State Consumer Disputes Redressal Commission
Mr. Sudeep Singh Sabharwal vs Sandeep Goyal on 15 October, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 410 of 2013 Date of Institution : 20.09.2013 Date of Decision : 15.10.2013 Mr. Sudeep Singh Sabharwal, s/o Late Sh. D.S. Sabharwal, 100, Lakhi Nagar, Club Road, Jorhat, Assam 785001 Appellant/Judgment Debtor/Opposite Party No.2 V e r s u s 1. Sandeep Goyal s/o Sh. Roshan Lal Goyal, R/o House No.394, Sec-9, Panchkula. 2. Tripta Goyal w/o Sandeep Goyal, R/o House No.394, Sec-9, Panchkula. ....Respondents/Decree Holders/complainants Appeal under Section 27-A of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
Argued by: Sh. Rohit Sapra, Advocate for the appellant.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 13.02.2013, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only), in Criminal Petition No.137 of 2011, titled as Sandeep Goyal and Anr. Vs. M/s J.S. Dwellers Pvt. Limited and Anr., vide which, Mr. Sudeep Singh Sabharwal, Managing Director/Director of Opposite Party No.1, was convicted and sentenced to undergo simple imprisonment, for a period of one year, and to pay a fine of Rs.10,000/-, in default of payment whereof, to undergo further imprisonment for a period of 6 months.
2. The facts, in brief, are that the Consumer Complaint bearing No.97 of 2011, was filed by Mr. Sandeep Goyal and Tripta Goyal, Decree Holders/complainants, on the allegations that the Judgment Debtors/Opposite Parties No.1 and 2, floated a scheme, under the name and style Cresent Apartments at Baddi (HP), with a proposal to develop apartments, on the total land, comprising Khasra No.652/475, Khewat/Khatouni No.61/70, situated in Village Saner, Hadbast No.161, P.O. Manpura, Prg. Tehsil Nalagarh, District Solan. Attracted by the advertisements, in leading newspapers, giving rosy pictures, that the project had been duly approved by the Himachal Pradesh Govt., the complainants, visited the site, and deposited a sum of Rs.25,000/-, with the Opposite Parties, vide receipt No.065 dated 15.05.2006 (Annexure C-2). Another amount of Rs.2 lacs, as part price of the said apartment, was paid by the complainants. In all, an amount of Rs.2.25 lacs, was paid by the complainants, towards the part price of said apartment. The total price of the apartment, booked by the complainants, consisting of three bedrooms drawing/dining, kitchen and toilets, ground floor, was fixed at Rs.15 lacs, which included wood work, sanitary, electrical fittings etc. Apartment Buyer`s Agreement dated 19.02.2007, was executed between the parties, at Chandigarh. According to Clause No.14 of the said Agreement, the builder was to complete the project, within 2 years, from the start of construction. Even after the lapse of two years, the time stipulated, in the said Agreement, no progress was made to complete the construction of apartment, despite the fact that the complainants were ready and willing to perform their part of the contract.
3. In the middle of June, 2009, the complainants visited the site, and found the office of the Opposite Party locked. It came to the knowledge of the complainants that Opposite Party No.2/Mr.Sudeep Singh Sabharwal, Managing Director/Director of M/s J.S. Dwellers Pvt. Limited, Judgment Debtor No1/Opposite Party No.1, had been arrested by the Chandigarh Police, in a cheating case. It was stated that neither the construction of apartment, was completed by the Opposite Parties, nor the question of delivery of possession thereof could arise, nor the refund of amount deposited by the complainants, was made to them, despite various requests. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, claiming various reliefs.
4. The District Forum, vide order dated 06.09.2011, accepted the Consumer Complaint, bearing No.97 of 2011, the operative part whereof reads as under:-
As result of the above discussion, this complaint is accepted and OPs are directed to refund Rs.2,25,000/- to the complainants and Rs.50000/- as compensation for mental agony and harassment. The OPs are also directed to pay to the complainants a sum of Rs.Rs.5000/- as costs of litigation.
