State Consumer Disputes Redressal Commission
Sushil Siwach vs Shalimar Estates Pvt. Ltd., on 23 June, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Execution Application No. : 21 of 2014 Date of Institution : 28.03.2014 Date of Decision : 23/06/2014 Sushil Siwach son of Sh. Raghuvir Siwach, resident of House No.2189, Sector 35-C, Chandigarh Decree Holder/Complainant Versus Shalimar Estates Pvt. Ltd., Shalimar Mega Mall, Site No.5, Sector 5, Panchkula, through its Managing Director, Sh. R.K. Aggarwal. ..Judgment Debtor/Opposite Party Execution Application under Section 27 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh. J.P.S. Ahluwalia, Advocate for the Decree Holder.
Sh. Arun Kumar, Advocate for the Judgment Debtor.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This Execution Application, under Section 27 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), has been filed by the Decree Holder/complainant, for enforcement of the order dated 13.12.2012, passed, by this Commission, in the Consumer Complaint, bearing No.42 of 2012, titled as Sushil Siwach Vs. Shalimar Estates (P) Ltd.
2. Consumer Complaint No.42 of 2012, titled as Sushil Siwach Vs. Shalimar Estates (P) Ltd., was instituted by the complainant, on 07.08.2012, claiming various reliefs. Vide order dated 13.12.2012, the said Consumer Complaint, was partly accepted with costs, in the following manner:-
For the reasons, recorded above, the complaint must succeed, and the same is, accordingly, partly accepted with costs of Rs.10,000/-, in the following terms:-
(i) The Opposite Party is directed to refund Rs.23,30,000/-, (Rs. twenty three lacs thirty thousand) deposited by the complainant, with interest @ 15% p.a. from the respective dates of deposits till realization ;
(ii)The Opposite Party is also directed to pay compensation, in the sum of Rs.one lac, for causing mental agony and physical harassment, to the complainant, by neither handing over possession of the showroom, by the committed date, nor refunding the amount ;
(iii)The aforesaid directions shall be complied with by the Opposite Party within a period of 40 days, from the date of receipt of a copy of the order, failing which, it shall be liable to pay the amount mentioned in clause(i) above with interest @ 18% P.A., from the dates, indicated therein, and interest @ 15% P.A. on the amount, mentioned in clause(ii) above, from the date of filing the complaint, besides payment of costs of Rs.10,000/-
3. Feeling aggrieved, the Judgment Debtor/ Opposite Party, filed First Appeal No.58 of 2013, titled as . Shalimar Estates Pvt. Ltd., Vs Sushil Siwach, which was admitted, by the National Consumer Disputes Redressal Commission, New Delhi. Vide order dated 26.02.2013, the National Consumer Disputes Redressal Commission, New Delhi, in the aforesaid appeal, subject to deposit of the entire decreetal amount, alongwith interest, with it (National Commission), within four weeks, stayed the operation of the order dated 13.12.2012. It was further made clear, that, in case, the amount was not deposited, within the stipulated period, the stay granted shall stand vacated automatically. Thereafter, an application for extension of time, was filed, by the appellant/Judgment Debtor/Opposite Party, before the National Consumer Disputes Redressal Commission, New Delhi. The National Consumer Disputes Redressal Commission, New Delhi, vide order dated 31.05.2013, extended the time, for deposit of amount, till 15.06.2013. Again, vide order dated 12.07.2013, by way of final opportunity, one week`s time was allowed to the appellant/Judgment Debtor, to deposit the decreetal amount, but it was made clear that no further extension shall be permitted, in the case, and stay shall automatically stand vacated.
4. Again the appellant/Judgment Debtor, moved I.A. 4730 of 2013, for extension of time, in First Appeal No.58 of 2013, which was declined by the National Consumer Disputes Redressal Commission, New Delhi, vide order dated 02.08.2013.
5. Feeling aggrieved, against the order dated 02.08.2013, aforesaid, of the National Consumer Disputes Redressal Commission, New Delhi, Special Leave Petition No.29197 of 2013, was filed by the Judgment Debtor/Opposite Party, in the Hon`ble Supreme Court of India, which was dismissed, vide order dated 27.09.2013.
