State Consumer Disputes Redressal Commission
Uppal Housing Ltd., vs 1. Dr. Prithipal Singh on 6 November, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 312 of 2012 Date of Institution : 13.09.2012 Date of Decision : 06/11/2012 Uppal Housing Ltd., 5th floor, South Tower, NBCC Place, Bhishma Pitamah Road, Lodhi Road, New Delhi-110003, through Sh. Ajay Managal Appellant/Opposite Party V e r s u s 1. Dr. Prithipal Singh, S/o Sh. Inder Singh, resident of 25267, Elena Road, Los Altos Hills, CA94022 (USA). 2. Mrs. Rajinder Kaur, wife of Dr. Prithipal Singh, S/o Sh. Inder Singh, resident of 25267, Elena Road, Los Altos Hills, CA94022 (USA) Both through their duly authorized representative Sh. Navneet Singh, resident of H.No.706, Sector 25, Panchkula. ....Respondents/Complainants Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Argued by: Sh. Dinesh Gupta, Advocate for the appellant.
Sh. Gunjan Rishi, Advocate for the respondents/ caveators.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the majority orders dated 07.05.2012 and 06.08.2012, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only), in Criminal Petition no.90 of 2011.
2. The facts, in brief, are that the complainants (now respondents), wanted to buy a luxury apartment, for themselves, in India, for their peaceful abode. Allured by the advertisement, given by the Opposite Party, they approached it, with a view to have a flat, at Chandigarh. Registration fee, in the sum of Rs.11,20,700/-was paid by the complainants, to the Opposite Party. Apartment Buyer`s Agreement was executed between the parties, on 25.11.2006, whereby the Opposite Party, agreed to sell them a 4 Bed Room Apartment, bearing No.C-14, First Floor, Block C, having super area of 2450 sq. feet, @ Rs.5490/-, per sq. ft. The total consideration, in the sum of Rs. 1,37,91,175/-, was paid by the complainants, to the Opposite Party, from time to time. The possession of the flat was to be delivered to the complainants, by the end of 2008, but the Opposite Party failed to do so. The Opposite Party, however, assured to deliver the possession of the flat, on 31.03.2010, but again they failed to do so. The Opposite Party, had, however, offered to refund the amount deposited by the complainants, alongwith normal/simple rate of interest, but, they refused to accept the offer, aforesaid. When the possession was not delivered to the complainants, in respect of the flat, in question, for which they had paid the entire sale consideration, they filed Consumer Complaint No.285 on 11.05.2010, claiming various reliefs therein.
3. The District Forum, after hearing the Counsel for the parties, and on going through the evidence on record, vide order dated 04.04.2011, directed the Opposite Party as under:-
In view of the above discussion and in view of the fact that the completion certificate has already been issued by the Chandigarh Administration, the present complaint is allowed and the OP is directed as under: -
(i) to deliver possession of the flat to the complainants within a period of three months from the date of receipt of certified copy of the order;
(ii) to pay a compensation of Rs.1 Lac for mental agony and harassment; (iii) to pay an amount of Rs.7,000/- as litigation costs. The above order be
complied with by the OP within three months from the date of receipt of its certified copy, failing which OPs shall pay interest @18% per annum on the total amount of Rs.1,37,91,175/- deposited by the complainant plus the amount of compensation of Rs.1 Lac from the date of filing of the complaint i.e.11.5.2010 till the date of compliance of the order.
4. When the order dated 04.04.2011, referred to above, passed by the District Forum, in Consumer Complaint No.285 of 2010, was not complied with, an Execution Application/Criminal Petition No.90 of 2011, was filed by the complainants/Decree Holders, wherein, the following majority order dated 07.05.2012, was passed:-
In this situation, the amount of Rs.1,00,000/- offered to the Complainant by the Opposite Party through a valid Cheque in the month of July, 2011, has stopped to attract interest when the valid cheque for Rs.1,00,000/- was received by the Applicant, and was not encashed. The other Cheque of Rs,7,000/- was given by the Opposite Party/JD against the cost of litigation which itself does not attract any interest. Hence, the Opposite Party/JD is liable to pay (interest at the rate of 18% on Rs.1 lac for a period of 14 months) i.e. Rs.21,000/- + 18% interest on the amount of R.1,37,91,175/- from the date of institution of this complaint i.e. 11.5.2010, till it is actually paid. Apart from this the Opposite Party/JD is directed to re-issue two cheques worth Rs.1,00,000/- and Rs.7,000/- to the Complainant, as the previous cheques offered to the Complainant/Applicant, on not being encashed have lapsed.
