State Consumer Disputes Redressal Commission
Kishore Bhardwaj vs M/S Royale Empire on 11 September, 2024
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
PUNJAB, CHANDIGARH.
1.
Misc. Application No.824 of 2024
In/and
Execution Application No.58 of 2020
In
Consumer Complaint No.394 of 2016
Date of Institution : 17.02.2020
Date of Reserve : 22.08.2024
Date of Decision : 11.09.2024
Kishore Bhardwaj S/o B.D.Sharma, R/o H.No.1187, Sector 7,
Panchkula, Haryana.
....Decree Holder/Complainant
Versus
1. M/s Royale Empire, Peermuchalla, Zirakpur, Distt. SAS Nagar,
Mohali, Punjab and having its registered office at H.No.909,
Sector-9, Panchkula through its Managing Director/ Partner
Sh.Jeevan Garg S/o Sh.Atma Ram Garg.
2. Sh.Prince Garg S/o Jeewan Garg, Partner/ Authorized Signatory
of M/s Royale Empire, having its Site Office at Peermuchalla,
Zirakpur, Distt. SAS Nagar, Mohali, Punjab (presently lodged in
Patiala Jail).
3. Sh.Rohit Garg S/o Sh.Pawan Kumar Garg, Authorized person of
M/s Royale Empire, having its Site Office at Peermuchalla,
Zirakpur, Distt. SAS Nagar, Mohali, Punjab.
(email : [email protected]) (OP-1 to 3).
....Judgment Debtors/ Opposite parties
2
Execution Application No. 58 of 2020
In Consumer Complaint No.394 of 2016
2.
Execution Application No.81 of 2020
In
Consumer Complaint No.394 of 2016
Date of Institution : 28.02.2020
Date of Reserve : 22.08.2024
Date of Decision : 11.09.2024
Kishore Bhardwaj S/o B.D.Sharma, R/o H.No.1187, Sector 7,
Panchkula, Haryana.
....Decree Holder/Complainant
Versus
1. M/s Royale Empire, Peermuchalla, Zirakpur, Distt. SAS Nagar,
Mohali, Punjab and having its registered office at H.No.909,
Sector-9, Panchkula through its Managing Director/ Partner
Sh.Jeewan Garg S/o Sh.Atma Ram Garg.
2. Sh.Prince Garg S/o Jeewan Garg, Partner/ Authorized Signatory
of M/s Royale Empire, having its Site Office at Peermuchalla,
Zirakpur, Distt. SAS Nagar, Mohali, Punjab.
3. Sh.Rohit Garg S/o Sh.Pawan Kumar Garg, Authorized person of
M/s Royale Empire, having its Site Office at Peermuchalla,
Zirakpur, Distt. SAS Nagar, Mohali, Punjab.
(email : [email protected]) (OP-1 to 3).
....Judgment Debtors/ Opposite parties
Execution Application under Section 27 of
Consumer Protection Act, 1986.
Quorum:-
Mr. Harinderpal Singh Mahal, Presiding Judicial Member
Mrs. Kiran Sibal, Member 3 Execution Application No. 58 of 2020 In Consumer Complaint No.394 of 2016 Present:-
For the Decree Holder : Sh.Kishore Bhardwaj, in person. For the JDs : Sh.Udit Mendiratta, Advocate with Sh.Prince Garg & Sh.Jeevan Garg, on bail.
HARINDERPAL SINGH MAHAL, PRESIDING JUDICIAL MEMBER This order shall dispose of the above noted two Execution Applications filed by the Decree Holder under Section 27 and under Section 25 of the Consumer Protection Act 1986, respectively for compliance of the same order dated 17.04.2018 passed by this Commission in Consumer Complaint No.394 of 2016.
The facts are taken from Execution Application No.58 of 2020 filed by the DH/complainant titled as "Kishore Bhardwaj Vs. M/s Royal Empire & Ors."