This order be complied with by the OPs within one month from the date of receipt of the certified copy failing which OPs shall be liable to pay the entire amount to the complainants along with interest @ 12% p.a. from the date of filing of the complaint i.e. 22.02.2011 till realization besides costs of litigation.
5. Since, the Judgment Debtors/Opposite Parties, failed to comply with the order dated 06.09.2011, Criminal Petition under Section 27 of the Act, was filed by the Decree Holders/complainants.
6. Show Cause notice was issued to Mr.Sudeep Singh Sabharwal, Managing Director/Director of M/s J.S. Dwellers Pvt. Limited, Opposite Party No.1, as to why, he should not be tried, in a summary manner, and punished for non-compliance of the order dated 06.09.2011. Mr.Sudeep Singh Sabharwal/Opposite Party No.2, Managing Director/Director of M/s J.S. Dwellers Pvt. Limited, Judgment Debtor No.1/Opposite Party No.1, avoided the service of notice, whereafter, he was ordered to be summoned, through bailable and non-bailable warrants, which were received back unexecuted.
7. On 24.07.2012, Sh. R.K. Kakkar, Advocate, put in appearance, on behalf of the Judgment Debtors/Opposite Parties, and prayed for sometime, to comply with the order, passed by the District Forum, in the Consumer Complaint bearing No.97 of 2011. The order was, however, not complied with, despite the fact that a number of opportunities were granted to the Judgment Debtors/Opposite Parties, through their Counsel. Even Opposite Party No.2/Mr.Sudeep Singh Sabharwal, Managing Director/Director of M/s J.S. Dwellers Pvt. Limited, Opposite Party No.1, was not produced before the District Forum.
8. Ultimately, on 10.10.2012, Sh. R.K. Kakkar, Advocate, withdrew his Power of Attorney, without filing any reply to the Show Cause notice. Though the Judgment Debtors/Opposite Parties, who had engaged Sh. R.K. Kakkar, very well knew of the pendency of the proceedings, yet, Mr. Sudeep Singh Sabharwal did not put in appearance, for filing reply, to the Show Cause notice, served upon him.
9. After hearing the Counsel for the Decree Holders/complainants, and, on going through the record of the case, the District Forum, came to the conclusion, that the Judgment Debtors/Opposite Parties, had willfully disobeyed the order dated 06.09.2011.
10. Accordingly, Mr. Sudeep Singh Sabharwal/ Opposite Party No.2, Managing Director/ Director of M/s J.S. Dwellers Pvt. Limited, Judgment Debtor No.1/Opposite Party No.1, was convicted and sentenced under Section 27 of the Act, in the manner, referred to, in the opening paragraph of the instant order.
11. Feeling aggrieved, the instant appeal, under Section 27-A of the Act, was filed by the appellant/Mr.Sudeep Singh Sabharwal, Managing Director/Director of M/s J.S. Dwellers Pvt. Limited, Judgment Debtor No.1/Opposite Party No.2.
12. We have heard the Counsel for the appellant, at the preliminary stage, and, have gone through the record of the case, carefully.