5.
Whereas, one Member of the District Forum, recorded dissenting note.
6. Thereafter, the Opposite Party/Judgment Debtor, moved an application dated 24.05.2012, that the order dated 07.05.2012 passed in Criminal Petition No.90 of 2011, had already been fully complied with, and the direction regarding payment of interest @18% P.A., on the amount of Rs.1,37,91,175/-, from the date of filing the complaint i.e. 11.05.2010, till the date of compliance of the impugned order, be recalled/modified, as the possession of the flat, had already been delivered to the complainants, on 17.09.2010, i.e. during the pendency of the Consumer Complaint, by them. That application was dismissed by the District Forum, vide majority order dated 06.08.2012, in the following manner:-
It was argued by counsel for OP that order regarding payment of interest on Rs.1,37,91,175/- be withdrawn/modified as the two directions has been complied with. To our mind, this Forum has no jurisdiction to review its own order as has been held in case titled Rajeev Hitendra Pathak & ors. Vs. Achyut Kashinath Karekar & anr IV (2011) CPJ 35(SC). So, the application is dismissed
7. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.
8. We have heard the Counsel for the parties, and, have gone through the record of the case, carefully.
9. The sole argument advanced, in the instant appeal, by the Counsel for the appellant, was that the complainants were not entitled to interest @18% P.A., on the amount of Rs.1,37,91,175/-, direction number (i), with regard whereto, in paragraph number 7 of the order dated 04.04.2011, passed in Consumer Complaint No.285 of 2010, was given by the District Forum, especially, when the possession of the flat, in question, had already been delivered to the complainants on 17.09.2010, during the pendency of the same (Consumer Complaint), as admitted by the Counsel for the respondents, vide his statement dated 05.07.2012, Annexure A-12, made in Criminal Petition No. 90 of 2011. It is, no doubt, true that when the Consumer Complaint was filed on 11.05.2010, the possession of the flat, had not been delivered to the complainants. The Counsel for the respondents also did not dispute the factum that the possession of flat was delivered to the complainants on 17.09.2010. It was, thus, the bounden duty of the Counsel for the respondents/complainants, to move an application, before the District Forum, in the Consumer Complaint, stating therein, that the Opposite Party had already delivered possession of the flat, in question on 17.09.2010, and, as such, the relief, sought for, by them, in that regard, had become redundant. However, the complainants concealed this factum, from the District Forum, during the pendency of Consumer Complaint No.285 of 2010, which was instituted on 11.05.2010. On account of concealment of such material fact, by the complainants, the District Forum was led to pass an order dated 04.04.2011, directing the Opposite Party, to deliver possession of the flat, to the complainant, within a period of three months, failing which, it was liable to pay interest @18% P.A., on the amount of Rs.1,37,91,175/-, deposited by them. In S.P Chengalvaraya Naidu Vs. Jagannath, AIR 1994 SC 853, the principle of law, laid down, was to the effect that the Courts of law are meant for imparting justice, between the parties. One, who comes to the Court, must come with clean hands. A person whose case is based on falsehood or concealment of material facts is not entitled to any relief and can be thrown out, at any stage of the litigation. Similar principle of law was laid down in S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors.[(2004)7SCC166], and G.M. Haryana Roadways vs Jai Bhagwan & Anr, 2008(3) SCR1156. Concealment of material facts amounted to commission of fraud. It is settled principle of law that if an order is obtained from a Court or a Tribunal, on the basis of concealment of material facts, by any of the parties, to the dispute, the same being the result of fraud, can be challenged, at any stage of the proceedings. Fraud and justice cannot dwell together. In S.P Chengalvaraya Naidu`s case (supra), it was also held as under:-
"Fraud avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the Court is a nullity and nonest in the eyes of law. Such a judgment/decree by the first court or by the highest Court has to be treated as a nullity by every Court, whether superior or inferior. It can be challenged in any Court even in collateral proceedings.