Misc. Application No.824 of 2024
2. This application has been moved by the decree holder under Section 151 of CPC for recalling of the order dated 30.05.2024, vide which M.A. No.488 of 2024 in EA No.58/2020 was disposed of and surities of Ms.Anju Singla and Ms.Nikita Garg were discharged. It is alleged that the bail was granted to Jeewan Garg and Prince Garg, judgment debtors for compliance of decree dated 17.04.2018 against the sureties given by Ms.Anju Singla being the wife of Sh.Jiwan Garg and furnished the sale deed of property bearing Khata No.19/19, Land in village Peermuchalla, Zirakpur, Sub Tehsil Zirakpur and the other surety given by Ms.Nikita D/o Sh.Rajiv Puri and wife of Sh.Prince Garg and furnished the sale deed of Agriculture Land Khewat No.228/349, Village Mubarikpur, Sub-Tehsil Zirakpur and 4 Execution Application No. 58 of 2020 In Consumer Complaint No.394 of 2016 accordingly, the JD-Prince Garg was released on bail. Thereafter, both the sureties filed an application (M.A. No.991 of 2023) in EA No.81 of 2020 before this Commission on the ground that sureties are leaving abroad permanently and they wanted to withdraw their sureties filed in the present execution application. The application was objected by the decree holder and alleged that sureties are misleading this Commission by mentioning the wrong address of the judgment debtors in their bail bonds, thereby misleading the Commission but subsequently, the said application was not pressed upon by the judgment debtors. The JDs and the sureties concealed the true facts that an MA No.991 of 2023 is pending in EA No.81 of 2020. Thereafter, this Commission, vide its order dated 30.05.2024 passed in M.A. No.488 of 2024 ordered for discharge of the sureties. It is further alleged that JDs and sureties are misleading this Commission by filing the incorrect address of the JDs as H.No.909, Sector 9, Panchkula, whereas Panchkula Police on the directions passed by this Commission reported that property has been purchased by Sh.Bhushan Goyal S/o Sh.Parkash from Indian Overseas Bank in the year 2013-14 and after that Jiwan Garg and Prince Garg never resided in that house. It has been alleged by the decree holder that Ms.Anju Singla and Ms.Nikita Garg along with JDs are misleading this Commission by stating that they want to migrate to other country and don't want to stand surety anymore. But one of the surety Mrs.Nikita Garg, who is standing surety of Jeewan Garg and Prince Garg has furnished the photocopy of RC of vehicle No.CH-01-BV-0555 and surety- Rajan Garg has furnished the 5 Execution Application No. 58 of 2020 In Consumer Complaint No.394 of 2016 photocopy of RC of vehicle No. CH-01-CR-9102, which was accepted and attested by the Registrar. This act of the JDs and sureties misleading the Commission deliberately. As per Section 38(9) of the Consumer Protection Act, District Commission has the same power as that of Code of Civil Procedure, 1908 and decree holder reserves the right to be heard and to raise objections in such applications filed by the JDs. The JDs never supplied the copy of these applications to the decree holder and the counsel of the JD left the court after obtaining the next date of hearing. Learned counsel for the JDs has intentionally pressed the application bearing M.A. No.488 of 2014 in EA No.58 of 2020 despite fully knowing the fact that previously the objections were raised by the DH to a similar M.A. No.991 of 2023 in EA No.81 of 2020, which remains pending before this Commission and prays to allow the application and to recall the order dated 30.05.2024.
3. The DH, in person, with great eloquence pleaded that the order passed by this Commission to release the surety is not as per the law and surety should not be released and should be recalled back and the order should be revoked. The submission raised by the decree holder are totally baseless and are against the law as prescribed under the Cr.P.C., where the procedure for grant of bail, release of sureties is prescribed and this it should be kept in mind that this is not a criminal court but this is an executing court exercising the powers of Magistrate under Section 72 and 73 of the Consumer Protection Act, where some criminal powers bestowed upon the Forum by the legislature. It is very much clear that under 6 Execution Application No. 58 of 2020 In Consumer Complaint No.394 of 2016 Section 72, no doubt JDs, who do not comply with the order of the court can be punished and taken into custody if he is not complying with the order and even conviction can be granted to him. However, keeping in mind that where JDs are ready to make the payments and wants to discharge their obligation as per the decree should be given a chance to do so instead of sending them behind the bars and bail bonds are taken only in those circumstances and where JDs need some time to make the payment and to fulfill the decree.
