State Consumer Disputes Redressal Commission
Mrs. Surender Nehra (Deceased), vs 1. M/S Omaxe Ltd., on 9 September, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 372 of 2013 Date of Institution : 30.08.2013 Date of Decision : 09/09/2013 Mrs. Surender Nehra (deceased), through L.R. Sh. Sanjeev Nehra, resident of 2237, Sector 15C, Chandigarh. Appellant/complainant Versus 1. M/s Omaxe Ltd., SCO 143-144, Sector 8C, Chandigarh, through its Manager. 2. M/s Omaxe Ltd., 7, Local Shopping Centre, Kalkaji, New Delhi, through its M.D. and Chairman. ....Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
Argued by: Sh. Atul Nehra, Advocate for the appellant.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 02.08.2013, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the application, under Section 13(5) of the Consumer Protection Act, 1986 (hereinafter to be referred as the Act only), read with Section 340/344 of the Criminal Procedure Code (Cr.P.C.), read with Sections 191, 193 and 195 of the Indian Penal Code, filed by the complainant (now appellant), during the pendency of the Consumer Complaint.
2. The facts, in brief, of the Consumer Complaint are that, the complainant-Mrs. Surender Nehra (now deceased), was allotted apartment bearing no.302, 3rd Floor, Dendera Tower, The Nile at Sohna Road, Gurgaon, which was to be constructed by the Opposite Parties. Buyers Agreement dated 27.04.2005, was executed between Mrs. Surender Nehra (now deceased) and the Opposite Parties. The possession of apartment was to be delivered, to the complainant, on or before 27.11.2007 (infact 27.10.2007).
It was also agreed to, between the Parties, that, in case, the possession of apartment, was not delivered, by the stipulated date, the Opposite Parties were to pay Rs. 5/- per square feet, per month, for the period of delay, as compensation. The possession of apartment was not delivered to the complainant, on or before 27.10.2007. The complainant sold the apartment, to Sanjeev Grover and Kanika Mittal, on 22.05.2009, and the possession of the same, was delivered to them on 15.06.2009. On 23.05.2011, Mrs. Surender Nehra, complainant (now deceased), filed the complaint, praying that she be paid Rs.1,76,970/-, as compensation, on account of delay in delivery of possession of the apartment, in question.
3. Smt. Surender Nehra, complainant, died and vide order dated 09.01.2012, her legal heir Sanjeev Nehra, was impleaded in her place.
4. During the pendency of Consumer Complaint, the complainant filed an application under Section 13(5) of the Act, read with Section 340/344 Cr.P.C., read with Sections 191, 193 and 195 of the Indian Penal Code, for appropriate action, against the Opposite Parties, for filing false affidavit, on oath, by way of evidence, before the District Forum. It was stated that the affidavit dated 25.11.2011 of Harsh Bhargav, Legal Manager of the Opposite Parties was submitted before the District Forum, by way of evidence, wherein it was stated that the flat (infact apartment), in question, was ready for possession, within time i.e. on 27.10.2007. It was further stated that the documents, placed on record, by the Opposite Parties, interalia Annexures C-3 and C-11 also showed that the apartment was not complete, within the stipulated time. It was further stated that Annexure C-11, letter dated 28.05.2008, sent to the complainant, by the Opposite Parties, clearly indicated that the apartment allotted, in her favour, was still in the final stage of completion, as also the final finishing touches of the same were to be taken up shortly, which meant that the same (apartment), was not ready for delivery of possession on or before 27.10.2007, i.e. within 30 months, from 27.04.2005, the date of execution of Apartment Buyer`s Agreement. It was further stated that the Opposite Parties, willfully and intentionally made false statement, in the affidavit of Mr. Harsh Bhargav, their Manager Legal, which amounted to perjury and contempt. Accordingly, a prayer was made, to hold an enquiry, as envisaged by Section 340 Cr.P.C. and file a complaint under Sections 191, 193 and 195 of the Indian Penal Code, in a Competent Court of Criminal Jurisdiction, against the Managing Director of the Opposite Parties.