13. The Counsel for the appellant, submitted that the impugned order was passed, by the District Forum without application of judicial mind, on irrelevant considerations. He further submitted that there are other Directors of M/s J.S. Dwellers Pvt. Limited/Opposite Party No.1, who were not arrayed as parties, to the Criminal Petition, and, as such, the said Petition was bad for non-joinder of necessary parties. He further submitted that the alleged payment was made by the complainants/respondents, to M/s J.S. Dwellers Pvt. Limited, and, as such, the appellant could not be held individually responsible, for non-refund of the amount. He further submitted that there was no allegation, in the Consumer Complaint or in the Criminal Petition, under Section 27 of the Act, that Mr.Sudeep Singh Sabharwal, Managing Director/Director of M/s J.S. Dwellers Pvt. Limited, Judgment Debtor No.1/Opposite Party No.1, was vicariously liable for the acts of the Company. He further submitted that Mr.Sudeep Singh Sabharwal, was neither in-charge of, nor responsible to the Company, for the conduct of its day to day business, and, as such, could not be held individually responsible. He further submitted that the appellant was a victim of fraud played upon him, by other Directors of the said Company, who had siphoned off its (Company) huge money, for their wrongful gains, for which he had already got registered a Criminal Case, against them, which was pending investigation. He further submitted that the amount deposited by the complainants and other buyers, was invested for acquiring the land and developing the said project, with Mr. S.S.Multani, under Joint-Venture Agreement, who dishonestly misappropriated Rs.80 lacs, and failed to provide any land for development. He further submitted that since the impugned order was passed exparte, there was violation of the principles of natural justice, and the appellant was condemned unheard. He further submitted that the order impugned, being illegal and invalid, is liable to be set aside.
14. The first question, that falls for consideration, is, as to whether, the proceedings under Section 27 of the Act, could be initiated against Mr.Sudeep Singh Sabharwal, Managing Director/Director of M/s J.S. Dwellers Pvt. Limited, Judgment Debtor No.1/Opposite Party No.1, for non-compliance of the order dated 06.09.2011. All the provisions of the Code of Civil Procedure, are not applicable to the proceedings, before the Consumer Fora, except those, specifically mentioned under Section 13(4) of the Act. Opposite Party No.1, being a Private Limited Company, was not to act itself. This Company was to act through the Managing Director and/or the Directors. In the Consumer Complaint Mr. Sudeep Singh Sabharwal was also arrayed as Opposite Party No.2, and order dated 06.09.2011, was also passed against him. In Sanjay K.Malviya Vs Sidhharth Enterprises & Anr. I(2008)CPJ 74(NC), it was held that the provisions under Section 27 of the Act, could be applied to the Directors of the Company, notwithstanding the absence of specific provision, for action against those in-charge of the affairs of the Company. It was further held that impleadment of the Directors of the Company, as parties, in addition to the Company, in the Consumer Complaint was not necessary. It was further held that the orders passed by the Foras below, against the Company were binding on the Managing Director and the Directors of the Company.
15. In Mr. Tonse N.M. Pai Vs. All Goa Manipal Finance Group of Companies Creditors Association, 2013 (1) CCC 420 (NS) a similar question, arose for decision, before the National Consumer Disputes Redressal Commission, New Delhi. The National Consumer Disputes Redressal Commission, New Delhi, held that a Company acts through its Board of Directors, at the meetings. It is managed through its Managing Director or its Directors. The Managing Director is certainly the in-charge of and responsible to the Company for the conduct of its day-to-day affairs and, as such, could be penalized under Section 27 of the Act. The Managing Director of the Company cannot escape the liability of complying with the order passed in the Consumer Complaint. He also cannot contend in the proceedings under Section 27 of the Act, that only the Company was liable to be penalized. It was further held that contrary view could only defeat the provisions of Section 27 (1) of the Act, which was enacted for greater protection of the interests of the consumers, by way of additional remedy.
16. In Byford Leading Ltd. Vs. Union of India (57) (1995) DLT 623, which was followed in Ravikant and another Vs. National Consumer Disputes Redressal Commission and others (1997 (2) CPR 65), a Division Bench of the Delhi High Court, held that under Section 27 of the Act, the Chairman and the Managing Director of the Company can be proceeded against, they being In-charge of the management and in control of the affairs of the Company. In Ravikant and another`s case (supra), a Division Bench of the Delhi High Court, referred to the unamended Contempt of Courts Act, 1962 and the decision of the Apex Court, in The Aligarh Municipal Board vs Ekka Tonga Mazdoor Union and Ors (AIR 1970 SC 1767) and held that a penal provision in Section 27 of the Act, which is applicable to a Company, must be treated as applicable to those whose are officially responsible for the conduct of its affairs. In Ravikant and another`s case (supra), there were two petitioners, who were the Directors of each of the Companies. Under these circumstances, it was held that the penal provisions of Section 27 of the Act, could be applied to the Directors of the Companies, notwithstanding the absence of the specific provision, for action against those in charge of or in control of the affairs of the Company. This conclusion could also be reached by invoking the principle of lifting of corporate veil.