4. Similarly, in this case, earlier both the JDs i.e. Sh.Jeewan Garg and Sh.Prince were sent to judicial custody and when they appeared in the court, they undertook that they will make the payments and in order to give them a chance, they were released on bail just to make their presence in the court on every hearing otherwise they are not hard core criminals. Taking of the sureties and granting of the bail is purely the discretion of the court and opposite party has nothing to do with it. The procedure is the same but taking of the surety is granted under Cr.P.C. Sections 436 to 450. As per Section 441(a), certain declaration was to be made by the surety. Section 442 is discharge of the accused from the custody when he furnishes the bond. Section 443 and 444 specifically deals with the acceptance of the bond and discharge of the sureties, which are reproduced as under:
"443. Power to order sufficient bail when that first taken is insufficient, - If, through mistake, fraud, or otherwise, insufficient sureties have been accepted, or if they afterwards become insufficient, the Court may issue a warrant of arrest directing that the person released on bail be brought before it and may order him to find sufficient sureties, and, on his failing so to do, may commit him to jail.7
Execution Application No. 58 of 2020 In Consumer Complaint No.394 of 2016
444. Discharge of sureties - (1) All or any sureties for the attendance and appearance of a person released on bail may at any time apply to a Magistrate to discharge the bond, either wholly or so far as relates to the applicants. (2) On such application being made, the Magistrate shall issue his warrant of arrest directing that the person so released be brought before him.
(3) On the appearance of such person pursuant to the warrant, or on his voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as relates to the applicants, and shall call upon such person to find other sufficient sureties, and, if he fails to do so, may commit him to jail"
5. As per Section 443, when the court sees that the surety given by the person in custody is insufficient, he may call for the sufficient sureties and as per Section 444 it describes that if any surety did not want to stand as a surety for person in custody and wanted to get release of the bail bond, then he may appear before the Magistrate to release his bond with the prayer that he does not want to stand anymore as a surety for the person in custody and magistrate may arrest accused again. This is only for the satisfaction of the court which is required in such like cases. If the court feels satisfied that surety given by the person is proper and sound, it may accept the bond and if not it may call for another surety. Similarly, if the surety states that he does not want to give any further surety for the same then it is the duty of the court to discharge the bond and arrest the person immediately.
6. Now coming back to the facts, in this case also, the sureties were given and after some time they moved an application that they 8 Execution Application No. 58 of 2020 In Consumer Complaint No.394 of 2016 do not want to stand further as surety for Sh.Jeewan Garg and Sh.Prince Garg and they be discharged immediately. The application of the sureties were allowed and the JDs i.e. Sh.Jeewan Garg and Sh.Prince Garg were directed to furnish the fresh bail bonds, which they furnished immediately which as per Registrar are sound and this is also adhere to mention that both the JDs are regularly attending the court and also making the payments in certain cases, where they are JDs and they have not even violated the conditions of surety bond so this application moved by the decree holder to recall the order dated 30.05.2024, where their sureties were be discharged and received the fresh bail bond is totally unwarranted and uncalled for and is without any merit. Accordingly, the application is hereby dismissed.
Main Execution
7. This execution application has been filed by the Decree Holder/Complainant for compliance of the order dated 17.04.2018 passed by this Commission in Consumer Complaint No.394 of 2016, whereby the following order was passed against the opposite parties i.e. JDs:
"10. Sequel to the above, we accept the complaint and direct the Ops as under:-
(i) Ops will deliver the possession of flat No.501 in Block F in Royale Apartments, Peermuchalla, Zirakpur to the complainant, complete in all respect including the completion/occupancy certificate from the Competent Authority within a period of 3 months from the date of order, subject to payment of the balance amount of Rs.4 lacs by the complainant, 9 Execution Application No. 58 of 2020 In Consumer Complaint No.394 of 2016 within a period of 2 months from the date of order.
Ops will apprise the complainant with regard to the completion/occupancy certificate from the Competent Authority within 2 months and after receiving this information within a period of 1 month, the complainant will deposit the balance amount.
(ii) Ops will also pay interest on the deposited amount @8% p.a. from 06.09.2013 till the date of delivery of the possession. The amount to be paid by the complainant will be adjusted from the interest amount to be paid by the Ops to the complainant.
(iii) Ops will pay Rs.50,000/- as compensation on account of unfair trade practice on the part of the Ops and for causing mental tension and harassment to the complainant;
(iv) To pay Rs.21,000/- as litigation costs.
OR
(a) In the alternative, in case the possession of the flat
is not delivered within the stipulated period referred above, then Ops will pay the amount deposited by the complainant with Ops alongwith interest @12% p.a. from the various dates of deposit till payment.
(b) the complainant will also execute the cancellation of the sale deed executed by the Ops in favour of the complainant at the expense of the Ops.