6. Since, the order dated 13.12.2012, passed, in the Consumer Complaint, bearing No.42 of 2012, by this Commission, was intentionally and willfully, not complied with, by the Judgment Debtor/Opposite Party, Execution Application No.08 of 2013, under Section 27 of the Act, was filed. During the pendency of the said Execution Application, a sum of Rs.5 (five lacs only), through two drafts dated 20.11.2013, out of the decreetal amount was paid by the Judgment Debtor. Accordingly, the Execution Application filed by the Decree Holder/complainant, was dismissed, as withdrawn, on the basis of the undertaking, given by the Counsel for the Judgment Debtor/Opposite Party, that the remaining amount shall be paid, to him (Decree Holder/complainant), within four months, from 21.11.2013.
7. Even after the expiry of four months, the remaining amount was not paid, to the Decree Holder/complainant, by the Judgment Debtor/Opposite Party, as a result whereof, the instant Execution Application No.21 of 2014, under Section 27 of the Act, was filed, for deliberate, willful and intentional non-compliance of the order dated 13.12.2012, passed in the Consumer Complaint, bearing No.42 of 2012, by this Commission.
8. The office, vide its report submitted the calculation sheet, showing that a sum of Rs.53,80,520.64Ps., was due to the Decree Holder, against the Judgment Debtor, as on 11.04.2014, with future interest. It was also reported by the office that no stay order had been received from any quarters.
9. On notice of the Execution Application, under Section 27 of the Act, reply was filed by Mr. R. K. Aggarwal, Managing Director of the Judgment Debtor/Opposite Party, pleading therein, that an Execution Application for the enforcement of interim orders, could only be filed, under Section 25 of the Act. It was further pleaded that, as such, the Execution Application filed under Section 27 of the Act, was not maintainable. It was further pleaded that the Execution Application, under Section 27 of the Act, was also not maintainable, in view of the provisions of Section 24 of the Act, as the appeal against the order dated 13.12.2012, passed by this Commission, in the Consumer Complaint, bearing No.42 of 2012, was still pending before the National Consumer Disputes Redressal Commission, New Delhi, and the same (order dated 13.12.2012), had not attained finality. It was stated that funds of the Judgment Debtor/Opposite Party, were locked, in various projects, including shopping mall, in which the Decree Holder/Complainant, was an applicant, for the allotment of a showroom, and, later on, he filed Consumer Complaint No.42 of 2012, for refund of the amount, deposited by him, before this Commission. It was further stated that heavy funds of the Judgment Debtor/Opposite Party, had been stuck-up, with various parties, and, as such, it was unable to recover its outstanding dues, from them, due to slump, in the real estate market. It was further stated that the Judgment Debtor/Opposite Party, has to recover about Rs.30 crores, from various allottees/debtors of the Company. It was further stated that the Judgment Debtor/Opposite Party, has to recover huge amount from Reliance Retail Limited, but was unable to do so, due to pendency of the matter, before the Hon`ble Supreme Court of India, New Delhi. It was further stated that the Judgment Debtor/Opposite Party, was hopeful to get that amount shortly, as the Hon`ble Supreme Court of India, had already ordered the Reliance Retail Limited, to deposit Rs.16 crores. It was further stated that post dated cheques, in the sum of Rs.18,30,000/-, Rs.18 lacs, Rs.14,96,275/- and Rs.1,40,000/-, were also offered to the Decree Holder/complainant, during the pendency of the instant Execution Application, but he refused to accept the same, and, as such, it could not be said that the Judgment Debtor/Opposite Party, had intentionally and willfully disobeyed the order dated 13.12.2012, passed by this Commission, in the Consumer Complaint, bearing No.42 of 2012. It was further stated that the Execution Application, was liable to be dismissed.
10. Affidavit of Mr.R.K. Aggarwal, Managing Director of the Judgment Debtor/Opposite Party, in support of the averments, contained in the reply, alongwith certain documents, was also filed.
11. Later on, an application was filed by the Judgment Debtor/Opposite Party, for dismissal of the Execution Application, being not maintainable, on the same grounds, as were pleaded in the reply.