17. Not only this, in Ashish Ramesh Chandra Birla & Ors.Vs Murlidhar Rajdhar Patil & Ors.I (2009) CPJ 200 (NC), a Consumer Complaint was filed against Siddhi Vyankatesh Urban Co-operative Credit Society Ltd. Jalgaon, that some amount was invested with it, in a Scheme launched by it, but it failed to pay the same, on maturity. The complaint was, ultimately, accepted by the District Forum. Aggrieved against the order of the District Forum, First Appeal was preferred, before the State Consumer Disputes Redressal Commission, which was dismissed. Dissatisfied with the orders of the District Forum, and the State Commission, Revision Petition was filed, before the National Consumer Disputes Redressal Commission, taking up an objection, that the Directors of the Society were not personally responsible, for any default of repayment of the maturity amount, by the Society. Ultimately, the National Consumer Disputes Redressal Commission, held that the Directors of the Society were jointly and severally liable to pay the amount of maturity and were rightly held to be deficient, in rendering service, by the Foras below. The principle of law, laid down, in the aforesaid cases, is fully applicable to the instant case.
18. In the instant case, the Consumer Complaint bearing No.97 of 2011, was filed against M/s J.S.Dwellers Pvt. Limited, Admn. Office at SCO No. 210-211, 2nd Floor, Sector 34-A, Chandigarh through its Managing Director, and Shri Sudeep Singh Sabharwal, Director of M/s J.S.Dwellers Pvt. Limited, Admn. Office at SCO No. 210-211, 2nd Floor, Sector 34-A, Chandigarh. Alongwith the appeal, a document dated 02.01.2006 Annexure A-5, has been submitted by the appellant. It is a copy of the Joint Venture Agreement, executed between Shri S.S. Multani, General Power of Attorney holder and Proprietor of S.S. Infrastructure (first party) and M/s J.S. Dwellers Pvt. Ltd., through its authorized Managing Director-Sudeep Singh Sabharwal, son of Sh. D.S. Sabharwal, having its office and residence at H.No.1385, Sector 34-C, Chandigarh. In this document, which has been placed, on the record, by the appellant, himself, alongwith the memorandum of appeal, he was described as Managing Director of M/s J.S. Dwellers Pvt. Limited, Judgment Debtor No.1/Opposite Party No.1. Since, Mr.Sudeep Singh Sabharwal, claimed himself as Managing Director/Director of M/s J.S. Dwellers Pvt. Limited, Judgment Debtor No.1/Opposite Party No.1, he could not escape his liability. Even the Apartment Buyer`s Agreement executed between the parties, was signed by Sudeep Singh Sabharwal, in the capacity of a Director of M/s J.S. Dwellers Pvt. Limited. Mr.Sudeep Singh Sabharwal, Managing Director/Director of M/s J.S. Dwellers Pvt. Limited, Judgment Debtor No.1/Opposite Party No.1, being in-charge of and responsible to the Company, for the conduct of its day to day affairs, was bound to comply with the order dated 06.09.2011, passed by the District Forum. In view of the law, laid down, in the aforesaid cases, Mr.Sudeep Singh Sabharwal, Managing Director/Director of M/s J.S. Dwellers Pvt. Limited, Judgment Debtor No.1/Opposite Party No.1, on non-compliance of the order passed in the Consumer Complaint bearing No.97 of 2011, could certainly be proceeded against, under Section 27 of the Act. The question posed, at the outset of paragraph 14 of the order, is, thus, answered in the affirmative. The submission of the Counsel for the appellant, to the contrary, being devoid of merit, and against the principle of law, laid down, in the aforesaid cases, stands rejected.
