BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY
Dated this the 3rd day of May 2018
E.P. 1 / 2008 in D.No.12/2003
E.P. 2 / 2008 in D.No.11/2003
E.P. 3 / 2008 in D.No.04/2005
E.P. 4 / 2008 in D.No.06/2005
E.P. 5 / 2008 in D.No.08/2005
E.P. 6 / 2008 in D.No.07/2005
E.P. 7/ 2008 in D.No.09/2005
E.P. 8/ 2008 in D.No.10/2005
E.P. 9/ 2008 in D.No.11/2005
E.P. 10 / 2008 in D.No.15/2005
E.P. 11 / 2008 in D.No.03/2005
E.P. 12 / 2008 in D.No.05/2005
1. Sankaralingam, son of T. K. Dharani
24, Porteous Road,
Aynavaram, Chennai – 600 023.
… Petitioner / Complainant in
E.P. 1 / 2008 in D.No.12/2003
2. K. Kottiswari, wife of Kuppusamy
No.37, Elumalai Street,
Ayanavaram, Chennai – 600 023.
… Petitioner / Complainant in
E.P. 2 / 2008 in D.No.11/2003
3. G. Guru Janarthanan,
Flat No.A, Arudhra Nagar,
Puducherry
… Petitioner / Complainant in
E.P. 3 / 2008 in D.No.04/2005
4. Chitikela Venkataramana,
East Godavari District,
Andhra Pradesh – 533 401.
… Petitioner / Complainant in
E.P. 4 / 2008 in D.No.06/2005
5. R. Arunachalam,
C-412,4th Street,
Periyar Nagar,
Chennai – 600 082.
… Petitioner / Complainant in
E.P. 5 / 2008 in D.No.08/2005
6. A.S. Amrudheen,
26, Zackria Colony,
Main Road, Choolaimedu,
Chennai – 600 094.
… Petitioner / Complainant in
E.P. 6 / 2008 in D.No.07/2005
7. M.A. Muthukumaran,
2,Kollar Mandapam,
SI.No.1, Thiruchengodu,
Namakkal – 637 211.
… Petitioner / Complainant in
E.P. 7/ 2008 in D.No.09/2005
8. M. Muthukrishnan,
15-C, Vinayagar Koil Street,
Veema Nagar,
Puducherry – 605 003.
… Petitioner / Complainant in
E.P. 8/ 2008 in D.No.10/2005
9. K. Srinivasan,
143, II Floor, Lenin Street,
Kuyavarpalayam,
Puducherry.
… Petitioner / Complainant in
E.P. 9/ 2008 in D.No.11/2005
10. R. Subramanian,
6, St. Rozario Street,
Muthialpet,
Puducherry – 605 003.
… Petitioner / Complainant in
E.P. 10 / 2008 in D.No.15/2005
11. N.S Prabu Ramachandran,
46, IV Street, Bashyam Nagar,
Chromepet, Chennai – 600 044.
… Petitioner / Complainant in
E.P. 11 / 2008 in D.No.03/2005
12. P. Rengarajan,
104/42, Marakanam Road,
Jayapuram,
Tindivanam – 604 001.
… Petitioner / Complainant in
E.P. 12 / 2008 in D.No.05/2005
Vs
1. D. Sivaram Alva
60, Nidarajapaiyar Street,
Pondicherry – 605 001.
2. H. Dhritin Tyagi
11, Sengeni Amman Koil Street
Vazhaikulam, Muthialpet,
Puducherry – 605 003.
… Respondents / Opposite parties
in all the EPs and Disputes
BEFORE:
HON’BLE JUSTICE Thiru K. VENKATARAMAN,
PRESIDENT
Thiru S. TIROUGNANASSAMBANDANE,
MEMBER
FOR THE PETITIONER:
Thiru L. Sathish, Advocate for Petitioners
FOR THE RESPONDENTS:
Thiru Prakash Adiapadam, Advocate filed change of vakalat for R1 on 02.05.2018 in which Thiru M. Vaikunth, Advocate endorsed no objection.
Thiru S. Vimal, Advocate for Respondent No.2
COMMON ORDER
(By Justice Thiru K. Venkataraman, President)
About the delay in disposal of the matter, it is always said "the father will file a case, the son will get a decree and the grand sons or the grand daughters will enjoy the fruits of the decree". The present case is a classic example for the same.
1) The complainants in these matters approached the State Commission, Puducherry by filing complaints in the years 2003/2005 alleging that the first opposite party therein through the second opposite party has not completed the construction of the flats booked by them, under the agreement entered into between them, though they parted with major portion of the money to the first opposite party. The complaints were allowed by the State Commission on 9.6.2005 in the following manner:
(a) The complainant covered in this batch of cases are directed to pay half of the balance amount within two months from the date of receipt of the order to the 1st opposite party.
(b) The 1st opposite party on receipt of the said amount, shall complete the construction of the flats and hand over possession to the complainants within three months. The 2nd opposite party on receipt of the amount from the 1st opposite party shall proceed with further construction.