12. Reply to this application, was filed by the Decree Holder, with a prayer for dismissal of the same.
13. Today again, a report has been made by the office that no stay order has been received from any quarters.
14. We have heard the Counsel for the parties, and, have gone through the record of the case, carefully.
15. The following questions, falls for determination in this Execution Application:-
(i). Whether only an Execution Application under Section 25 of the Act is maintainable for enforcement of the order dated 13.12.2012?
(ii). Whether the instant Execution Application under Section 27 of the Act, is not maintainable for enforcement of the order dated 13.12.2012, during the pendency of Appeal, against the same, in the National Consumer Disputes Redressal Commission, New Delhi, in view of the provisions of Section 24 of the Act?
16. The first question, that falls for consideration, is, as to whether, only an Execution Application under Section 25 of the Act, for enforcement of the order dated 13.12.2012, passed in the Consumer Complaint, bearing No.42 of 2012, by this Commission, is maintainable. It may be stated here, that the plea taken up by the Judgment Debtor/Opposite Party, in the reply, to the effect that only an Execution Application under Section 25 of the Act, is maintainable and not an Execution Application under Section 27, is completely without any substance, and deserves to be rejected. It is for the Decree Holder/complainant, either to file an Execution Application under Section 25 or under Section 27 of the Act, for enforcement of the orders, passed by the Consumer Foras. Not only this, the Decree Holder/Complainant, can also file both the applications, under Sections 25 and 27, simultaneously, for the enforcement of orders passed by the Consumer Foras. In R. Subramanian Vs. Stichcraft India Ltd., III (2006) CPJ 372 (NC), an argument was advanced by the Counsel for the Revision-Petitioner, that the State Commission, in the first instance, should have issued recovery certificate, for the awarded amount, in the name of the Collector concerned, who could realize that amount, as arrears of land revenue, and it was not permissible to take recourse to the provisions contained in Section 27 of the Act. However, this submission of the Revision-Petitioner was found to be without merit and was rejected. It was held by the National Consumer Disputes Redressal Commission, New Delhi, in the aforesaid case, that it was open to the State Commission, to proceed, either under Section 25 or 27, or simultaneously, under both the Sections, if payment of the awarded amount, was not forthcoming. The principle of law, laid down, in Maytas Vs. Andhra Pradesh State Consumer Disputes Redressal Commission, Mr. Mamidi Naveen and Mrs. MamidiAnantha Lakshmi Saritha, AIR 2013 AP 93, was to the effect that remedies under Sections 25 and 27 of the Act, were independent and the Decree Holder could resort to either of the same, or both, simultaneously. No contrary case law, was cited or produced by the Counsel for the Judgment Debtor/Opposite Party. Under these circumstances, it is held that the Execution Application under Section 27 of the Act, for enforcement of the order dated 13.12.2012, passed by this Commission, in the Consumer Complaint, bearing No.42 of 2012, is maintainable. The plea of the Counsel for the Judgment Debtor/Opposite Party, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. The first question, is, thus, answered against the Judgment Debtor.
