National Consumer Disputes Redressal
Manohar Infrastructure & ... vs Vaneet Singh on 4 May, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 340 OF 2021 (Against the Order dated 25/03/2021 in Complaint No. 473/2020 of the State Commission Chandigarh) 1. MANOHAR INFRASTRUCTURE & CONSTRUCTIONS PRIVATE LIMITED & 2 ORS. THROUGH ITS AUTHORISED SIGNATORY, HAVING ITS REGD. OFFICE AT:- SCO NO. 139-141, SECTOR-17C, 1ST FLOOR, CHANDIGARH, 2. TARNINDER SINGH DIRECTOR, MANOHAR INFRASTRUCTURE & CONSTRUCTIONS PRIVATE LIMITED, HAVING ITS REGD. OFFICE AT: SCO NO. 139-141, SECTOR-17C, 1ST FLOOR, CHANDIGARH 3. NARINDERBIR SINGH DIRECTOR, MANOHAR INFRASTRASTRUCTURE & CONSTRUCTIONS PRIVATE LLIMITED, HAVING ITS REGD OFFICE AT: SCO NO. 139-141, SECTOR-17-C, 1ST FLOOR, CHANDIGARH ...........Appellant(s) Versus 1. VANEET SINGH S/O. SH. SURINDER SINGH, THROUGH HIS SPA HOLDER SURINDER SINGH, S/O. SH. SANTOK SINGH, H NO. 4045, SECTOR-68, MOHALI-160062 ...........Respondent(s)
BEFORE: HON'BLE DR. S.M. KANTIKAR,PRESIDING MEMBER HON'BLE MR. BINOY KUMAR,MEMBER For the Appellant : Mr. Pawan Kumar Ray, Advocate : For the Respondent : Mr. Surender Singh, Special Power of Attorney Dated : 04 May 2022 ORDER Binoy Kumar, Member The present First Appeal No. 340 of 2021 has been filed under Section 19 of the Consumer Protection Act, 1986 (for short "the Act") by Manohar Infrastructure and Constructions Private Limited and Others (hereinafter referred to as the Appellants/Opposite Parties) against Vaneet Singh (hereinafter referred to as the Respondent/Complainant) assailing the Order dated 25.03.2021 in MA/473/2020 in Consumer Complaint No. 84 of 2019 passed by the State Consumer Disputes Redressal Commission, U.T., Chandigarh (hereinafter referred to as the "State Commission"), whereby the Application filed by the Respondent/Complainant was allowed.
Brief facts of the case as narrated in the Complaint are that the Respondent/Complainant booked a Plot in the Project 'Palm Springs' of the Appellants/builder situated in Mullanpur, New Chandigarh, District-Mohali, Punjab. The Respondent stated that the Appellants assured him that they will give possession of the developed Plot within 2 years. Thereafter, the Respondent booked the Plot by filling an Application on 30.03.2012. The total consideration of the Plot was Rs.42,50,000/-. The Respondent along with Application paid an amount of Rs.12,75,000/- to the Appellants. The Respondent had paid an amount of Rs.21,25,000/- against the total consideration.
The Respondent/Complainant has averred that despite receiving 50% of the sale consideration, the Appellants/Builder failed to issue any Allotment Letter and execute Builder Buyer's Agreement. The Respondent further averred that the Appellants failed to start any development till the year 2017 and also failed to refund the amount along with interest in spite of request made by his father on his visit to the their office in the 2nd week of February 2019 and further vide e-mail dated 31.03.2019.
Aggrieved by the aforesaid acts of the Appellants/Opposite Parties, the Respondent/Complainant filed a Complaint in the State Commission with the prayer to direct the Opposite Parties as under:
To refund the amount of Rs.21,25,000/- along with interest @15% from the respective dates of deposits.
To pay compensation of Rs.2,00,000/- for causing financial loss as also escalation in prices to the Complainants.
To pay compensation of Rs.2,00,000/- for causing mental and physical harassment and agony to the Complainant on account of delay in allotment and possession, and for selling the plot without obtaining any approval/sanctions for the development of the project and deficiency of service on the part of the Opposite Party in not issuing allotment letter and in not executing the buyer's Agreement till date inspite of receiving 50% of total sale consideration, charging of hidden charges in the shape of IDC and, breach of trust.
To pay litigation expenses to the tune of Rs.50,000/-.
The parties on 24.10.2019 agreed for settlement, wherein the Appellants agreed to pay to Respondent an amount of Rs.32,20,289/-. For the sake of convenience it is reproduced as under:
"The matter has been settled between the parties. It has been agreed between the parties that the Opposite Party would pay the Complainant a sum of Rs.32,20,289/- toward the full and final settlement. The Opposite party has agreed to pay the said amount in six installments as per the following schedule:- calculated at 7%.
