Chandigarh

StateCommission

A/68/2015

Chandigarh Housing Board - Complainant(s)

Versus

Devinder Singh Marwah - Opp.Party(s)

Vishal Sodhi, Adv.

11 May 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                                 

First Appeal No.	:	68 of 2015
Date of Institution	:	19.03.2015
Date of Decision	:	11.05.2015

 

Chandigarh Housing Board through its Chairman, #8, Jan Marg, Sector 9, Chandigarh.

……Appellant/Opposite Party No.2.

Versus

[1]   Sh. Devinder Singh Marwah S/o Late Balwant Singh, R/o 10, Kumberland Avenue, Goring By-sea, Worthing, West Sussex, England.

[2]    Mrs. Balwinder Kaur Marwah W/o Sh. Devinder Singh Marwah, R/o 10, Kumberland Avenue, Goring By-sea, Worthing, West Sussex, England.

        Both are presently residing at H.No.5695-A, Sector – 38 West, Chandigarh.

….Respondents/Complainants.

[3]    Parsvnath Developers Ltd., SCO No.1, 1^st Floor Madhya Marg, Sector 26, Chandigarh through its Managing Director.

              ....Respondent/Opposite Party No.1.

 

Appeal under Section 27-A of the Consumer Protection Act, 1986.

 

BEFORE:   MR. DEV RAJ, PRESIDING MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by: 

 

Sh. Vishal Sodhi, Advocate for the appellant.

Sh. Navin Kapur, Advocate for respondents No.1 & 2.

Sh. Rahul Sharma, Advocate for respondent No.3.

 

PER DEV RAJ, PRESIDING MEMBER.

            This appeal is directed by Opposite Party No.2 – Chandigarh Housing Board (now appellant) against the order dated 27.01.2015 rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) in Execution Application No.20 of 2014, operative part whereof, reads as under:-

“15.   In view of the foregoing conclusions, we hold the OPs guilty of the non compliance of the orders of this Forum as modified by the Hon’ble State Commission as well as the Hon’ble National Commission and punish them with a fine of Rs.10,000/- each to OPs which shall be deposited in the “Consumer Legal Aid Account” No.32892854721, maintained in the name of Secretary, Hon’ble State Commission UT Chandigarh. The OPs are ordered to comply with the same within 30 days of the receipt of the certified copies of this order, by intimating the office of this Forum with valid proof of its payment within the stipulated period, failing which the OPs No.1,2 & 3 shall be liable for a simple imprisonment for a period of one year along with the payment of the awarded fine.”

2.         The facts, in brief, are that initially a joint consumer complaint No.409 of 2010 was filed by Sh. Devinder Singh Marwah and his wife Mrs. Balwinder Kaur Marwah, which was allowed by the District Forum vide order dated 02.12.2010, operative part whereof is extracted hereunder:-

“15.      In view of the above findings, this complaint is allowed with following directions to OPs to:-

i)    Refund the remaining amount of Rs.2,57,000/- to the complainants.

ii)   Pay interest on the total amount paid to OPs by the complainants from the respective dates of deposits till dates of its return at the current maximum SBI term deposit rate on the date of refund.

iii)  Pay Rs.50,000/- to the complainants as compensation for causing mental agony and harassment

iv)   Pay Rs.7,000/- to the complainants as costs of litigation.

16.        This order be complied with by OPs jointly and severally within 45 days from the date of receipt of its certified copy, failing which OPs shall be liable to pay Rs.3,07,000/- along with interest on the total amount paid by the complainants from the respective dates of deposits till its realization along with interest @ 18% p.a. besides Rs.7000/- as costs of litigation.”

3.         Feeling aggrieved against the order dated 02.12.2010, both Parsvnath Developers Ltd. and Chandigarh Housing Board, filed two separate appeals bearing No.02 of 2011 and 04 of 2011 before this Commission, which were partly accepted vide order dated 20.09.2011 and the order dated 02.12.2010 of the District Forum was modified. The operative part of order dated 20.09.2011 passed by this Commission is extracted hereunder:-

“22.        For the reasons, recorded above,   both the aforesaid  appeals are partly accepted, with no order as to costs, with  the following modifications;

(i)that only  Parsvnath Developers Ltd. shall be liable to pay compensation of Rs.50,000/- awarded by the District Forum, for harassment and mental agony, caused to the complainants, and the Chandigarh Housing Board shall not be liable to pay the same.

(ii) that the direction of the District Forum regarding the grant of penal interest @ 18% p.a. on non-compliance of the order within 45 days, is modified, and instead the OPs, are ordered to pay penal interest @ 12% p.a. on the  payable amounts, on account of non-compliance of the order, within the period stipulated by the District Forum.

(iii) the remaining reliefs, granted by the District Forum, shall remain unaltered.”