(c) The complainants in all these cases shall pay the remaining balance amount to the 1st opposite party at the time of handing over possession by 1st opposite party
(d) In case the above time limit is not complied with by the 1st opposite party, they shall pay the entire amount received from the complainants with interest at 12% p.a from the dates of payments
(e) If the complainants failed to pay the balance amount as directed above, they would be entitled to refund of the entire amount without interest.
(f) The complainants each are entitled to cost of Rs.2,000/- form 1st opposite party.
2) Aggrieved by the said order, the complainants had filed First Appeals No. 328 – 339 of 2005 before the Hon'ble National Commission, New Delhi which dismissed the said First Appeals in limine, after observing as follows, by order dt.16.08.2005
“The apprehension of the complainant now is that in terms of clause ‘D’ the respondent would receive the money and protract adopt dilatory tactics without delivering the possession. If we accept this contention then it would be a total mockery of the very existence of the State Commission as well as the execution proceedings therein. In case the complainant is not ready and willing to comply order in terms of the impugned orders then only one thing can be inferred that the complainants/appellants want to abuse the process of the consumer fora.”
3. After the dismissal of the first appeals by Hon'ble National Commission, New Delhi, the complainants filed Execution Petitions namely E.P.No.1/2008 to 12/2008.
4. During the pendency of the said Execution Petitions, the complainants in batch of complaints in D. Nos. 1,2,4,6,7,9,10,14 and 15 of 2003 who have filed E.P. Nos. 2/ 2016 to 11 / 2016 thereon filed petitions for modification of prayer and the then President, State Commission, Puducherry had passed a common order dt.11.06.2008 allowing the prayer modification and ordering that the complainants should return the amount received by then to OP1 who shall hand over possession of flats in "as-is-where-is-stage".
5) The first opposite party in the batch of Consumer Disputes filed CRPs. (NPD) Nos.2322 to 2331 of 2008 before the Hon'ble High Court, Madras against the common order passed by the State Commission, Puducherry and the Hon'ble High Court, Madras had granted stay of the operation of the order passed in the disputes until further orders, by order dt.18.07.2008.
6) As the matter had been kept adjourned from time to time without further progress, in view of the interim stay granted by the Hon'ble High Court, Madras, the then President, State Commission, Puducherry had passed a common order dt.26.02.2010 ordering that the Execution Petitions be closed with liberty to petitioner to approach the commission for restoration after disposal of CRPs by the Hon'ble High Court, Madras.
7) The Hon'ble High Court, Madras, by order dt.16.10.2014, dismissed all the Revision Petitions filed by OP1.
8) Thereafter, all the execution petitions were ordered to be restored to file by as by common order dt.13.04.2016 passed in M.P. No.10/2015 to 21/2015 in E.P. No.1/2008 to 12/2008.
9) Thus, the present Execution Petitions have been filed by the complainants for execution of the order that they have obtained in their complaints which have been filed in the year 2003. They sought for the following prayer:
(a) Order the opposite parties to complete the construction of the flat and hand over possession of the same to the complainant within the date to be specified by the Hon'ble Commission;
(b) Pass suitable orders under section 27 (1) of the Consumer Protection Act, 1986 if the opposite parties fail to deliver the flat to the complainant as above and;
(c) Order the opposite parties to pay the cost of this proceedings to the complainant.
10) On behalf of the second respondent in E.P., who is one of the Opposite Parties in the complaint, a common counter was filed in the E.P., setting out the following facts:
(a) It is about 15 years since the date of agreement now and there has been huge escalation of cost of construction from the date of construction agreement till this date.
(b) The second respondent is willing to complete the agreed construction subject to assessment and payment of the escalated cost of construction for the remaining work and the external factor that would have contributed to the strength and stability of the constructed portion of the building over the time of 15 years through an upright civil engineer of good repute, experience and standing.
c) In default to pay the dues to the bank by the complainant and the first respondent / OP, the State Bank of India, Thattanchavady Branch, Pondicherry has initiated proceedings against the property and taking possession of the same. d) direct the first Respondent / OP and the complainant to hand over possession of the property and to pay necessary charges prevailing on the date of construction.
Therefore, the counter seeks for an appointment of an Engineer to assess the escalated costs.
11) The first respondent filed a counter stating
a) Since the petitioners in EP did not comply with the direction given to them he could not comply with the direction No.1 of the State Commission;
b) The petitioners who have availed loan from the state Bank of India have not repaid the amount to the Bank and hence, it entered into the property and hence, the first O.P. could not complete the construction;
c) The State Bank of India is a necessary party to the EP.
12) We are not persuaded to the counter filed by the first and second respondent. The delay has occurred in constructing the building not at the fault of the complainant alone. The price escalation and other things is a matter that cannot be urged in the execution petition. We are only concerned with the execution of the order that came to be passed by the State Commission and the order to be passed in the E.P. We cannot add or subtract from the order that was passed in the complaint which is sought to be executed by filing the E.P. Therefore, the said contentions raised in the counter filed by the second respondent in the E.P. who is one of the OP and the arguments put forth by
Mr. Vimal, the learned Counsel appearing for the second respondent in the E.P. cannot be considered and deserves to be rejected. Same way, we have to reject the other contentions raised by the first O.P. A separate order was passed by us on the application preferred by O.P. No.1 for impleading State Bank of India as a necessary party in the EP. The same shall form part of the order hereunder.
