National Consumer Disputes Redressal
Shyamji Narpar Chhedashyamji Narpar ... vs S.N. Pathak & M/S. R.S. Builders on 30 January, 2003
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 522 OF 1997 (From the order dated 8.5.1996 in complaint No. 200/91 of the State Commission Maharashtra) Dinesh Premji Shah Petitioner Vs. 1. S.N. Pathak 2. M/s. R.S. Builders Respondents REVISION PETITION NO. 523 OF 1997 (From the order dated 8.5.1996 in complaint No. 443/92 of the State Commission Maharashtra) Dinesh Premji Shah Petitioner Vs. 1. Mrs. Zoe Menezes 2. M/s. R.S. Builders Respondents REVISION PETITION NO. 1472 OF 1997 (From the order dated 8.5.1996 in complaint No. 445/92 of the State Commission Maharashtra) Kasim Khan Petitioner Vs. Mrs. Zoe Menezes Respondents REVISION PETITION NO. 1473 OF 1997 (From the order dated 8.5.1996 in complaint No. 200/91 with 445/92 of the State Commission Maharashtra) Kasim Khan Petitioner Vs. S.N. Pathak Respondent REVISION PETITION NO. 787 OF 1998 (From the order dated 6.11.96 in Misc. Appln. No.107,108 & 65/97 in Original Complaint Nos. 200/91 and 445/92 of the State Commission Maharashtra) Shyamji Narpar Chheda Petitioner Vs. 1. S.N. Pathak 2. M/s. R.S. Builders Respondents REVISION PETITION NO. 493 OF 1998 (From the order dated 6.11.97 in MA No.108/96 in OC No. 445/92 of the State Commission Maharashtra) Mrs, Zoe Menezes Petitioner Vs. M/s. R.S. Builders & Ors. Respondents BEFORE: HONBLE MR. JUSTICE D.P. WADHWA, PRESIDENT HONBLE MR. JUSTICE J.K. MEHRA, MEMBER MR. B.K. TAIMNI, MEMBER. Jurisdiction a consumer forum cannot go against the order passed by the a civil court- Act provides additional remedy but does not confer a jurisdiction on a consumer forum to act as an appellate body or exercise powers when those do not emanate from the Act constituting it. O R D E R
DATED THE 30th JANUARY, 2003.
JUSTICE D.P. WADHWA, J.(PRESIDENT) Five petitions arise out of two complaints filed against the builder who are now before us challenging the order dated 6.11.97 passed in execution by the Maharashtra State Consumer Disputes Redressal Commission (Sate Commission, for short). Sixth petitions (Revision Petition No.493/98) is by one of the two complainants seeking enforcement of that very order of the State Commission.
Two complainants were S.N. Pathak and Mrs. Zoe Menezes. The builders-opposite parties are M/s.
R.S. Builders, a partnership firm of Kasim Khan, Dinesh Premji Shah and Shyamji Narpar Chheda, as the three partners. Complainants had entered into an agreement for purchase of the flats from R.S. Builders in a building which was to be constructed by R.S. Builders on a piece of land under an agreement earlier entered into by Kasim Khan with the owner of land Mrs. Conceicao Rosaline Mendes. The agreement which the complainants had entered into with the builders was in 1981. It is not necessary for us to go into the terms of the agreement except to note that the order dated 8.5.96 of the State Commission allowing the complaints makes a mention to the dispute between Mrs. Mendes, the owner of land and Kasim Khan. It was recorded on statement made by Kasim Khan that possession of the flats will be handed over to the complainants by 30th June, 1996. Accepting the statement of Kasim Khan, State Commission directed that possession of the flats be handed over by 30th June, 1996 with a further direction to hand over the completion certificate and to execute the conveyance deed within eight weeks of the date of the order.
State Commission also observed that since the opposite parties-builders did not complete the construction within the stipulated time as agreed, they were to pay interest @ 18% per annum on the amount deposited by the complainants from 1981 till possession is given along with compensation of Rs.50,000/- to each of the two complainants. State Commission also gave a direction in case default was committed by the builders, which is as under:
In case, this compliance is not made i.e. this amount is not paid, conveyance is not made within 8 weeks, possession is not delivered in the month of last week of June,96, then the respondents shall pay penalty of Rs.1000/- per day to these complainants (each) till the compliance of this order. The respondents are also directed to pay cost of Rs.5000/-
each to the complainants within 4 weeks, failing which, it shall also carry interest @ 18% till its realisation. With this direction both these complaints stand disposed of.