17. The next question, that falls for consideration, is, as to whether, during the pendency of appeal, against the order dated 13.12.2012, passed by this Commission, in the Consumer Complaint, bearing No.42 of 2012, in the National Consumer Disputes Redressal Commission, New Delhi, the instant Execution Application, under Section 27 of the Act, is maintainable or not. It is settled principle of law, that mere filing of an appeal, against any order, does not operate as stay. In Allahabad Development Authority, Allahabad Vs. District Consumer Protection Forum Allahabad and another , AIR 2006 ALL 71, a case decided by a Division Bench of the Allahabad High Court, the District Forum accepted the complaint, vide order dated 07.10.1996, and directed the Development Authority, to refund the amount of Rs.1,18,995/-, alongwith interest @ 15% per annum, with yearly rests, and cost of Rs. 2000/-, within two months, failing which the interest was to be paid @ 18% P.A.. An appeal was filed by the Opposite Party, against the aforesaid order, before the State Consumer Disputes Redressal Commission, at Lucknow. However, no interim order, either staying the operation of the order dated 07.10.1996, or granting any other protection, was passed by the State Consumer Disputes Redressal Commission, at Lucknow. Since, the order dated 07.10.1996, was not complied with, by the petitioners, the complainant/ respondent No. 2, filed an Execution Application, under Section 27 of the Act, for execution of the order, before the District Forum, on 21.12.1996, against the Development Authority, and its Officers. After hearing the matter, vide order dated 03.03.1997, the Secretary of the Development Authority, and petitioner No.2, were sentenced to undergo imprisonment for three months each, and to pay a fine of Rs.5,000/-. Feeling aggrieved, Writ Petition, under Article 226 of the Constitution of India, was filed by the petitioners/ Judgment Debtors/Opposite Parties. In the Writ Petition, a submission was made by the Counsel for the petitioners, that since an appeal had been filed, against the order, passed by the District Forum, the same had not attained finality, in view of the provisions of Section 24 of the Act, and, therefore, the same (order) could not be got executed. It was further submitted by the Counsel for the petitioners, that the legislative intent of the Parliament, while enacting Section 24 in the Act, was absolutely clear and did not involve any two interpretations. Other submissions were also made. The Hon`ble High Court of Allahabad, in the aforesaid case, held as under:-
5. Having given our, anxious consideration to the various pleas raised by the learned counsel for the petitioners, we are of the considered opinion that even though under Section 24 of the Act it has been provided that an order passed by the District Forum would be final if no appeal has been preferred against such an order under the provisions of the Act, it does not imply that if an appeal has been preferred against the order passed by the District Forum, the order of the District Forum cannot be executed or action cannot be taken for its violation or non-compliance. For ready reference, Section 24 of the Act is reproduced below:-
24. Finality of orders.- Every order of a District Forum, the State Commission or the National Commission shall, if no appeal has been preferred against such order under the provisions of this Act, be final.
6. It is well settled that mere preferring of an appeal would not operate as stay of an order appealed against. The Apex Court in the case of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., has held as follows:-
8. It is well settled that mere preferring of an appeal does not operate as stay on the decree or order appealed against nor on the proceedings in the court below. A prayer for the grant of stay of proceedings or on the execution of decree/order appealed against has to be specifically made to the appellate Court and the appellate court has discretion to grant an order of stay or to refuse the same.
The only guiding factor, indicated in Rule 5 aforesaid, is the existence of sufficient cause in favour of the appellant on the availability of which the appellate court would be inclined to pass an order of stay. Experience shows that the principal consideration which prevails with the appellate court is that in spite of the appeal having been entertained for hearing by the appellate court, the appellant may not be deprived of the fruits of his success in the event of the appeal being allowed. This consideration is pitted and weighed against the other paramount consideration : why should a party having succeeded from the Court below be deprived of the fruits of the decree or order in his hands merely because the defeated party has chosen to invoke the Jurisdiction of a superior forum. Still the question which the Court dealing with a prayer for the grant of stay asks itself is: why the status quo prevailing on the date of the decree and/or the date of making of the application for stay be not allowed to continue by granting stay, and not the question why the stay should be granted.
7. Even in the case of Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association the Apex Court has held that wherein operation of the order has been stayed by the Court it only means that such order would not be operative from the date of its passing. It would not mean that the order stayed had been wiped out from existence and the order of stay granted pending disposal of a case comes to an end with the dismissal of the substantive proceeding and it is the duty of the Court in such cases to put the parties in the same position they would have been but for the interim orders of the Court.
8. Thus, in view of the authoritative pronouncement of the Apex Court, referred to above, the first plea of Sri Paul that as the appeal has been preferred before the State Commission against the order dated 7.10.1996 passed by the District Forum, no action for its non-compliance or violation can be taken by the District Forum, has no merit and is hereby rejected.