4.          Feeling aggrieved against the order dated 20.09.2011 passed by this Commission, Chandigarh Housing Board (Opposite Party No.2) filed Revision Petition No.3727 of 2011 before the National Consumer Disputes Redressal Commission, which was disposed of alongwith bunch of First Appeals/Revision Petitions by the National Commission vide order dated 05.03.2013, whereby it (National Commission), interalia, held at Page No.106 to 108 of its order as under:-

“To avoid contradiction in the directions given by the District Forum and the State Commission regarding the payment of interest to the complainants, we modify the orders passed by the Fora below and direct the Developer and the CHB to pay interest at the uniform rate of 9% p.a. (payable to the Senior Citizen on Bank fixed deposit at the relevant time) to the complainants in the ratio of 70: 30 from the respective dates of deposit till the date of deposit of the amount by the appellants/petitioners in the ESCROW account.

      ……..The Developer and the CHB cannot be allowed to have the benefit of their own/mutual wrongs. The dispute arising between the Developer and the CHB already stands referred to the Sole Arbitration appointed by the Hon’ble Supreme Court……

      ………The amount of interest and compensation shall be paid by the Developer and the CHB as directed above within a period of three months from today, failing which the amount shall carry interest @12% p.a………”

5.          The complainants filed Execution Application No.20 of 2014 regarding non-compliance of final order dated 05.03.2013 passed by the National Commission, wherein the order impugned dated 27.01.2015 was passed by the District Forum.

6.         Feeling aggrieved, the instant appeal, has been filed by the appellant/JD/Opposite Party No.2-Chandigarh Housing Board.

7.         The Counsel for the appellant/Opposite Party No.2 – CHB submitted that the District Forum wrongly assuming that the entire amount of Rs.15,85,740/- was not paid well before the cut-off date as set out in the order dated 05.03.2013, imposed penal interest of 12% in case of default and completely ignored the fact that a sum of Rs.13,28,750/- stood already paid on 09.07.2009 to respondents No.1 & 2/DHs/complainants. He further submitted that the District Forum in the impugned order wrongly held that an amount of Rs.1,71,342/- was outstanding against the appellant/JD/Opposite Party No.2 and the same had attracted an amount of Rs.80,530/- as interest on 01.06.2013 and, therefore, after deducting Rs.82,203/- from the total amount of Rs.2,51,872/- (Rs.1,71,342 + Rs.80,530), an amount of Rs.1,69,669/- remained to be paid by Opposite Party No.2 – CHB and the same still attracted interest @12% per annum since 01.06.2013 and imposed a fine of Rs.10,000/- each upon the Judgment Debtors/Opposite Parties. He further submitted that out of the total sale consideration of Rs.15,85,750/-, refund in the sum of Rs.13,28,750/- was made on 09.07.2009 and out of the balance amount viz. Rs.2,57,000/-, 30% share of the appellant/JD/Opposite Party No.2 was paid on 27.10.2007 and, thus, the entire principal amount stood paid. He further submitted that the National Commission vide its order dated 05.03.2013 allowed interest @9% per annum with directions to make payment within a period of three months failing which interest @12% was payable. He further submitted that the appellant/JD/Opposite Party No.2, by making payment in the sum of Rs.82,203/- vide Bankers cheque dated 03.06.2013 i.e. well within the laid down period of three months, complied the order of the National Commission. He further submitted that a sum of Rs.20,551/- was deducted on account of TDS and the same was deposited with Income-Tax authorities on 06.07.2013. He further submitted that the judgment in case titled G.D.A Vs. Dr. N. K. Gupta, Revision Petition No.2244 of 1999 decided on 13.09.2002 does not apply to the facts and circumstances of the present case as the appellant/JD/Opposite Party No.2 has not been held liable to pay compensation under Clause 9(c) of the Flat Buyer’s Agreement. He further submitted that deduction of TDS was a statutory requirement and the order stood fully complied with. The DHs/complainants filed Execution Application in 2014 alleging default of Rs.18,388/-. He further submitted that the District Forum wrongly calculated the interest @12% per annum on the entire amount. 

 

8.         The Counsel for respondents No.1&2/DHs/complainants admitted that a sum of Rs.82,203/- was paid by the appellant/JD/Opposite Party No.2 within the time laid down in the National Commission order i.e. on 03.06.2013. He further submitted that regarding deduction of TDS, respondents No.1&2/DHs/complainants were not informed and it was only during the execution proceedings that they came to know about deduction of a sum of Rs.20,551/- on account of TDS. He further submitted that under Section 194 of Income Tax Act, 1961, TDS could be deducted if interest exceeded a sum of Rs.50,000/- in a particular financial year whereas, in the instant case, it did not exceed Rs.50,000/-. The Counsel conceded that a sum of Rs.77,100/- stood received by respondents No.1&2/DHs/complainants on 27.10.2007. The Counsel also admitted that refund of Rs.20,551/- which was deducted as TDS, also stood received by the Decree Holders/complainants.