Sl. No. Amount(In Rs.) Date on which payment will be made Mode of Payment(Post Dated Cheques) 1 5,42,584/- 20.11.2019 Cheque dated 20.11.2019 2 5,44,622/- 20.12.2019 Cheque dated 20.12.2019 3 5,46,727/- 20.01.2020 Cheque dated 20.01.2020 4 5,37,802/- 20.02.2020 Cheque dated 20.02.2020 5 5,23,226/- 20.03.2020 Cheque dated 20.03.2020 6 5,25,328/- 20.04.2020 Cheque dated 20.04.2020 Total Rs. 32,20,289/-
The Opposite Party undertakes to handover the six posted cheques as mentioned above for paying the said amount of Rs.32,20,289/-, within 2 days from today. The Opposite Party undertakes that the said cheques would be duly honored on presentation of the same by the Complainant"
The State commission disposed of Consumer Complaint No. 84 of 2019 as per the above settlement vide Order dated 24.10.2019 which reads as under:
"Counsel for both the parties have submitted that the matter has amicably been settled between the parties. They have also placed on record schedule/statement duly signed by Counsel for both the parties, wherein, the Opposite Parties agreed to make the payment of Rs.32,20,289/- in six installments to the Complainant towards full and final settlement.
The aforesaid offer is acceptable to the Counsel for the Complainant.
The Opposite Parties are directed to make the payment strictly as per the schedule given today.
In view of above, this Complaint stands disposed of having become infructuous.
However, we make it very clear that in case, any default is committed in making the payment as per the schedule placed on record today, this Order shall be treated as an executable decree and if need be, it shall be open to the Complainant, to get this execution application revived"
The Respondent/Complainant filed a Miscellaneous Application 473 of 2020 which was instituted on 16.07.2020 for the revival of Complaint on the ground of delay as per the schedule of payment in the settlement. The details of payment and delay caused by the Appellants/Opposite Parties in making the payment as per the schedule is as under:
Amount (Rs.) To be paid on Actually paid on Delay in days 5,42,584/- 20.11.2019 20.11.2019 Nil 5,44,622/- 20.12.2019 30.12.2019 10 days 5,46,727/- 20.01.2020 20.01.2020 Nil 5,37,802/- 20.02.2020 06.03.2020 15 days 5,23,226/- 20.03.2020 09.06.2020 81 days 5,25,328/- 20.04.2020 14.07.2020 85 days After hearing all the parties and appreciating the facts of the case, the State Commission partly allowed the Application and gave Order as under:
" For the reason recorded above, this application is allowed with no Order as to cost. The Consumer Complaint bearing no.84 of 2019 is ordered to be restored/revived to its original position.
The parties are directed to appear before this Commission on 28.04.2021 for further directions in the consumer Complaint. However, as far as objection taken by the non-applicants with regard to power of attorney is concerned, it may be stated that since the said document had been placed on record by the Applicant/Complainant alongwith consumer Complaint bearing no. 84 of 2019 only, as such, in our considered opinion, it will be appropriate to deal with such objection, while deciding the same after hearing the final arguments therein."
Aggrieved by the Order of the State Commission, the Appellants/Builder filed First Appeal No. 340 of 2020 before this Commission as under:
Allow the present Appeal and set aside the interim Order dated 25.03.2021 passed by the learned State Consumer Dispute Redressal Commission, UT, Chandigarh in MA No. 473 of 2020 in Consumer Complaint No. 84 of 2019; and Pass such and other further Orders as this Hon'ble Commission may deem fit and proper in the facts and circumstances of the present case.
In the Appeal the Appellants/Builder raised the following key issues:
The State Commission should have appreciated that a consent decree cannot be reopened and there is a clear bar under the law. In case the Respondent/Complainant had any grievance the correct measure would have been the filing of an execution application.
It stated that Order 23 Rule 3A and Section 96 Sub Section 3 of Code of Civil Procedure, 1908 prohibit filing of any suit or appeal against the consent decree. The Respondent had already received entire amount of Rs.32,20,289/- (which is inclusive of principal and 7% interest).
It stated that the revival of the original Complaint could have been permitted if the Respondent/Complainant would not have benefited out of the settlement dated 24.10.2019 but since it had already received the agreed amount from the Appellant Company, the revival of the Complaint by the State Commission is illegal and arbitrary.
It stated that the 'principle of estoppels' is clearly applicable in the present case. The Respondent ought to have refused acceptance of even a single payment if he did not want to move ahead with the settlement executed on 24.10.2019. But, it accepted payments of the entire settlement amount (last instalment paid on 14.07.2020) and cleverly filed application for revival on 16.07.2020.
The Appellant by quoting the Order of Hon'ble Supreme Court in Rajeev Hitendra Pathak v. Achyut Kashinath Karekar, (2011) 9 SCC 541, decided on 19.08.2011 wherein it was held as under:
In view of the legal position, in Civil Appeal No.4307 of 2007, the findings of the National Commission are set aside as far as it has held that the State Commission can review its own orders.After the amendment in Section 22 and introduction of Section 22A in the Act in the year 2002 by which the power of review or recall has vested with the National Commission only. However, we agree with the findings of the National Commission holding that the Complaint No.473 of 1999 be restored to its original number for hearing in accordance with law."
In the above Order, it is stated that the State Commission has no power to review its own Order while dealing with the Complaint which was filed originally under the old Act of 1986.