(c) Ops will pay Rs.50,000/- as compensation on account of unfair trade practice on the part of the Ops and for causing mental tension and harassment to the complainant;
(d) To pay Rs.21,000/- as litigation costs.
The above directions be complied by the Ops within a period of 3 months from the date of receiving of the copy of the order, failing which the complainant will be at liberty to execute the order by filing application under Sections 25 & 27 of the CP Act against the Ops."
10Execution Application No. 58 of 2020 In Consumer Complaint No.394 of 2016
8. Now, the execution application has been preferred by the decree holder claiming that the order passed by this Commission has not been complied with by the judgment debtors. After notice, judgment debtors appeared before this Commission. During the course of execution proceedings on 28.07.2023, it has been stated by the judgment debtors that the Registry of the flat has already been executed in favour of the DH and they cannot recover the money without the consent of the DH. Learned counsel for the JD undertakes that if the DH agrees, then they will sell the flat through DH to the third party and the money received therefrom will be directly deposited in the account of the DH. Then the Decree Holder gave his no objection if the application is allowed and agreed to sell the flat, as undertaken by the counsel for JD.
9. We have heard the contentions of the parties and have carefully gone through the record as well as written arguments filed by the decree holder. We have also given our thoughtful consideration to the same.
10. The decree holder at the very outset has vehemently contended that since the JDs after the possession of the flat raised a demand of Rs.8,65,000/- and this issue was contested by the decree holder by filing the consumer complaint, where the Commission observed that this payment is over and above the agreed amount is not proper, which amounts to unfair trade practice and the decree holder is not bound to pay the same. The order passed by this Commission has attained the finality. He further averred that since the JDs failed to adhere to the directions of the court passing the 11 Execution Application No. 58 of 2020 In Consumer Complaint No.394 of 2016 decree compelling the decree holder to institute the present execution application. He also argued that Secured Creditor Bank has also moved against the JDs-Royal Empire before the DRT, vide which stay order was granted which comprises of Projects of Royal Empire and Royal Apartment but despite that sale deed was executed for the unfinished flat on 10.05.2013.
11. He further argued that an application was also filed by the JDs-Sh.Jeewan Garg and Sh.Prince Garg for recalling the stay order which shows that JD never handed over the physical possession to the decree holder despite the registration of the sale deed till the filing of the application. The decree holder further argued that the JDs have also failed to apprise the decree holder regarding the Completion/ Occupancy Certificate of the flat within two months from the competent authority and to deliver the possession that is why JDs are bound to comply with the directions as specified by this Commission in its order dated 17.04.2018. He also apprised the court that a show cause notice was served upon JD-Prince Garg in this execution application. The JD-Prince Garg appeared before this Commission on 06.03.2020 and on his request he was given time to file reply/objections to the execution application. Thereafter, he was released on parole from Patiala Jail in March, 2020 but despite that fact he did not appear before this Commission and order was passed by this Commission for attachment of the JDs land. The decree holder laid much stress on this fact that the JDs is asking the decree holder to cooperate with the JDs for sale of the flat and as much 12 Execution Application No. 58 of 2020 In Consumer Complaint No.394 of 2016 amount fetch from the sale of the flat will be transferred to the decree holder to satisfy the decree and they will also pay the interest also.
12. The careful perusal of the written arguments and listening the oral submissions, it transpires that the decree holder is mainly relying on the zimni orders of this Commission passed in this execution application, which has already been taken care of and need not to be discussed again when it has already been discussed during the course of proceedings of the execution application.
13. Now, the moot question that arises at this stage is that on what ground the decree holder instituted the complaint against the judgment debtors and what relief was given. The perusal of the order reveals that the judgment debtors were directed to deliver the flat to the decree holder within three months, subject to payment of the balance amount of Rs.4 lacs by the complainant within two months and the judgment debtors/opposite parties will pay the interest @8% per annum from 06.09.2013 till the date of delivery of the possession and compensation to the tune of Rs.50,000/- and Rs.21,000/- as litigation expenses or in the alternative to return the deposited amount along with interest @12% per annum from the various dates of deposit till payment.