18. From the principle of law, laid down, by the Allahabad High Court, in Allahabad Development Authority, Allahabad`s case (supra), it is evident that the mere fact, that an appeal had been preferred, against the order of the Consumer Fora, where no stay was granted, did not debar the Decree Holder/ complainant, from enforcing the order, on non-compliance thereof, by the Judgment Debtor, by filing an Execution Application, under Section 27 of the Act. The principle of law, laid down, in the aforesaid case, is, thus, fully applicable to the facts and circumstances of the instant case. Since there is no stay against the order dated 13.12.2012, passed in the Consumer Complaint, bearing No.42 of 2012, by this Commission, either from the National Consumer Disputes Redressal Commission, New Delhi, or any other Court, the same could certainly be legally enforced by the Decree Holder/complainant, by filing the Execution Application, under Section 27 of the Act. Under these circumstances, the plea taken by the Counsel for the Judgment Debtor/Opposite Party, with regard to non-maintainability of the Execution Application, under Section 27 of the Act, in view of the provisions of Section 24 of the same (Act), being devoid of merit, is rejected.
19. Not only this, in Aradhana Steels Vs. Regency Industries Ltd., I (1997) CPJ 59, a case decided by Delhi Consumer Disputes Redressal Commission, New Delhi, a similar question fell for decision before it, as to whether, pendency of an appeal, before the National Commission, had the effect of making the order, passed by the State Commission, non-final, within the meaning of Section 24 of the Act, and the same could not be enforced, by way of filing an Execution Application, under Section 27 of the Act. In the aforesaid case, it was held that it is settled principle of law, that mere filing of an appeal, does not operate as a stay of the order, appealed against, and since the National Commission, had not granted any stay of recovery of amount, in pursuance of the order of the State Commission, Execution Application, under Section 27 of the Act, for enforcement of the order passed by it (State Commission), was maintainable. In the aforesaid case, the Delhi State Commission, placed reliance on the decision, in Laxmi Engineering Works v. PSG Industrial Institute, II (1995) CPJ 1 (SC), wherein their Lordships of the Supreme Court, while noticing the scheme of the Consumer Protection Act, made significant observations in para 12 of the report as under:
"12. Having dealt with the meaning of the expression 'any commercial purpose' in Section 2(d) in the light of the scheme of the enactment, it may be necessary to append a clarification to obviate any confusion. Section 24 declares that every order of a District Forum, the State Commission or the National Commission shall, if no appeal has been preferred against such order under the provisions of this Act, be final". This section has to be read alongwith Sub-section (3) of Section
13. Section 13 prescribes the procedure to be followed by the District Forum on receipt of a complaint. Sub-section (3) of Section 13 says that "No proceedings complying with the procedure laid-down in Sub-sections (1) and (2) shall be called in question in any Court on the ground that the principles of natural justice have not been complied with". By virtue of Section 18 the procedure prescribed in Section 13 applies to State Commission as well. From the above provisions, it is clear that the orders of the District Forum, State Commission and National Commission are final as declared in Section 24 and cannot be questioned in a Civil Court. The issues decided by the said authorities under the Act cannot be reagitated in a Civil Court, The said provisions make it equally clear that the Forums created by the Act fall in the second category of Tribunals mentioned in the The Queen v. Commissioner for Special Purposes of the Income Tax, (1888) 21 Q.B. 313 at p.319) which decision had been repeatedly affirmed and applied by this Court which means that the Forums/Commissions under the Act have jurisdiction to determine whether the complainant before them is a 'consumer' and whether he has made out grounds for grant of relief. Even if the Forum/Commission decides the said questions wrongly, their orders made following the procedure prescribed in Sub-sections (1) and (2) of Section 13 cannot be questioned in a Civil Court except of course, in situations pointed out in Dhulabhai v. State of M.P., (1968) 3 S.C.R. 662). They can and must be questioned only in the manner provided by the Act
20. In Aradhana Steels` case (supra), it was held that it is settled law that even the obiter dicta of the Supreme Court is binding. It follows that the finality of the order referred to in Section 24 of the Consumer Protection Act, is to be taken in the sense explained by their Lordships in the Laxmi Engineering Works's case and the pendency of an appeal in the next higher Forum or the Supreme Court against the order of the National Commission, is no impediment in the order being executed or enforced in terms of Section 25 or Section 27 as the case may be. The plea raised by the Counsel for the petitioners, therein, was, rejected. The observations made in Aradhana Steels` case (supra), are also applicable to the facts and circumstances of the instant case. As stated above, since in the instant case, there is no stay, against the order dated 13.12.2012, passed in the Consumer Complaint, bearing No.42 of 2012, by this Commission, hence, the Execution Application, under Section 27 of the Act, is maintainable. The second question posed in paragraph No.15 of this order stands answered in the manner, referred to above.