The Appellant also cited Order of Hon'ble Supreme Court in Pushpa Devi Bhagat v. Rajinder Singh, (2006) 5 SCC 566 : 2006 SCC OnLine SC 689, decided on 11.07.2006 wherein it was held as under:
"Let us illustrate with reference to a money-suit filed for recovery of say a sum of Rupees one lakh. Parties may enter into a lawful agreement or compromise in writing and signed by them, agreeing that the defendant will pay the sum of Rupees one lakh within a specified period or specified manner or may agree that only a sum of Rs.75,000/- shall be paid by the defendant in full and final settlement of the claim. Such agreement or compromise will fall under the first Part and if defendant does not fulfil the promise, the plaintiff can enforce it by levying execution. On the other hand, the parties may submit to the court that defendant has already paid a sum of Rupees one lakh or Rs.75,000/- in full and final satisfaction or that the suit claim has been fully settled by the defendant out of court (either by mentioning the amount paid or not mentioning it) or that plaintiff will not press the claim. Here the obligation is already performed by the defendant or plaintiff agrees that he will not enforce performance and nothing remains to be performed by the defendant. As the order that follows merely records the extinguishment or satisfaction of the claim or non-existence of the claim, it is not capable of being 'enforced' by levy of execution, as there is no obligation to be performed by the defendant in pursuance of the decree. Such 'satisfaction' need not be expressed by an agreement or compromise in writing and signed by the parties. It can be by a unilateral submission by the plaintiff or his counsel. Such satisfaction will fall under the second part. Of course even when there is such satisfaction of the claim or subject matter of the suit by defendant and the matter falls under the second part, nothing prevents the parties from reducing such satisfaction of the claim/subject matter, into writing and signing the same. The difference between the two parts is this: Where the matter falls under the second part, what is reported is a completed action or settlement out of court putting an end to the dispute, and the resultant decree recording the satisfaction, is not capable of being enforced by levying execution." Where the matter falls under the first part, there is a promise or promises agreed to be performed or executed, and that can be enforced by levying execution."
11. We have heard the learned Counsel of all the parties and carefully perused the material available on record.
12. The learned Counsel of the Appellant argued that Settlement Deed was executed between the parties and as per the Deed the Appellant already refunded the deposited amount with 7% interest per annum. He also argued that review can't be done by the State Commission.
13. The learned Counsel of the Respondent argued that possession has not been given by the Appellant. He also argued that it is not a review of Order. He further argued that the Appellant even after booking the Plot in the year 2012 has not issued Allotment Letter and the Project was not authorized.
14. After analyzing the facts and circumstances of the case, we find that there is no doubt to the fact that the Appellants/Builder has failed to develop project. As per the Complaint, the Respondent/Complainant booked the Plot in the year 2012, however Appellants failed to start development till the year 2017 and it also failed to refund the amount with interest inspite of request made by Respondent and his father.
The settlement was done on 24.10.2019 for which the State Commission passed an Order on the same date. It is pertinent to note that the Appellant was required to pay the amount within 2 days from the date of settlement. However, the Appellants have refunded the amount with some delay. The amount was to be refunded via 6 cheques. The Appellant gave 1st cheque without delay, the 2nd cheque with 10 days delay, the 3rd cheque without delay, the 4th cheque with 15 days delay, 5th cheque with 81 days delay and the last cheque with 85 days delay.
As stated above, the delay in refunding the amount was nominal in first 4 payments and in the last 2 payments it was less than 3 months. Thus, overall the delay was not such to entail reviving the Complaint. We find that the Order of the State Commission in MA No.473 of 2020 improper and bad in law. The Order of the State Commission in Consumer Complaint No.84 of 2019 is only to the extent that in case of default, it is open to the Complainant to get "this execution application revived". The Complainant filed the M.A. on the ground of delay in receiving payments as per the settlement. So the right course for the Complainant should have been to go for execution application instead it files MA before the State Commission by wrongly stating that it is invoking his right for revival of complaint as per liberty granted in the Order dated 24.10.2019 passed by the State Commission. This statement of the Complainant is contrary to the Order of the State Commission. Even, the State Commission has erred in allowing the Miscellaneous Application and, therefore, its Order in M.A. is contrary to its own Order in the Complaint. The State Commission has also no authority under the Consumer Protection Act, 1986 to review its own Order.
17. Though the delay in refund of deposited amount was nominal on the part of Appellants/Builder, it would meet ends of justice if a delay compensation @7% which was agreed to in the settlement is extended to the Respondent/Complainant for the period from scheduled date of each payment as per settlement till actual payment.
18. In view of the discussion above, the Order of the State Commission in MA No.473 of 2020 in Consumer Complaint No. 84 of 2019, is set aside. The present Appeal is disposed of with the directions as under:-
The Appellant is directed to pay delay compensation @7% per annum from the scheduled dates of payment as per the settlement dated 24.10.2019 till the day of actual payment. The payment shall be made within 2 months of this Order.
Any delay beyond 2 months will attract an interest @ 9% for the same period.
...................... DR. S.M. KANTIKAR PRESIDING MEMBER ...................... BINOY KUMAR MEMBER