5. In reply to the application, the Opposite Parties, stated that the Consumer Complaint was not maintainable, as it was not supported by an affidavit. It was further stated that the application had been filed by the complainant, just with a view to delay the proceedings. It was further stated the parties were bound by the terms and conditions of the Apartment Buyer`s Agreement dated 27.04.2005, according to which, the possession of apartment, in question, was to be delivered, within a period of 30 months, from the date of execution of the same, and, in case, of delay, in delivery of possession thereof, compensation @Rs. 5/- per square feet, per month, for the period of delay, was to be paid to the complainant. It was further stated that the annexures referred to, by the complainant, did not make out any case, in her favour. It was further stated that the complainant was not a consumer, as the apartment, in question, had already been sold by her, to Sanjeev Grover and Kanika Mittal, on 22.05.2009, and the possession of the same, was delivered to them on 15.06.2009. It was further stated that this fact was concealed by the complainant, at the time of filing the complaint. It was further stated that since the complainant approached the District Forum, by concealment of material facts, she was not entitled to any relief.
6. After hearing the Counsel for the parties, on the application, and, on going through the record of the case, the District Forum, dismissed the same (application), as stated above.
7. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
8. We have heard the Counsel for the appellant, at the preliminary stage, and, have gone through the record of the case, carefully.
9. The Counsel for the appellant/complainant, submitted that there was no necessity, as per the provisions of law, to issue notice of the application, under Section 340 of the Cr.P.C., filed by the complainant, to the Opposite Parties, but the District Forum, acted contrary to the same. He further submitted that the District Forum, besides deciding the application, also touched the merits of the case, which was not permissible under law. He further submitted that the District Forum was only required to hold a prima-facie inquiry, if it wanted to do so, and after recording the conclusion, that it was expedient, in the interests of justice, to proceed against the Managing Director of the Opposite Parties, as envisaged by Section 340 Cr.P.C., and file a complaint under Sections 191, 193 and 195 of the Indian Penal Code. He further submitted that the order of the District Forum, being illegal, is liable to be set aside.
10. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, and record of the case, we are of the considered opinion, that the appeal is liable to be dismissed at the preliminary stage, for the reasons to be recorded hereinafter. Admittedly, the apartment, in question, was allotted, to Mrs. Surender Nehra (now deceased). Apartment Buyer`s Agreement Annexure C-2, was also executed between the parties, on 27.04.2005. According to the Apartment Buyer`s Agreement Annexure C-2, the possession of apartment was to be delivered, within 30 months, from the date of execution of the same, i.e. on or before 27.10.2007. In paragraph number 3 of the complaint, it was stated by the complainant, that the possession of apartment, was to be delivered within 30 months, from the date of execution of the Apartment Buyer`s Agreement Annexure C-2. In reply to this paragraph, in the written version, by way of affidavit, on merits, it was stated by the Opposite Parties that it was a matter of record. Again in paragraph number 4 of the complaint, it was stated by the complainant, that the Opposite Parties were to deliver the possession of apartment, after it was ready to use and occupation, by 27.11.2007 (infact 27.10.2007), and, in case, of delay, in delivery of possession thereof, compensation @ Rs. 5/- per square feet, per month, for the period of delay, was to be paid to her (complainant). In reply to paragraph number 4 of complaint, the Opposite Parties, in their written version, by way of affidavit, stated that it was a matter of record. It was further stated that the possession, in the present case was to be delivered as per the agreed terms and conditions. In paragraph number 6 of the reply, filed by way of affidavit by Mr. Harsh Bhargav, Manager Legal of the Opposite Parties, it was stated that the apartment, in question, was ready for possession, within the time stipulated, but the complainant was not inclined to take possession of the same, as it seemed that she had only purchased the same, for investment purpose, and, therefore, when the time for possession came, she never took the same, and rather, sold the same to Mr. Sanjeev Grover, s/o Mr. Om Parkash Grover, jointly with Ms. Kanika Mittal, w/o Mr. Sanjeev Grover, residents of 604-A, Parsavnath Green Ville, Sohna Road, Gurgaon. It is evident, from Annexure C-11 dated 28.05.2008, which was written by the Opposite Parties, to Mrs. Surender Nehra, Original allottee/complainant, that the apartment allotted, in her favour, was in the final stage of completion. It was also mentioned, in the said letter, that the final finishing touches of the said apartment, would be taken up shortly. It was further mentioned, in the said letter that, on completion of codal formalities, possession of the apartment, in question, would be given, as per the terms and conditions of the Apartment Buyer`s Agreement Annexure C-2. Reply, which was filed by the Opposite Parties, by way of affidavit of Mr. Harsh Bhargav, their Manager Legal, was to be read, as a whole, and not in piecemeal. When the reply filed, by way of affidavit of Mr. Harsh Bhargav, Manager Legal of the Opposite Parties, is read as a whole, then only one and the one conclusion, that could be arrived at, is that the intention of the Opposite Parties was to convey that the parties were bound by the terms and conditions of the Apartment Buyer`s Agreement Annexure C-2. Not only this, time was not the essence of contract, as, in case of non-delivery of possession of the apartment, by the stipulated date i.e. 27.10.2007, compensation @ Rs. 5/- per square feet, per month, for the period of delay, was to be given/paid by the Opposite Parties, to the complainant. When the reply filed by the Opposite Parties, is read as a whole, alongwith the other record, then it could be said that no intentional and deliberate false statement was made by Mr. Harsh Bhargav, Deponent/ Manager Legal of the Opposite Parties, in his affidavit. Under these circumstances, it could not be said that Mr. Harsh Bhargav, Manager Legal of the Opposite Parties, had prima facie committed the offences under Sections 191, 193 and 195 of the Indian Penal Code, and a Criminal Complaint was required to be filed against him, or the Managing Director of the Opposite Parties.
