhand under the construction linked plan. The total cost of the villa was ₹ 26 Lac and the amount already deposited by the respondent was to be adjusted in the cost of the villa. But instead of adjusting the entire amount of ₹23,97,984/-, appellant adjusted only a sum of ₹23,37,786/-. Appellant vide letter dated 01.11.2011 further demanded balance cost of ₹3,69,566/- for villa No.B-79. The respondents paid a sum of ₹3,69,566/- towards the balance cost of the villa through receipt nos. 1064,1065 and 8618. Even after making full payment towards cost of the villa, appellant did not hand over the possession of the allotted villa in its NRI Lake City Rudrapur Uttrakhand Project. Respondent ran from pillar to post to get possession of the aforesaid villa but in vain. In the process, respondent visited office of the appellant on 23.01.2012 and was surprised to know, that allotted villa No.B-79 Samia NRI Lake City Rudrapur, Uttrakhand was sold to some other person. Respondent sent a notice dated 07.02.2012 through her advocate but appellant failed to comply with the demand in her notice and failed to make refund. Thus, service provided by the appellant company were not only deficient but also amounted to indulgence in unfair trade practice. The respondent is not only entitled for refund of ₹27,67,550/- but also interest on this amount @ 18% p.a. from January, 2007 which comes to Rs.25,80,000/-. The respondents further claimed a sum of ₹3 lacs for harassment. Respondents were thus entitled for payment of ₹56,47,550/- from the appellant.
3. In its reply, appellant has stated that no allotment agreement was executed between them and the respondent. Further, appellant categorically denies having received a sum of ₹23,97,984/- alleged to have been deposited by the respondent in the year 2006-2007. However, it is stated by the appellant that it is not liable to make any payment as alleged, rather respondent has not complied the terms of the contract as desired by the appellant.
4. The State Commission allowed the complaint, vide its impugned order and passed following directions;
"a. The OP is directed to refund a sum of ₹27,07,352/- to the complainant along with interest @ 9% p.a. from the date of deposit till the date of actual payment.
b. The OP is further directed to pay a sum of ₹25,000/- towards compensation for mental pain, agony and harassment and also to pay ₹5,000/- towards costs."
5. Along with present appeal, an application seeking condonation of delay of 231 days has been filed. However as per office note, there is delay of 304 days in this case.
6. We have heard learned counsel for parties and gone through the record.
7. The impugned order was passed by the State Commission on 09.09.2014 and the free copy of the same was sent to the appellant by Registered Post on 12.09.2014. But appellant in the application for condonation of delay, has nowhere stated as to on which date it received the free copy of that order. Be that as it may, delay caused in fling the present appeal is due to the following reason;
"I. That the impugned order was communicated by the State Commission, to the appellant for the first time on ............ .
II. That the appellant had taken away the file of the present case from it's lawyer for consultation form the other lawyers and the same had been misplaced in the appellant's office due to being kept in improper place and after a tough search in the office the aforesaid file was found and the same had been handed over to the lawyer of the appellant for preparation and filing the aforesaid appeal before this Hon'ble National Commission therefore the delay of 231 days had been caused in filing the present appeal and there is no delay caused by the appellant in filing the aforesaid appeal deliberately."
8. The present appeal was filed on 12.08.2015. Thus, admittedly there is a delay of more than 300 days and not 231 days, as alleged by the appellant. It has nowhere been stated in the application, as on which date appellant took the file from its lawyer for consultation with other lawyer. Moreover, name of those lawyers have not been mentioned. Even otherwise, it is not stated where the office of appellant is situated and on which date the file was misplaced and when the same was found. Appellant has also not mentioned the name of persons, who have misplaced the file and later on found the same. The application in this regard is absolutely silent. Thus, no sufficient cause whatsoever has been shown by the appellant for seeking condonation of long delay of 300 days. Moreover, a valuable right has accrued in favour of respondent, which cannot be brushed aside lightly. It is well settled that "sufficient cause" for condoning the delay in each case is a question of fact.
9. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;
"It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant."
10. Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that;
"There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence."
11. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Supreme Court observed;
"We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition."
12. Hon'ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has laid down that;
"It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer Foras."
13. Decision of Anshul Aggarwal (Supra) has been reiterated in Cicily Kallarackal Vs. Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein Hon'ble Supreme Court observed;
"4. This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special Courts/Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute (s).
5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.
6. Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay."