13) It is to be noted that in similar sets of facts, the other complainants have got an order in their favour and the very same order, the decree holder is seeking for execution in their respective E.Ps. The orders that they referred are the orders passed in E.P. No. 2 / 2006 to 11 / 2006 in Dispute Nos. 1,2,4,5,6,7,9,10,14 and 15 of 2003 dated 11.06.2008. It is not disputed that the facts are similar to the present case on hand. There, the then President has passed the following order which is extracted hereunder:
Para 7: We heard the learned counsel for the petitioners/complainants and learned counsel for the 1st respondent/O.P. The National Commission in its order has considered the grievance of the petitioners to the effect that the respondent would receive the money and protract and adopt dilatory tactics without delivering the possession and in considering such a contention, it held that it would be a total mockery of the very existence of the State Commission, if such a contention was accepted as well as the execution proceedings therein. The order stipulates that the petitioners/complainants should pay the half of the balance amount from the date of receipt of the order to the 1st respondent/O.P. from the complainants in various complaints along with the banker’s cheque within three months. The petitioners/ complainants have complied with that part of the order. The 1st respondent/ O.P. on receipt of the balance amount from the complainants should proceed with further construction. The order stipulates that it is the bounden duty of the 1st respondent/O.P. to take steps to complete the construction and hand over possession to the petitioners/complainants within three months. The 2nd respondent/O.P. was also directed to proceed with further construction. It is not open to the 1st respondent/O.P. , after having received the money, to keep quite and not to proceed with the construction of the flat and not hand over possession to the petitioners/complainants within three months, and then plead that he will return the money to the petitioners/complainants with interest to the petitioners/ complainants. We are of the view that it is the duty cast upon the 1st respondent/O.P. to complete the construction of the flat and hand over possession of the same to the petitioners/ complainants within three months after the receipt of the money. The other clauses (c) (d) and (e) will operate only if there is any delay. It is not open to the 1st respondent/O.P.1 to put the blame on himself for not constructing the flat and not take steps to complete construction of the flat and hand over possession to the petitioners/complainants of the completed flats. Since he has failed to take steps to complete construction of the flats even after receipt of the money from the complainants, the 1st respondent/O.P. has to be blamed himself and it is not open to him pass on the blame to the petitioners/complainants his own default in not handing over the flats. The National Commission in its order has held that if the grievance of the petitioners/complainants is accepted, then it would result in a total mockery of the very existence of the State Commission as well as the execution proceedings therein. We, therefore, of the view that the 1st respondent/O.P1. should take steps to complete the construction of the flats and hand over them to the petitioners/complainants. Now, the 1st respondent/O.P1. has clearly admitted that he is not in a position to take up further construction of the flats. The 2nd respondent/O.P.2 has also not appeared. In these circumstances, we are of the view that the petitioners should be allowed to complete the construction of the flat at their own costs and take over possession of the same. The spirit of the order of the State Commission is that the flats should be constructed completed and possession handed over to the petitioners/complainants and if the 1st respondent/OP.1 is not willing to complete the construction, the petitioners/ complainants, as his agents for a limited purpose, should be allowed to complete the construction as the agent of the 1st respondent/O.P.1 and take possession of the same The attitude of the 1st respondent/O.P.1 shows that even after the receipt of the notice and the banker’s cheque, he has taken a stand that he has not received the notice and also not encashed the banker’s cheque. We are of the view that the above attitude clearly establishes that the 1st respondent/O.P.1 is not willing to comply with the order of the State Commission and the proper course, in these circumstances, would be to permit the petitioners/complainants to complete the construction of the flat and take possession of the flats and such a direction would meet the ends of justice. The 1st respondent/O.P. should hand over possession of the flats in the stage at which it exists to the petitioners/complainants and the petitioners/ complainants shall complete the construction of the flats, as the agent of the 1st respondent/O.P.1 of their respective flats, at their own costs. The petitioners/ complainants are also directed to return the amount received by them to the 1st respondent/O/P, if not returned, as it is stated that the money has been sent back to them and the 1st respondent/O.P. is directed to receive the money, if not received earlier. It is no doubt true that the 1st respondent/O.P. is entitled to get the remaining balance amount, as ordered by the State Commission at the time of time of entering into possession of the flat. The execution petitions are ordered in the above manner.
Para 8. In the result, the Executions Petitions are ordered in the above manner. The amendments petitions, to amend the execution petitions, are also ordered as allowed. Three months time is granted to both the parties from this date to perform their respective obligations. No costs.
14) There cannot be any objection for passing a similar order in the present EPs also. Thus, we are inclined to pass a similar order in the present E.Ps. also. Thus, all the EPs are allowed in the manner set out above. However, there is no order as to costs.
Dated this the 3rd day of May, 2018
(Justice K. VENKATARAMAN)
PRESIDENT
(S. TIROUGNANASSAMBANDANE)
MEMBER