No appeal was filed by the builders against the order dated 8.5.96 of the State Commission, which became final.
It would appear that there was a default in complying with the order of the State Commission and necessity arose for the complainants to take out execution proceedings. State Commission thereafter passed the following order:
6.11.97 In complaint No.200/91 & 445/92, against Mr. Shyamji Chedda, Kasim Khan and Dinesh Shah, partners Of R.S. Builders, the State Commission has passed an order that the amount paid by the complainants should be refunded, conveyance in respect of the flats should be done within 8 weeks and possession of the flats to be given by last week of June, 1996.
In the event of failure on the part of opposite parties to comply with these conditions, the State Commission further directed that the respondents shall pay penalty of Rs.1000/- per day to the complainant in each complaint till the compliance of the order. The respondents are further directed to pay cost of Rs.5000/- to each of the complainants. We are satisfied that none of the conditions have been complied. The penal clause, therefore, to stand invoked.
Penalty of Rs.1000/- each to be paid comes to Rs.4,85,000 between the period from 1.7.96 to 31.10.97. This is besides the cost. No payments have been made. Time is sought but we are not inclined to grant time as the matter is old and the non-obedience of the order is for a prolonged period. We, therefore, feel that the Opposite Parties, Mr. Chedda, Mr. Khan and Mr. Shah should be sentenced to undergo simple imprisonment for a period of 3 years. Warrant was issued against Mr. Shah and Mr. Chedda who are not present.
Mr. Khan is present. Warrant of imprisonment be prepared and he be taken in custody by the Police.
After this order was passed an application of Mr. Chedda on affidavit for cancellation of warrant is pressed.
The application is dated 6.11.97. The order of the Sate Commission is dated 8.5.96. There is no mention about deposit the amount with the State Commission. It being the belated prayer, we are unable to accept the same and accordingly reject the same.
After this order of State Commission we find a note was recorded by the State Commission which is as under:
While the order was being typed and the warrant of imprisonment was under preparation, Mr. Kasim Khan was ordered by the Commission not to leave the Court. However, while the Commission was busy in hearing the other matters, Mr. Kasim Khan has actually disappeared from the Commission without permission of the Commission and he is not to be found within the premises of the Commission. This is a .. intentional revolution of the orders and directions issued by the Commission to Mr. Khan. The Commission has left with no option but to issue a non-bailable warrant for producing him before this Commission through Borivali (W) Police Stn.
Issue non-bailable warrant R/o.19.11.97.
Revision Petition Nos. 522/97 and 523/97 are by Dinesh Premji Shah, partner of R.S. Builders a partnership firm, against two complainants namely S.N. Pathak and Mrs. Zoe Menezes.
Similarly, Revision Petition Nos. 1472/97 and 1473/97 are by Kasim Khan, another partner of R.S. Builders against S.N. Pathak and Zeo Menezes, who had filed two separate complaints.
The third partner, namely Shyamji Narpar Chedda, has filed a combined Revision Petition No.787/98 against S.N. Pathak and Zoe Menezes.
As noted above, Revision Petition No.493/98 is filed by Zoe Menezes, complainant seeking execution of the order of the State Commission.
Both Dinesh Premji Shah and Shyamji Narpar Chedda, partners of R.S. Builders put blame on Kasim Khan and we find from the record that Kasim Khan is quite elusive. Before us he has also not appeared and has taken refuge behind the medical certificates. But the facts remain that all the three partners of R.S. Builders had entered into agreements with the two complainants and taken money. They promised to build the flats and to hand over possession of the same with in a stipulated period. They had failed and as we find from the two orders of the State Commission one dated 8.5.96 and the other 6.11.97. The orders are appropriate and in normal circumstances we would not have interfered. But then there is another angle to the proceedings. That is the dispute between Mrs. Conceicao Rosaline Mendes the owner of the land and Kasim Khan who had entered into a separate agreement for building flats on the plot of the land owned my Mendes. This agreement is dated 24th January, 1980. This agreement had been brought on record. There are reciprocal promises and one of the clauses of the agreement allows Kasim Khan to sell the flat or flats in the building to be constructed on the land owned by Mendes on ownership basis. Again we need not refer to this agreement in detail except to note that Mendez had alleged breach of the agreement. A supplementary agreement was entered into between Mendes and Kasim Khan on 17th March, 1986.