14. Thus, no sufficient cause is made out for condoning the long delay of 300 days. Therefore, application for condonation of delay is liable to be dismissed.
15. Now coming to the merits of the case, the State Commission in its impugned order observed;
"14. The account statement of the villa attached with letter dated 01.11.2011 is a very valuable document. In Serial No.2 of the account statement, amount received have been shown as ₹23,37,786/- and balance amount has been shown as ₹ 3,69,566/-. The total payment made by the complainant to the OP comes to ₹23,37,786/- + ₹ 3,69,566/- = ₹27,07,352/-. The complainant agreed for allotment of Rose Villa, B-79 in Samia NRI Lake City Rudrapur, Uttarakhand. This villa was allotted to the complainant; total cost of the villa was ₹ 26 lac and the payment was construction linked. The OP through letter dated 01.11.2011 demanded payment of balance amount of ₹3,69,566/- which included payment of sales tax I.F.M.S. @ of ₹60/- per sq. fts. and electricity connection charges. The complainant filed payment receipts which proves the statement of complainant that entire balance amount of ₹3,69,566/- was paid.
15. Initially amount for project was deposited in the year 2006-2007 onwards till 2011 i.e. for five years. However, there was no substantial progress made in the project during this period. Full amount was realized from the complainant by the OP for allotment and delivery of possession of villa No.B-79. But, delivery of this villa was not given to the complainant. It has been alleged by the complainant that it was sold to someone else. The facts and evidence available on record leads us to hold that the OP was guilty for adopting unfair trade practice. Therefore, it would be in the larger interest of justice that amount deposited by the complainant with the OP be refunded along with the adequate interest, compensation and costs."
16. The appellant in the present case, is blowing hot and cold at the same time, as on the one hand in Para No.2 of its written statement on merits it is stated that;
"It is submitted that there was no any such type of allotment agreement that was existed between the complainant and OP."
17. While as per Para No.11 of Preliminary Objections of its written statement, appellant's case is that;
" The replying OP is not liable to be make any payment as alleged rather the complainant has not complied the terms of the contract as desired by the OP hence the present complaint is nothing but a bundle of false statement and is liable to be dismissed with heavy cost."
18. Thus, as per appellant's own case, contract has been executed between the parties and now appellant wants to wriggle out of the same.
19. Appellant/Builder in the present case "want to have the cake and eat it too", as admittedly it has received the entire consideration amount of ₹27,67,550/-(Rupees Twenty Seven Lacs Sixty Seven Thousand Five Hundred and Fifty only) toward the cost of Villa. Thus, appellant being the builder is enjoying the possession of the Villa as well as the entire amount paid by the respondent. On the other hand respondent after having paid the entire cost of Villa, are still empty handed.
20. Such type of unscrupulous act on the part of appellant/builder should be dealt with heavy hands, who after grabbing the money from the purchasers, enjoy and utilize their money but does not hand over the Villa, on one pretext or the other. Appellant wants respondent to run from one fora to other, so that appellant can go on enjoying respondent's money without any hindrance.
21. 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, go on filing meritless petitions in different foras. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the consumer of the fruits of the decree must be dealt with heavy hands. Unscrupulous builders like appellant who after taking entire cost does not perform their part of obligation, should not be spared. A strong message is required to be sent to such type of builders that this Commission is not helpless in such type of matters.
22. Now question arises for consideration is as to what should be the quantum of costs which should be imposed upon the appellant for dragging the respondent upto this fora when appellant 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 reasonings.
23. 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."
24. 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 ₹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".
25. 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 being barred by limitation as well as on merit with punitive damages of ₹1,00,000/-(Rupees One Lakh only). Out of this amount, a sum of Rs.50,000/-(Rupees Fifty Thousand only) be paid to the respondent.
26. Appellant is directed to deposit a sum of ₹50,000/-(Rupees Fifty Thousand only) by way of demand draft in the name of 'Consumer Legal Aid Account' of this Commission within four weeks from today and balance amount of ₹50,000/-(Rupees Fifty Thousand only) be deposited in the name of respondent by way of demand draft with this Commission from today.
27. Punitive damages awarded in favour of the respondent shall be paid to her only after expiry of period of appeal or revision preferred, if any.
28. Pending applications, if any stand disposed of.
29. List for compliance on 11th December, 2015 at 2.00 P.M./1`2 ......................J V.B. GUPTA PRESIDING MEMBER ...................... PREM NARAIN MEMBER