14. Now, the decree holder/complainant filed the complaint mainly on the ground that he has been asked by the judgment debtors to pay extra amount of Rs.8,65,000/-, which is not proper and even after execution of the sale deed. By taking all these considerations, the State Commission passed the order and directions were given to the decree holder to deposit Rs.4,00,000/-, which were due from him and 13 Execution Application No. 58 of 2020 In Consumer Complaint No.394 of 2016 judgment debtors were directed to complete the flat in all and to hand over the possession and in the alternative, the other relief was granted, which has already been discussed above. The perusal of the decree reveals that the judgment debtors were directed to hand over the proper possession, subject to the payment of Rs.4 lacs. However, the perusal of the case it has been observed that the possession is with the decree holder and sale deed has already been executed before filing of the complaint. During the execution proceedings, the judgment debtors stated that they can sell the flat of the decree holder, if the decree holder agrees and they will pay the money whatever the amount of sale consideration. In consequence of the same, efforts were made by the judgment debtors but the flat could not be sold since the payment is to be made in favour of the decree holder and possession is also with him, who is already creating hindrance for settling the score. It is also observed by this Commission during the proceedings that the decree holder is much more concerned for the interest accrued upon the total cost of the flat, paid by him and has no concern with the flat. Though, he already had the possession of the flat and legal sale deed is executed in his favour, then, in that situation, where the sale deed has already been executed much prior to the filing of the complaint and possession was also delivered at that time but now at this stage it is not tenable to pass an order regarding further possession of the flat when the decree holder himself failed to comply with the main part of the decree and now he is pressing upon on 2nd part of the decree, which is only subsequent in time. It was the prime duty of the decree holder 14 Execution Application No. 58 of 2020 In Consumer Complaint No.394 of 2016 to fulfill his own responsibility and the directions given by the decreeing court regarding the deposit of requisite amount of Rs.4,00,000/- and then to come forward for execution of the decree regarding the completion of the flat and other liabilities. Though, learned counsel for the decree holder pressed much hard on the issue that the judgment debtors have not taken Completion/Occupation Certificate as per the directions given in the court in the decree, it is pertinent to mention here that this property is attached under the attachment orders of this Commission on the instance of the decree holder and in attachment before the DRT, as admitted by the decree holder himself. In such eventuality, it was not possible for the judgment debtors to have the paper work completed from the authorities. Since the property was under attachment and the authorities also look forward for a clean property to issue said Completion/Occupation Certifies. However, it is observed that when the legal title of the property as well as possession of the flat is with the decree holder then the Completion/Occupation Certificate will not cause any hindrance in his peaceful enjoyment of the flat.
15. The Consumer Protection Act has been enacted by the legislature with the benevolent intention to safeguard the interest and for the betterment of the gullible consumers who suffered at the hands of the service providers or sellers of goods and to redress the grievance of the consumer a summarized procedure has been given under the Consumer Protection Act and this is not for enrichment of the consumers by adopting the unfair means by obtaining the decree from the Consumer Forums. Seeing the sequence of facts it can be 15 Execution Application No. 58 of 2020 In Consumer Complaint No.394 of 2016 clearly observed that once a person who has already executed the sale deed in his favour and the title of the flat has been passed over to him then how he is entitled for the amount deposited by him.
16. It is pertinent to mention here that as per the order, judgment debtors have also moved an application bearing M.A. No.257 of 2024 on 28.02.2024, in which JDs have categorically stated that the judgment debtors have already executed the sale deed/ registry in favour of the decree holder and the decree holder has filed the case of refund of the deposited amount, which is not maintainable and is against the law.
17. From the above discussions, we are of the opinion that the orders passed in the complaint primarily for the possession and in the alternative to refund the amount. However, the prayer for refund of the amount was not maintainable as the cause of action ceased when he received the possession of the flat and sale deed was executed.
18. Sequel to the above, we are of the considered opinion that since the judgment debtors have already complied with their part of the obligation by handing over the possession and then executing the sale deed and that is much prior to the filing of the complaint, therefore, nothing survives. As observed above, the decree holder, who has failed to fulfill their part of the obligation is not entitled for the execution of the decree. This execution application does not carry any merit and accordingly the same is disposed of without further any order.
16Execution Application No. 58 of 2020 In Consumer Complaint No.394 of 2016 Execution Application No.81 of 2020
19. This execution application has been filed by the Decree Holder under Section 25 of the Consumer Protection Act, 1986 for compliance of the same order under execution. Since, the EA No.58 of 2020 has been disposed of as discussed above, this execution application is also disposed of on the similar lines/terms.
20. Since the main application is decided, the pending application, if any, is also disposed of.
(HARINDERPAL SINGH MAHAL) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER September 11th ,2024 parmod