It is difficult to accept the version of other two partners that they were unaware of the agreements dated 24th January, 1980 and that 17th March, 1986 between Kasim Khan, one of the partners of R.S. Builders and Mendes, the owner of the land. Again alleging breach of agreement Mendes filed a civil suit in the Bombay City Civil Court at Bombay, it being Short Cause Suit No.7571/89 entitled Smt. Conceicao Rosaline Mendes vs. Shri Kasim S. Khan. An order was passed on 30.11.90 disposing of the suit with the following order:
30/11/90 CORAM:
HIS HONOUR JUDGE SHRI A. J. DHOLAKIA V.T. Lulia, Advocate for the Plaintiff.
Defendant and advocate absent.
Mr. Lulia files affidavit of Service, taken on record. Defendant has neither appeared nor filed pleadings. Hence order under Rule 5(2) of Order 8 of Civil Procedure Code deserve to be passed.
Hence the order: There shall be a decree in favour of the plaintiff in terms of prayer (a) of the Plaint, with costs.
Sd/-x.x.x.
Now, if we refer to prayer (a) in the plaint, it is as under:
THE PLAINTIFF THEREFOR PRAYS THAT:
(a) that the Defendant his servants, agents and the persons claiming through him be restrained by an permanent order of injunction restraining them from entering into the Suit Lane, i.e. the land bearing Plot No.20, Survey No.119, Hissa No.6 and 7 (Part) and City Survey No.1006 of village Eksara in the area known as Holy Cross Lane, Mount Poiser, Borivli (West) Bombay-400103.
(b)
(c)..
(d) An application was filed by Kasim Khan under Order IX Rule 13 of Civil Procedure Code for setting aside the aforesaid order of the City Civil Court. This application was dismissed by order dated 20.4.1998. The application for setting aside the order was filed after a delay of 7 years and 65 days.
Be that as it may, the order of the City Civil Court dated 30.10.90 is final. That being the position it is difficult to see how the order of the State Commission directing possession of the flats to be given could be enforced. The record clearly shows, however Kasim Khan has been dishonest in his dealings and made false statement before the State Commission when he knew that an order of injunction of the City Civil Court operating against him.
After examining the agreement between the owner Mrs. Conceicao Rosaline Mendes where Kasim Khan had been given authority to sell the flats on the land owned by Mendes, we issued notice to her for impleading her as a party. However, after she brought to our notice the order of the City Civil Court even rejecting the application of Kasim Khan for setting aside the order of permanent injunction against Kasim Khan we do not think we can pass any order against Mendes and she is discharged from these proceedings.
Now, the question arises how to balance the equities. Both the complainants had waited for 22 years to get the flat to which they had been denied. We asked the complainants to accept the refund of the money with interest, they said that they would like to have flats for which they had waited so long and did not want the money. But then the things as stand today flats are out of their reach. They could have had proper advice received, got themselves impleaded in a civil suit filed by Mendes against Kasim Khan or taken some other legal action. A Consumer Forum cannot go against the order passed by the Civil Court. Consumer Protection Act, 1986 provides only an additional remedy but does not confer jurisdiction on a Consumer Forum to act as an appellate body or exercise powers which do not emanate from the Act constituting it.
There is no way out except to modify the orders of the State Commission and direct that instead complainants-respondents shall get refund of their money with interest @ 18% per annum from 1981 till payment with damages of Rs.50,000/- each as awarded by the State Commission and that also with interest @ 18% per annum from eight weeks after the date of the order of the State Commission which is 8.5.96 again till payment. Complainants shall also get cost as ordered by the State Commission. Complainants shall also be entitled to cost of Rs.10,000/- each in the proceedings before us.
Six weeks time is given to the petitioner in Revision Petition No.522/07, 523/97, 1472/97, 1473/97 and 787/98 from the date of this order to make the payments. In case of default State Commission shall take action in terms of its order dated 6.11.97 and enforce its orders directing simple imprisonment for a period of three years and in case the petitioners i.e. the three partners of the R.S. Builders, do not surrender, non-bailable warrants be issued against them.
No separate orders are required to be passed in Revision Petition No.493/98. It stands disposed of.
J (D.P. WADHWA) PRESIDENT J (J.K. MEHRA ) MEMBER (B.K. TAIMNI) MEMBER