11. Not only this, it is clear from Section 340 of the Criminal Procedure Code, that if any Court/Tribunal is of opinion that it is expedient, in the interests of justice, that an enquiry should be made into any offence, referred to in Clause
(b) of Subsection (1) of Section 195, which appears to be committed in, or in relation to a proceeding, in that Court/Tribunal, or as the case may be, in respect of a document produced or given, in evidence, in a proceeding in that Court/Tribunal, such Court/Tribunal may, after such preliminary enquiry, if any, as it thinks necessary, record a finding to that effect, make a complaint thereof, in writing, and send it to a Magistrate of the First Class having Jurisdiction. The District Forum was required to record a conclusion that it was expedient, in the interests of justice, to hold an inquiry, as envisaged by Section 340 Cr.P.C. The District Forum, in our considered opinion, after scanning the record, was of the opinion, that it was not expedient, in the interests of justice, to hold an inquiry, in the application, filed under Section 340 of the Criminal Procedure Code, and file complaint, against the Opposite Parties, under Sections 191, 193 and 195 of the India Penal Code. The discretion exercised by the District Forum, that it was not expedient, in the interests of justice, to hold an inquiry, in the application, under Section 340 of the Criminal Procedure Code, against the Opposite Parties, cannot be said to be, in any manner, arbitrary or perverse. The Court/Tribunal has to exercise judicial discretion, in the light of all the relevant circumstances, when it determines the question of expediency. The Court/Tribunal orders prosecution, in the larger interest of administration of justice, and not to gratify the feelings of personal revenge, or vindictiveness or to serve the ends of a private party. Too frequent prosecutions for such offences, tend to defeat its very object. It is only in glaring cases of deliberate falsehood, where conviction is highly likely that the Court should direct prosecution. Under these circumstances, it cannot be said that the order of the District Forum, is, in any way, illegal or arbitrary.
12. Not only this, the complainant-Mrs. Surender Nehra (deceased), has already sold the apartment, in question, to Mr. Sanjeev Grover, s/o Mr. Om Parkash Grover, jointly with Ms. Kanika Mittal, w/o Mr. Sanjeev Grover, residents of 604-A, Parsavnath Green Ville, Sohna Road, Gurgaon, on 22.05.2009, and the possession of the same, was delivered to them on 15.06.2009. At the time of transferring the apartment, in favour of Mr. Sanjeev Grover and Ms. Kanika Mittal, an affidavit Annexure R-2 was executed by the complainant- Mrs. Surender Nehra, when she was alive, whereby, all the rights, which she had in the same (apartment), were transferred, in favour of Mr. Sanjeev Grover, s/o Mr. Om Parkash Grover, jointly with Ms. Kanika Mittal, w/o Mr. Sanjeev Grover. In view of the undertaking in the affidavit aforesaid, only the vendees- Mr. Sanjeev Grover, s/o Mr. Om Parkash Grover, and Ms. Kanika Mittal, w/o Mr. Sanjeev Grover, could claim compensation, for delay, if any, in respect of the apartment, in question. After selling the apartment, in favour of the vendees on 22.05.2009 and executing the affidavit Annexure R-2, aforesaid, Mrs. Surender Nehra (now deceased) had possibly no locus standi to file the Consumer Complaint. It could be said to be one of the factors, which weighed with the District Forum, to come to the conclusion, that it was not expedient, in the interests of justice, to hold an inquiry and launch prosecution for the offences punishable under Sections 191, 193 and 195 of the India Penal Code, against Harsh Bhargav.
13. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
14. Certified copies of this order, be sent to the parties, free of charge.
15. The appeal file be consigned to Record Room, after due completion Pronounced.
September 9, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg