National Consumer Disputes Redressal
M/S Dreamland Promoters & vs Pramod Kumar on 5 July, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO.
3317 OF 2011
WITH
I.A. NO. 1 OF 2011
(FOR STAY)
(From the order dated
18.08.2011 in Appeal No. 98/2011
of the State
Commission, Delhi)
M/S DREAMLAND
PROMOTERS &
CONSULTANT PVT. LTD.
3A, 3RD
FLOOR, M-6 PLAZA,
PLOT NO.6, JASOLA
DISTRICT CENTRE
NEW DELHI
110025 Petitioner
Vs.
PRAMOD KUMAR
A-75, G-2,
RAMPRASTHA,
GHAZIABAD,
UTTAR PRADESH
Respondent
BEFORE:
HONBLE
MR. JUSTICE V.B.
GUPTA, PRESIDING MEMBER
HONBLE
MR. VINAY KUMAR, MEMBER
For the Petitioner (s) : Mr. Gulshan
Sharma, Advocate
For the Respondent(s) : Mr. Madhurendra Kumar, Advocate with
Mr. Pramod Kumar, in person
Pronounced on :
5th July, 2012
ORDER
PER JUSTICE V.B. GUPTA, PRESIDING MEMBER In this revision petition, there is challenge to order dated 18.8.2011, passed by Delhi State Consumer Disputes Redressal Commission, vide which appeal of the petitioner was dismissed.
2. Brief facts are that petitioner/opposite party is carrying the business of selling plots/flats. Respondent/complainant booked a two bed-room apartment in Willows in the scheme of petitioner on 6.6.2006 and deposited Rs.3,50,000/- by cheque. On 19.1.2007, respondent also deposited Rs.3,50,000 as the second installment with the petitioner. The flat was to be delivered within 12 months from the date of application. But despite expiry of three years, possession of flat has not been delivered nor it has been pointed out as to when it will be delivered or what is the status of the construction of the flat.
3. In its written statement, petitioner has admitted that respondent had paid Rs.3,50,000/- initially on 6.6.2006 and subsequently paid Rs.3,50,000/- on 19.1.2007 by way of cheques. However, due to reasons best known to the respondent, he has not paid subsequent installments, and now has filed this complaint only to harass and defame the petitioner.
4. District Consumer Disputes Redressal Forum (East), Delhi (for short as District Forum) allowed the complaint and passed the following directions ;
1. The OP shall refund Rs.7 lacs to the complainant together with interest @ 10% per annum from the date of deposit to the date of realization.
2. The OP shall also pay Rs.50,000/- (Rs. Fifty Thousand only) as compensation for mental agony, harassment and sheer suffering by the complainant inclusive of litigation charges.
5. Aggrieved by the order of District Forum, petitioner filed an appeal before the State Commission, which was dismissed vide impugned order.
6. We have heard learned counsel for the parties and have gone through the record.
7. Respondent in para 5 of its complaint has made the averments that there has been no construction at the site till date. Petitioner, in its written statement has not specifically denied these averments made in the complaint, that there has been no construction at the site till date. District Forum has given the following findings on this issue stating that ;
The OP has not filed any evidence to show it nor it has been mentioned in the affidavit filed by the OP as to what is the status of the construction in regard of the flats out of which the complainant booked one flat for which he has paid Rs.7,00,000/-. It is very strange that despite the receipt of the huge amount why the OP has not told the status of the construction of the flat. Our attention has been invited by the learned counsel for the complainant with regard to the terms and conditions mentioned in the registration form. The condition no.3 clearly laid down that if in case the company is not in a position to make offer of allotment for the flat within a period of 12 months from the date of application for any reason whatsoever, the complainant will be entitled to refund the advance amount together with the interest @10% per annum.
The main thrust of the argument of the OP is that by virtue of the terms and conditions of the agreement both the parties are bound by it. This condition is in favour of the complainant and against the OP which clearly laid down that in case the flat is not delivered within 12 months from the date of application, complainant would be entitled to get interest @ 10% p.a. As stated earlier, the OP has not pointed out anything with regard to the status of the construction nor it has been mentioned as to when the flat will be delivered to the complainant.