21. There is another aspect of the case. As stated above, when Consumer Complaint No.42 of 2012, titled as Sushil Siwach Vs. Shalimar Estates (P) Ltd., was instituted by the complainant, on 07.08.2012, which was accepted vide order dated 13.12.2012, feeling aggrieved, the Judgment Debtor/ Opposite Party, filed First Appeal No.58 of 2013, titled as Shalimar Estates Pvt. Ltd., Vs Sushil Siwach, which was admitted. Vide order dated 26.02.2013, the National Consumer Disputes Redressal Commission, New Delhi, in the aforesaid appeal, subject to deposit of the entire decreetal amount, alongwith interest, with it, within four weeks, stayed the operation of the impugned order dated 13.12.2012. It was further made clear, that, in case, the amount was not deposited, within the stipulated period, the stay granted shall stand vacated automatically. Thereafter, an application for extension of time, was filed, by the appellant/Judgment Debtor/Opposite Party, before the National Consumer Disputes Redressal Commission, New Delhi, which, vide order dated 31.05.2013, extended the same (time), for deposit of amount, till 15.06.2013. Again, vide order dated 12.07.2013, by way of final opportunity, one week`s time was allowed to the appellant/Judgment Debtor, to deposit the decreetal amount, but it was made clear that no further extension shall be permitted, in the case, and stay shall automatically stand vacated. Again the appellant/Judgment Debtor, moved I.A. 4730 of 2013, in First Appeal No.58 of 2013, for extension of time, which was declined by the National Consumer Disputes Redressal Commission, New Delhi, vide order dated 02.08.2013. The Judgment Debtor/Opposite Party, filed Special Leave Petition, in the Hon`ble Supreme Court of India, against the order dated 02.08.2013, passed by the National Consumer Disputes Redressal Commission, New Delhi, vide which it declined the extension of time, for deposit of the amount aforesaid. However, the Special Leave Petition was dismissed vide order dated 27.09.2013. Once, the Judgment Debtor/Opposite Party availed of its remedy, upto the Hon`ble Supreme Court of India, against the order dated 02.08.2013, vide which extension of time, was not granted, by the National Consumer Disputes Redressal Commission, New Delhi, for deposit of the amount, now it did not lie, in its mouth, to say that the order dated 13.12.2012, passed in the Consumer Complaint, bearing No.42 of 2012, by this Commission, during the pendency of appeal, before the National Consumer Disputes Redressal Commission, New Delhi, had not attained finality, and, as such, the Execution Application, under Section 27 of the Act, was not maintainable. On this ground too, the submission of the Counsel for the Judgment Debtor/Opposite Party, being devoid of merit, must fail, and the same stands rejected.
22. The Counsel for the Judgment Debtor/Opposite Party, however, placed reliance on Maytas Vs. Andhra Pradesh State Consumer Disputes Redressal Commission, Mr. Mamidi Naveen and Mrs. MamidiAnantha Lakshmi Saritha, AIR 2013 AP 93, decided by the High Court of Andhra Pradesh, at Hyderabad, to contend that, on account of pendency of an appeal, in the National Consumer Disputes Redressal Commission, New Delhi, against the order passed by the State Consumer Disputes Redressal Commission, though the stay granted, therein, stood vacated, the Execution Application, under Section 27 of the Act, was not maintainable. No doubt, in Maytas`s case (supra), the High Court of Andhra Pradesh, at Hyderabad, held that if an appeal against the order of the Consumer Fora, is pending in the Higher Fora, irrespective of the fact, whether stay had not been granted therein, the order could not be executed, by filing the Execution Application, under Section 27 of the Act. It may be stated here, that in Allahabad Development Authority, Allahabad`s case (supra), a Division Bench of the High Court of Allahabad held that the Execution Application, under Section 27 of the Act, for the enforcement of the order, passed by the Consumer Fora, even if, an appeal against the same, was pending, but no stay had been granted, was maintainable. We are of the considered opinion, that in view of the divergent principle of law, laid down, by the Division Benches of two High Courts, on the same point, it is for the Consumer Fora, to follow the one, which appeared to it, to be more reasonable and correct. Why the Decree Holder be deprived of reaping the fruit of decree, which was rendered in his favour, especially when there is no stay, against