19. The next question, that falls for consideration, is, as to whether, all other Directors of M/s J.S. Dwellers Pvt. Limited, Judgment Debtor No.1/Opposite Party No.1, were required to be impleaded as parties to the Consumer Complaint, under Section 12 of the Act or not. In our considered opinion, it was not necessary, on the part of the complainants, to implead all the Directors of the Company, in their individual capacity, in the Consumer Complaint, as parties. M/s J.S. Dwellers Pvt. Ltd., through its Managing Director, was impleaded as Opposite Party No.1/Judgment Debtor No.1, whereas Mr. Sudeep Singh Sabharwal, Managing Director/Director was impleaded as Opposite Party No.2/Judgment Debtor No.2. As stated above, the Company is to act through the Managing Director/Directors of the same, and, as and when, an order is passed against the Company, the Managing Director/Director, through which that Company was impleaded, could not say that he was not liable, in the absence of other Directors being parties to the complaint. By no stretch of imagination, it, therefore, could be said that the Consumer Complaint bearing No.97 of 2011, was bad for non-joinder of necessary parties. The submission of the Counsel for the appellant, in this regard, being devoid of merit, must fail, and the same stands rejected.
20. It was next submitted by the Counsel for the appellant, that Mr.Sudeep Singh Sabharwal, Managing Director/Director of M/s J.S. Dwellers Pvt. Limited, Judgment Debtor No.1/Opposite Party No.1, could not be individually held wholly solely, liable, as he was only having 5% share, in the Company. When a Company represents to a third party, through its Managing Director/Directors, that it was going to construct apartments, then it (third party), on such representation, applies for the allotment of an apartment. The third party is not bound to know the constitution of the Company, or who were the Directors/Managing Director of the same, at the relevant time. The third party, as and when, an order is passed, in its favour, against a Private Limited Company, can file an Execution Application, against one or all the Directors/Managing Director, who cannot escape the liability, merely by saying that the other Directors were not impleaded as parties to the complaint. Once, the Managing Director/Director satisfies the decree, then it is between him, and the other Directors of the Company, to determine their liability interse. Under these circumstances, Mr. Sudeep Singh Sabharwal, Managing Director/Director, could be held liable, for not complying with the order dated 06.09.2011, passed in the Consumer Complaint bearing No.97 of 2011, by the District Forum. He could not escape his liability, on the ground, that he was having only 5% share, in the Company, and the other Directors, were not impleaded as parties. The submission of the Counsel for the appellant, in this regard, being devoid of merit, must fail, and the same stands rejected.
21. The Counsel for the appellant, however, placed reliance on N.K. Wahi Vs. Shekhar Singh and Ors., decided on 09.03.2007, K. Srikanth Singh Vs. North East Securities Ltd. and Anr., decided on 20.07.2007 by the Hon`ble Supreme Court and Hrushikesh Panda Vs. Indramani Swain and Anr., AIR 1987 Ori. 79, to contend that, in the absence of any averment, in the Consumer Complaint, having been made by the complainant, or in the Execution Application/ Criminal Petition, to the effect, that Mr. Sudeep Singh Sabharwal, Managing Director/Director was in-charge of the Company and was responsible to it for the conduct of its day to day affairs, he could not be held liable, in his individual capacity. There is, no dispute, about the principle of law, laid down, in the aforesaid cases, relied upon by the Counsel for the appellant. However, the facts of the instant case, are completely distinguishable, from the facts of the aforesaid cases. None of the cases, relied upon, by the Counsel for the appellant, related to the interpretation of the provisions of Section 27 of the Act. N.K. Wahi and K. Srikanth Singh`s cases (supra), related to interpretation of Sections 138 and 139 of the Negotiable Instruments Act,1881 (amended upto date), whereas Hrushikesh Panda`s case (supra), related to the interpretation of Section 47 of the Civil Procedure Code. In the instant case, the principle of law, laid down, in Sanjay K.Malviya, Mr. Tonse N.M. Pai, Byford Leading Ltd., Ravi Kant and Anrs` and Ashish Ramesh Chandra Birla`s cases (supra), relating to the interpretation of Section 27 of the Act, shall be applicable. No help, therefore, can be drawn, by the Counsel for the appellant, from the principle of law, laid down, in the cases, relied upon by him, and cited in this paragraph. The submission of the Counsel for the appellant, in this regard, being devoid of merit, must fail, and the same stands rejected.