Had the material fact, of obtaining the possession of flat, in question, on 17.09.2010, been brought to the notice of the District Forum, in writing, by moving an application, it would not have been led to pass an order, regarding the delivery of possession of the flat, to the complainants, within a period of three months, failing which, to pay interest @18% P.A., on the amount of Rs.1,37,91,175/-, deposited by the complainants, towards the entire price of the flat, from 11.05.2010, i.e. the date of filing the Consumer Complaint, till realization. The entire fault, therefore, lay on the shoulders of the complainants. They knowingly and deliberately, created such a situation, by concealing the material facts, from the District Forum, resulting into passing of the aforesaid direction. It is settled principle of law, that no party can be allowed to take benefit of its own wrong. On the one hand, the complainants committed wrong, by concealing the material facts, and, on the other hand, they want to take advantage of the direction, referred to above, given by the District Forum, on the basis of such concealed facts. The respondents/complainants, therefore, could not be allowed to take advantage of their own wrongs. Since, possession of the flat, had already been delivered to the complainants on 17.09.2010, during the pendency of Consumer Complaint No.285 of 2010, the direction regarding the delivery of possession by the complainants, of flat, vide order dated 04.04.2011, given therein, within three months, and on their failure, to pay interest @18% P.A., on the amount of Rs.1,37,91,175/- is, thus, wholly and completely illegal. The District Forum was, thus, wrong, in holding, by its majority order dated 07.05.2012, that the Opposite Party, was liable to comply with the direction, regarding the payment of interest @18% P.A., on the amount of Rs.1,37,91,175/-, from 11.05.2010 till realization. The majority order of the District Forum, dated 07.05.2012, to the extent, referred to above, being illegal, is liable to be set aside. Consequently, the order dated 06.08.2012, passed in the Execution Application, moved by the Opposite Party, is also liable to be set aside.
10. The Counsel for the respondents, however, submitted that, no doubt, it was not brought to the notice of the District Forum, in writing, by moving an application, when the Consumer Complaint was pending, that the possession of flat, had already been delivered to the complainants on 17.09.2010, yet, on the copy of the judgment, which was placed by him, on the District Forum file, he made an endorsement that possession of the flat, was given to them (complainants), in September 2010. Copy of the order, in Consumer Complaint no. 246 of 2010, decided on 23.11.2010, was placed on the District Forum file. However, it cannot be said, as to when, the endorsement on the same, that the possession was given to the complainants, in September, 2010, was made. This endorsement is not signed by the Counsel for the complainants. Even this could not be said to be a proper mode of bringing to the notice of the District Forum that the possession of the flat, was given to the complainants on 17.09.2010. The complainants were required to adopt a proper mode, by moving an application, stating therein, that the possession of flat, had been delivered to them on 17.09.2010, but they did not do so, resulting into passing of wrong order, referred to above, by the District Forum. It, therefore, could not be said that there was no deliberate concealment of material facts, with regard to taking of possession of the flat, by the complainants, on 17.09.2010, before the District Forum. The submission of the Counsel for the respondents, therefore, being without merit, must fail, and the same stands rejected.
11. The other directions given by the District Forum, in its order dated 04.04.2011, passed in the Consumer Complaint, have admittedly been complied with, by the Opposite Party. There is, therefore, no dispute, with regard to the same.
12. No other point, was urged, by the Counsel for the parties.
13. For the reasons recorded above, the appeal is accepted, with no order as to costs. The majority order dated 07.05.2012, to the extent of directing the Opposite Party/appellant, to pay interest @18% P.A., on the amount of Rs.1,37,91,175/-, from 11.05.2010, till the date of compliance of the same, and the order dated 06.08.2012 passed in the Criminal Petition/ Execution Application, are set aside, Whereas, the minority order dated 06.08.2012, holding that the respondents/complainants were not entitled to interest on the amount of Rs.1,37,91,175/-, is upheld.
14. Criminal Petition No.90 of 2011/Execution Application filed by the complainants/Decree Holders shall stand dismissed, as fully satisfied.
15. Certified copies of this order, be sent to the parties, free of charge.
16. The file be consigned to Record Room, after completion Pronounced.
November 6, 2012 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT SD/-
[NEENA SANDHU] MEMBER Rg