the same, though an appeal is pending. Why the Decree Holder should be made to wait, for a long number of years, to enforce the order against which, no stay was operative. If the Decree Holder is deprived of the benefit of decision, rendered in his favour, merely on the ground that an appeal against the same is pending, though no stay is operative, against the same, the purpose of the Consumer Protection Act, 1986, providing for the speedy redressal of the grievances of the consumers, shall stand defeated. If ultimately, the appeal is accepted, the Judgment Debtor, shall have the remedy of resorting to the restitution proceedings. In our considered opinion, the view expressed by the Division Bench of Allahabad High Court, in Allahabad Development Authority, Allahabad`s case (supra), is required to be followed, in the instant case, in view of its peculiar facts and circumstances. The principle of law, laid down, in Allahabad Development Authority, Allahabad`s case (supra), also finds support from Laxmi Engineering Work`s case (supra) and Atma Ram Properties (P) Ltd.`s cases (supra) v. Federal Motors (P) Ltd., Appeal (Civil) 7988 of 2004, decided on 10/12/2004, by the Hon`ble Supreme Court of India. No help, therefore, can be drawn by the Counsel for the Judgment Debtor/Opposite Party, from the principle of law, laid down, in Maytas`s case (supra). The submission of the Counsel for the Judgment Debtor/Opposite Party, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
23. The Counsel for the Judgment Debtor/Opposite Party, also submitted that, against the order dated 07.02.2013, passed by the High Court of Andhra Pradesh, at Hyderabad, in Maytas`s case (supra), Special Leave Petition Nos.15345-15347/2013, titled as Mamidi Naveen and another, etc. etc. Vs. Maytas Properties and others, were filed, by the Decree Holders/complainants, which were dismissed vide order dated 20.09.2013, and, as such, the view taken by the High Court of Andhra Pradesh, at Hyderabad, in Maytas`s case (supra), was required to be followed. It may be stated here that, if the Special Leave Petition, is summarily dismissed, such decision does not attract the provisions of Article 141 of the Constitution of India. In Supreme Court Employees Welfare Association Vs. Union of India and Another 1989 (4) SCC 187, the Hon`ble Supreme Court of India held as under:-
When Supreme Court gives reasons while dismissing a special leave petition under Article 136 the decision becomes one which attracts Article 141. But when no reason is given and the special leave petition is summarily dismissed, the Court does not lay down any law under Article 141. The effect of a non-speaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must by necessary implication, be taken to be that the Supreme Court had decided only that it was not a fit case where Special Leave Petition should be granted.
24.
Similar principle of law, was laid down, in Kunhayammed and Ors. Vs. State of Kerala and another, (2000) 6 SCC 359. Under these circumstances, no help can be drawn by the Counsel for the Judgment Debtor/Opposite Party, from the order dated 20.09.2013, passed by the Hon`ble Supreme Court of India, in Mamidi Naveen and another, etc. etc.`s case (supra). The submission of the Counsel for the Judgment Debtor/Opposite Party, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
25. There has been a contumacious defiance of the order dated 13.12.2012, passed in the Consumer Complaint, bearing No.42 of 2012, by this Commission. As stated above, against the said order, already appeal has been filed, before the National Consumer Disputes Redressal Commission, New Delhi. The National Commission, in the said appeal granted stay, subject to the deposit of entire decreetal amount, alongwith interest, with it, within the stipulated period. Thereafter, two/three extensions were given to deposit the decreetal amount with interest, but the Judgment Debtor failed to comply with the said order. Ultimately, vide order dated 02.08.2013, further extension for deposit of amount was declined by the National Commission, resulting into vacation of stay. Against the order dated 02.08.2013, Special Leave Petition filed before the Hon`ble Supreme Court of India, was also dismissed vide order dated 27.09.2013. Thereafter, the Judgment Debtor, failed to comply with the order dated 13.12.2012, passed by this Commission, in the Consumer Complaint, bearing No.42 of 2012. This exhibits his willful and intentional defiance of the order dated 13.12.2012, referred to above.