22. The next question, that falls for consideration, is, as to whether, proper procedure, as envisaged by Section 27 of the Act, was followed. The answer to this question, is in the affirmative, as would be discussed hereinafter. As stated above, the Consumer Complaint bearing No.97 of 2011, was filed by Sandeep Goyal and Tripta Goyal, Complainants/Decree Holders, against the Opposite Parties/Judgment Debtors, which was accepted, in the manner, referred to above. When the order dated 06.09.2011, was not complied with, by the Judgment Debtors/Opposite Parties, the complainants/ Decree Holders filed a Criminal Petition/Execution Application, under Section 27 of the Act. Show Cause notice, containing the complete details, was issued to Mr. Sudeep Singh Sabharwal, Managing Director/Director, but he deliberately refused to accept the same. His presence was ordered to be secured through bailable and non-bailable warrants, but the same could not be executed. Ultimately, on 24.07.2012, Sh. R.K. Kakkar, Advocate, put in appearance, on behalf of the Judgment Debtors/Opposite Parties, and filed his Vakalatnama/Power of Attorney, before the District Forum, and prayed for sometime, to comply with the order, passed by the District Forum, in the Consumer Complaint bearing No.97 of 2011, but still the said order was not complied with, nor Mr.Sudeep Singh Sabharwal ) was produced before the District Forum. Later on, on 10.10.2012, Sh. R.K. Kakkar, withdrew his Power of Attorney, without filing any reply to the Show Cause notice. Thus, it was clearly proved that Show Cause notice was duly served upon Mr. Sudeep Singh Sabharwal, Judgment Debtor No.2, and he put in appearance, through his Counsel, but intentionally and deliberately failed to comply with the order dated 06.09.2011, passed in the Consumer Complaint bearing No.97 of 2011. No reply, to the Show Cause notice was filed by Mr.Sudeep Singh Sabharwal, Managing Director/Director of M/s J.S. Dwellers Pvt. Limited, Judgment Debtor No.1/Opposite Party No.1. It means that sufficient opportunity was granted to Mr. Sudeep Singh Sabharwal, Managing Director/Director, by issuance of Show Cause notice, containing the complete details, but he failed to avail of the same. The principles of natural justice, were duly adhered to, in the instant case. This clearly goes to show that Mr.Sudeep Singh Sabharwal, Managing Director/ Director of M/s J.S. Dwellers Pvt. Limited, Judgment Debtor No.1/Opposite Party No.1, intentionally and willfully failed to comply with the order dated 06.09.2011, passed in the Consumer Complaint bearing No.97 of 2011. It is, therefore, held that proper procedure, as envisaged under Section 27 of the Act was adopted in the instant case.