9. Main contention of learned counsel for petitioner is that, petitioner was not provided any opportunity to plead his defence.
10. This contention is against the record. State Commission in its impugned order has observed ;
6. One of the contentions in the appeal is that the learned District Forum has not provided or offered any opportunity to the appellant to plead its defence and to bring true and correct facts before the Forum and acted in haste in proceedings against the appellant that too without hearing the arguments and believing on one side statement of the respondent. These contentions are belied on the face of the record as the appellant had been given due opportunity of defending the case, his written statement is on record, he was granted time to lead evidence and both parties were heard before the case was finally disposed of.
7. The appellant has also raised a ground that the District Forum failed to appreciate that no material was filed by the respondent and erroneously concluded that the appellant has neither any land nor received any land for the projects of the flats. This is no so. Observations of the learned District Forum are that the appellant has not filed any evidence as to what is the status of construction with regard of the flats nor it has been mentioned as to when the flat will be delivered to the complainant. Hence this ground is misconceived.
11. It is well settled that under Section 21 (b) of the Consumer Protection Act, 1986, scope of revisional jurisdiction is very limited.
12. Honble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.
13. Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of the Act.
Since, two fora below have given detailed and reasoned orders which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction.
14. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, 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 laws delay and bringing bad name to the judicial system.
15. 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, goes on filing meritless petitions in different foras. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree must be dealt with heavy hands.
16. Now question which arises for consideration is as to what should be the quantum of costs which should be imposed upon the petitioner for dragging the respondent upto this fora when petitioner 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.
17. 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 observed ;
45. We are clearly of the view that unless we ensure that wrongdoers 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 courts otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases.
46. Usually the court should be cautious and extremely careful while granting ex-parte ad interim injunctions. The better course for the court is to give a short notice and in some cases even dasti notice, hear both the parties and then pass suitable biparte orders. Experience reveals that ex-parte interim injunction orders in some cases can create havoc and getting them vacated or modified in our existing judicial system is a nightmare. Therefore, as a rule, the court should grant interim injunction or stay order only after hearing the defendants or the respondents and in case the court has to grant ex-parte injunction in exceptional cases then while granting injunction it must record in the order that if the suit is eventually dismissed, the plaintiff or the petitioner will have to pay full restitution, actual or realistic costs and mesne profits.
47. If an ex-parte injunction order is granted, then in that case an endeavour should be made to dispose of the application for injunction as expeditiously as may be possible, preferably as soon as the defendant appears in the court.
48. It is also a matter of common experience that once an ad interim injunction is granted, the plaintiff or the petitioner would make all efforts to ensure that injunction continues indefinitely. The other appropriate order can be to limit the life of the ex-parte injunction or stay order for a week or so because in such cases the usual tendency of unnecessarily prolonging the matters by the plaintiffs or the petitioners after obtaining ex-parte injunction orders or stay orders may not find encouragement. We have to dispel the common impression that a party by obtaining an injunction based on even false averments and forged documents will tire out the true owner and ultimately the true owner will have to give up to the wrongdoer his legitimate profit. It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have heardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh Vs. State of Punjab (2000) 5 SCC 668 this court was constrained to observe that perjury has become a way of life in our courts.
49. It is a typical example how a litigation proceeds and continues and in the end there is a profit for the wrongdoers.
50. Learned Amicus articulated common mans 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.
18. Accordingly, the present petition is hereby dismissed with punitive costs of Rs.20,000/- (Rupees twenty thousand only). This costs be paid to the respondent who is being deprived of fruit of the decree obtained by him many years ago.
19. Accordingly, petitioner is directed to deposit the aforesaid costs by way of demand draft in the name of respondent, within four weeks with this Commission. In case, petitioner fails to deposit the said costs, within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.
20. The costs so deposited shall be paid to the respondent only after expiry period of appeal/revision preferred, if any.
21. Pending application also stands disposed of.
22. List on 17.8.2012 for compliance.
...J (V.B. GUPTA) PRESIDING MEMBER ...
(VINAY KUMAR) MEMBER Sonia/