26. Not only this, as stated above, earlier Execution Application No.08 of 2013, was filed by the complainant/Decree Holder, for compliance of the order dated 13.12.2012, passed by this Commission, in the Consumer Complaint, bearing No.42 of 2012, during the pendency whereof, two Demand Drafts bearing Nos.030537 and 133392, both dated 20.11.2013, in the sum of Rs.2 lacs, and Rs.3 lacs, respectively, were handed over to the Counsel for the Decree Holder/complainant, by the Counsel for the Judgment Debtor/Opposite Party, and the same were accepted by him. An undertaking was given by the Counsel for the Judgment Debtor/Opposite Party, that the Judgment Debtor shall pay the remaining amount, within four months. On the basis of such undertaking, the Execution Application was dismissed as withdrawn, with liberty to file a fresh one, in case, the same (undertaking) was not adhered to. This undertaking was not adhered to, by the Judgment Debtor/Opposite Party, as a result whereof, the instant Execution Application, was filed by the Decree Holder/complainant. No doubt, during the pendency of the instant Execution Application, four post dated cheques, referred to above, were offered, by the Counsel for the Judgment Debtor/Opposite Party, to the Counsel for the Decree Holder/complainant, yet he refused to accept the same, keeping in view the previous conduct of the Judgment Debtor/Opposite Party, as he failed to comply with the undertaking, aforesaid, given by him. Thus, contumacious defiance of the order dated 13.12.2012, passed by this Commission, in the Consumer Complaint, bearing No.42 of 2012, by the Judgment Debtor is writ large, on the face of it.
27. The order, in the Consumer Complaint was passed on 13.12.2012, by this Commission. Now it is June 2014, but still the same has not been complied with, by Sh. R.K. Aggarwal, Managing Director of Shalimar Estates Private Limited, Judgment Debtor/Opposite Party. Thus, the conduct of Sh. R.K. Aggarwal, Managing Director of Shalimar Estates Private Limited, Judgment Debtor/Opposite Party, could not be said to be bonafide. He defied the order dated 13.12.2012, with impunity. The hard earned money, to the tune of Rs.23.30 lacs, deposited by the complainant/Decree Holder, towards the price of unit, plus interest thereon, which in total came to be Rs.53,80,520.64 paisa, as on 11.04.2014, with future interest, was usurped by the Opposite Party/Judgment Debtor. 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
28. One can really imagine the plight of a person, who deposited his hard earned money, referred to above, way back in 2006, but till June 2014, was not refunded the same.
29. For the reasons recorded above, the Execution Application is accepted, with no order as to cost.
30. Keeping in view the facts and circumstances of the case, contumacious defiance of the order dated 13.12.2012, passed by this Commission, in the Consumer Complaint, bearing No.42 of 2012, with impunity, by Sh. R.K. Aggarwal, Managing Director of Shalimar Estates Private Limited, Judgment Debtor/Opposite Party, and considering the fact that faith of the Consumers, is not shattered, in the Consumer Foras, set up for speedy redressal of grievances, he does not deserve any leniency, in the matter of imposition of sentence. Sh. R.K. Aggarwal, Managing Director of Shalimar Estates Private Limited, Judgment Debtor/Opposite Party, is sentenced to undergo simple imprisonment for a period of 2 years, and to pay a fine of Rs.10,000/-, in default of payment of fine, to undergo further simple imprisonment for 6 months.
31. Non-bailable warrants of Sh. R.K. Aggarwal, Managing Director of Shalimar Estates Private Limited, Judgment Debtor/Opposite Party, returnable for 23.07.2014, be issued, for his arrest, and detention in Jail, to undergo sentence, awarded to him.
32. The application filed by the Judgment Debtor, for dismissal of the Execution Application, is dismissed, as having been rendered infructuous, with no order as to costs.
33. Certified copies of this order, be sent to the parties, free of charge.
34. The file be consigned to Record Room, after completion Pronounced.
23.06.2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER SD/-
(PADMA PANDEY) MEMBER Rg