9.          As per the National Commission order, the Developer and the Chandigarh Housing Board were to pay interest at the uniform rate of 9% per annum to the complainants in the ratio of 70:30 within a period of three months from the date of order of the National Commission viz. 05.03.2013, failing which, the amount was to carry interest @12% per annum. As admitted by the Counsel for respondents No.1 & 2/DHs/complainants, a sum of Rs.77,100/- had already been received by the complainants on 27.10.2007 and nothing remained due towards principal amount. The appellant/JD/Opposite Party No.2 in compliance with the orders of the National Commission paid a sum of Rs.82,203/- on 03.06.2013 to respondents No.1 & 2/DHs/complainants within the time limit laid down in the National Commission order dated 05.03.2013. As is evident, a sum of Rs.20,551/- was deducted on account of TDS, and deposited with the Income Tax Department. When the amount deducted on account of TDS was deposited on 06.07.2013, the same cannot, in any way, be said to be due/outstanding against the appellant/JD/Opposite Party No.2. It is evident from the zimini order dated 11.07.2014 in Execution Application No.20 of 2014 of District Forum-II that original TDS certificate was provided to the Counsel for the Decree Holders/complainants on 11.07.2014. No doubt, the appellant/JD/Opposite Party No.2 did not specifically intimate separately respondents No.1 & 2/DHs/complainants about the amount of Rs.20,551/- deducted on account of TDS but when the Decree Holders/complainants, got the refund also, the same, in our opinion, did not mean non-compliance of the order intentionally and willfully. The Counsel for respondents No.1&2/DHs/complainants also submitted copy of Form 26 AS and Income Tax Return of Mr. Devinder Singh filed on 31.07.2014 and admitting TDS of Rs.20,551/-.

 

10.        In case, respondents No.1 & 2/DHs/ complainants had any doubt about the short receipt of money, they could very well ascertain the position from the appellant/JD/Opposite Party No.2. Had respondents No.1 & 2/DHs/complainants sought details of the TDS amount deducted having apprehension about less receipt of due amount and the appellant/JD/Opposite Party No.2 failed to provide the same, the position would have been different. In Execution Application No.20 of 2014, total interest payable by the Chandigarh Housing Board up-to 25.03.2012 was shown as Rs.99,548/- i.e. 30% of Rs.3,31,829/-. In the aforesaid Execution Application, it was admitted in Para 5 that appellant/JD/Opposite Party No.2 had already made a payment of Rs.82,203/- in June 2013 and it was liable to pay the remaining amount of Rs.18,388/- as on date, which included the interest calculated up-to-date and further interest. When payment in the sum of Rs.82,203/- stood made on 03.06.2013 and Rs.20,551/- deducted on account of TDS was deposited with Income Tax Department and the DHs/complainants also got refund of the same, the District Forum, in our considered opinion, fell in grave error in calculating 12% interest, holding that a sum of Rs.1,69,669/- remained to be paid by Opposite Party No.2 i.e. Chandigarh Housing Board and the same still attracted interest @12% per annum since 1.6.2013 and holding appellant/JD/ Opposite Party No.2 guilty of non-compliance of District Forum order as modified by the State Commission and the National Commission. Clearly the National Commission order dated 05.03.2013 has been complied with, by the appellant/Judgment Debtor/Opposite Party No.2.

11.            It may be stated here, that the main object of the provisions of the Act, is that the orders passed by the Consumer Foras, when attain finality, are complied with, in  letter and spirit. The object behind the provisions of Section-27 of the Act, is not that if the orders passed by the Consumer Foras, are complied with, in letter and spirit, though belatedly, the service provider/Opposite Party, should be punished.  Since the National Commission order dated 05.03.2013 has been complied with, in our considered opinion, the District Forum wrongly held the appellant/JD/Opposite Party No.2 guilty of non-compliance of the National Commission order and saddled it with a fine of Rs.10,000/- and in failure, to deposit the fine within stipulated period of 30 days, appellant/JD/Opposite Party No.2 liable for a simple imprisonment for a period of one year. The appeal, thus, deserves to be accepted. In this view of the matter, the interest of justice, would be adequately met, if the impugned order is set aside.

12.             For the reasons recorded above, the instant appeal is accepted, with no order as to costs. The impugned order dated 27.01.2015, is set aside qua the appellant/JD/Opposite Party No.2. Non-bailable warrant of arrest, if any, issued against the appellant/JD/Opposite Party No.2 be recalled back unexecuted at once, by District Forum (II), if it has not already done so.

13.        The District Forum concerned be intimated, at once.

14.        Certified copy of the order be sent to the District Forum immediately for due compliance.

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.

May 11, 2015.

Sd/-

 [DEV RAJ]

PRESIDING MEMBER

 

 

Sd/- 

 [PADMA PANDEY]

MEMBER 

 

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