23. According to the appellant, he was a victim of fraud, played upon him, by other Directors of M/s J.S. Dwellers Pvt. Limited, Judgment Debtor No.1/Opposite Party No.1, who siphoned off huge money of the said Company, for their wrongful gains, for which he (appellant) had already got registered FIR, which was pending investigation, before the competent Authority. The third party i.e. the complainants/Decree Holders were not concerned, as to who siphoned off the money. They paid the amount of Rs.2.25 lacs, towards the part price of apartment, in question, to the Opposite Parties, through Mr.Sudeep Singh Sabharwal, aforesaid. When neither the apartment was allotted to the complainants, nor the same was constructed, nor the question of delivery of possession thereof ever arose, nor the amount deposited by them, was refunded to them, they filed the Consumer Complaint bearing No.97 of 2011, which was, ultimately, accepted, in the terms, referred to above. When that order was not complied with by Mr.Sudeep Singh Sabharwal, Managing Director/ Director of M/s J.S. Dwellers Pvt. Limited, Judgment Debtor No.1/Opposite Party No.1, Execution Application/ Criminal Petition was filed, wherein, the proper procedure was followed, by the District Forum, and, ultimately, sentence, referred to above, was awarded to him. The mere fact that the appellant got registered a criminal case, against the other Directors, on the ground, that they allegedly siphoned off huge money of the Company, is of no relevance, so far as the proceedings in this case, are concerned. The Consumer Foras, are established with the sole object to provide speedy, and affordable redressal to the grievances of the Consumers. Section 3 of the Act provides an additional remedy. Mere registration of FIR/case, against other Directors, could not exonerate Mr.Sudeep Singh Sabharwal, Managing Director/Director of M/s J.S. Dwellers Pvt. Limited, Judgment Debtor No.1/Opposite Party No.1, of his liability. The registration of FIR, therefore, does not have any impact, on the decision of the instant case at all. The submission of the Counsel for the appellant, in this regard, being devoid of merit, must fail, and the same stands rejected.
24. The next submission of the Counsel for the appellant, that the amount deposited by the complainants and other buyers was invested for acquiring the land and developing the project, with Mr. S.S.Multani, by way of executing the Joint Venture Agreement, aforesaid, but he dishonestly misappropriated Rs.80 lacs, and failed to provide land for development is also of no consequence. As stated above, the complainants/Decree holders paid the money to the Company, through Mr. Sudeep Singh Sabharwal, who was its Managing Director/Director, and was responsible for the allotment of apartment, construction thereof, delivery of possession of the same, or refund of the amount. Whether Mr. S.S.Multani, duped the Company, or Mr. Sudeep Singh Sabharwal, its Managing Director/Director, was none of the concerns of the complainants. Such a dispute was only between Mr. S.S.Multani, and Mr.Sudeep Singh Sabharwal, Managing Director/Director of M/s J.S. Dwellers Pvt. Limited. In case, Mr. S.S.Multani, duped the Company or Mr. Sudeep Singh Sabharwal, Managing Director/ Director, then he may proceed against him, under law, but he cannot escape his liability, so far as the complainants/Decree Holders are concerned, with regard to refund of the said amount. The submission of the Counsel for the appellant, in this regard, being devoid of merit, must fail, and the same stands rejected.
25. The order in the Complaint Case was passed on 06.09.2011. The Opposite Parties/Judgment Debtors were granted one months time, from the date of receipt of a copy of the order, to comply with the same, but they failed to do so. Now it is mid October 2013, but still the order dated 06.09.2011, has not been complied with by the Judgment Debtors/Opposite Parties. Thus, the conduct of the Judgment Debtors/Opposite Parties, could be said to be contumacious. They defied the order dated 06.09.2011, with impunity. The hard earned money, to the tune of Rs.2.25 lacs, deposited by the complainants/Decree Holdes, towards part price of the said apartment, was usurped by the Opposite Parties /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
26. One can really imagine the plight of persons, who deposited their hard earned money, to the tune of Rs.2.25 lacs, way back in 2006, but till the mid of October 2013, were not refunded the same. Under these circumstances, in our considered opinion, the District Forum was right, in awarding sentence to Mr.Sudeep Singh Sabharwal, Managing Director/Director of M/s J.S. Dwellers Pvt. Limited, Judgment Debtor No.1/Opposite Party No.1.
27. 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, warranting the interference of this Commission.
28. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with costs, quantified at Rs.5,000/-. The order of the District Forum is upheld.
29. Certified copies of this order, be sent to the parties, free of charge.
30. The file be consigned to Record Room, after completion Pronounced.
October 15, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg