1.       This Appeal came to be instituted after a Revision Petition, that was filed by the Appellant against the same Impugned Order dated 05.10.2007, was dismissed by this Commission holding that a Revision would not be maintainable, and an Appeal would lie in terms of Section 27 A of the Consumer Protection Act, 1986 against the Impugned order dated 05.10.2007.

2.       In order to appreciate the controversy raised and the issue with regard to the maintainability as well, there are certain facts and decisions which need to be discussed before proceeding with the merits of the matter.

3.       On merits there is a very short point involved as to whether the Appellant is liable to pay the balance amount as indicated in the Impugned Order being a calculation of Compound Interest or not.

4.       Nonetheless for the time being putting aside the issue of merits the first issue with regard to the nature of the proceedings that can be maintained against such an order has to be discussed.

5.       Chronologically, there a Complaint was lodged before the State Commission being Consumer Complaint No. 539 of 1993 praying for refund of the amount that was paid towards the booking of 4 commercial shops which the Complainant stated that he had booked for his grandchildren. The Complainant is alleged to have deposited installments but unfortunately he was unable to get possession of the original bookings and in that context the developer agreed to make available four shops in an alternative manner in a row.

6.       There was an understanding that the shops will be handed over on or before 24.01.1997, but the dispute arose with regard to the area of the shops and the clarity of title of the same.

7.       The offer which had been made by the Builder was therefore disputed and then the Complainant expressed that he would not like to pursue any litigation and hence refund be allowed. Consequently the State Commission vide Order dated 29.08.1997 allowed the Complaint together with 18% interest per annum by way of compensation on the following terms:

“The next material question is as to the amount to which the complainant is entitled. Ordinarily the National Commission and various State Commissions have been granting besides refund of the actual amount paid interest @ 18% p.a. by way of compensation in such cases. We accordingly allow the complaint and direct the OP to refund Rs.5,65,640/- including the sum of Rs.1,25,000/- deposited vide cheque dated 10.01.1997 alongwith 18% interest from the date of various payments from time to time till date of refund alongwith Rs.5,000/- as costs. This Order shall be complied with within four weeks of the receipt of a copy failing which it will be open to the complainant to invoke jurisdiction of this Commission u/s 27. Copy be furnished to both the parties.”

8.       This Order came to be enforced by the Complainant through Execution Petition being Execution Application No. 307 of 1997. In the enforcement proceedings the Complainant moved an Application tendering a calculation which according to him was the correct calculation with regard to the payment of interest. This calculation was contested by the Appellant / Developer by filing an Application dated 09.12.2003, disputing the calculation as it was wrongly based on compound interest and giving the correct calculation at the rate of 18% per annum which was Simple Interest. A copy of this Application together with calculation of the Appellant is contained as Annexure P-5 and is on record. The same seems to have been also served on the other side and has been acknowledged by the State Commission in the Order dated 15.12.2003 which is extracted herein under:

“It is stated by the learned counsel for the respondent that he has filed calculations on 11.12.2003. However, the same are not on record. It is directed that Registry to have the same traced out and place the same on file. A copy of the same be given to the applicant by the learned counsel for the respondent. The learned counsel for the respondent undertakes to given a copy of the calculation to the applicant within a week.

List for final disposal on 28.01.2004. Be shown in the category of argument matters. Cause list fill and hence long date.”

9.       The Original Application was not on record and therefore the office had been directed to trace it out and place it on record.

10.     The State Commission in the said execution proceedings passed an Order on 02.08.2004 which is to the following effect:

“There is a balance amount of Rs.2,59,793/-, payable against the order dated 04-08-1997 of this Commission, as calculated and filed by way of an affidavit by the applicant which the respondent neither has contradicted nor filed any document or affidavit. However, a cheque for Rs.5,000/- towards cost has been paid to the applicant today. Respondent is directed to make the payment of the aforesaid amount within four weeks failing which execution proceedings shall be initiated.

Re-list on 06-09-2004.”

11.     It appears that since the said Order completely omitted to take into consideration the objections taken by the Appellant / Developer as also the details of the payments made, the entire amount as prayed by the Applicant / Complainant of Rs.2,59,793/- was incorrectly allowed.

12.     Aggrieved by the said Order dated 02.08.2004 the Appellant / Builder prayed for a request to treat the payments already made by the Appellant towards the satisfaction of the decree whereupon the State Commission passed the following Order on 06.09.2004:

“There is a dispute as to the calculation of the decretal amount. According to the petitioner a balance of Rs.2,59,793/- is still due from the respondent. Counsel for the respondent states that he has already complied with the order and nothing is due from the respondent. The petitioner has filed details of the amount as per order dated 04-08-1997. The respondents are directed to file the details of the amount to be paid by them after calculating in terms of order dated 04-08-1997 within two weeks. In terms or order dated 04-08-2004 an amount of the cheque given by the respondent has been mentioned as Rs.5,000/- where as cheque of Rs.14,482/- was paid which has been realized by the petitioner. The amount of “Rs.5,000/-“ shall be read as amount of “Rs.14,482/-“.

Re-list on 08-10-2004.”

13.     The Order therefore records the contest which was put forth for the payment of Rs.2,59,793/- and Parties were directed to file the details regarding the same. On 08.10.2004 the Appellants responded through an Affidavit which was entertained and the Complainant was called upon to file a response to the same. On 11.02.2005 the Commission directed the Registrar to calculate the amount in terms of the original Order dated 04.08.1997. It seems that the matter remained pending and ultimately the Registrar tendered a Report dated 27.05.2005 indicating the conflict in the calculation pointed out by the parties concerned. The Registrar was therefore directed to calculate the interest independently and place it before the Commission which does not seem to have been done. The Application was dismissed in default and then restored and then again the parties were called upon to file their calculations vide Order dated 11.09.2006.

14.     It may be pointed that in between the Complainant aggrieved by the Order dated 02.08.2004 filed a Revision Petition 1694 of 2005 that was dismissed summarily on 29.07.2005 with an observation that the State Commission is requested to finalize the Execution Proceedings at the earliest. The said Order is extracted herein under:

“In our view, the impugned Order passed by the State Commission does not call for any interference. State Commission is requested to finalise the execution proceedings at the earliest. The Revision Petition is dismissed.”

15.     The Appellants in Execution Proceedings filed a detailed Affidavit dated 08.10.2004, which is on record. Ultimately an Order was passed by the Commission on 07.05.2007 to the following effect:

“The matter is lingering on for the last 10 years only on the point as to how much amount the respondent is liable to pay to the petitioner by way of interest, as per order dated 04.08.1997 passed by this Commission. There is huge difference towards the interest as calculated by the petitioner and by the respondent.

In the given facts and circumstances, the bench comprising of Sh. Mahesh Chandra, Member and Ms. Rumnita Mittal, Member State Commission shall calculate the interest as per order passed by this Commission, so that the matter can be decided once for all.

The matter be listed before them on 02.07.2007 At 2.30 P.M.”

16.     On 23.08.2007 a bailable warrant had been issued against the Managing Director of the Appellant whereafter a direction was issued on 23.08.2007 for making payment of the amount of Rs.2,59,793/- to the Complainant. The bailable warrants were issued on 06.09.2007 upon which an Application was filed for finally disposing of the execution proceedings and was taken up on 05.10.2007. It is the Order passed on 05.10.2007 which had been impugned before this Commission previously in the Revision Petition that was dismissed as not maintainable and then again in this Appeal, after the Appeal was filed in terms of the said Order.

17.     Learned Counsel was apprised of the provisions of the enforcement under the Old Act i.e. Consumer Protection Act, 1986 where the provision as it then stood and available was Section 25 for the enforcement of any Order passed by the Commission. The Order dated 05.10.2007 which is under challenge is therefore an Order that had to enforced keeping in view the aforesaid background of the case. It also needs to be mentioned that the Order dated 29.07.2005 passed by this Commission in a revision against the Order dated 02.08.2004 had upheld the same, though only at the instance of Complainant. It appears that no notices had been issued to the present Appellant in the said Revision and it had been disposed of summarily at the admission stage itself without information or any notice on the Developer who is the Appellant herein. Nonetheless the said Order was not challenged before any higher forum by the Developer nor any prayer for recall the said Order was made before this Commission.

18.     When the present dispute was raised through a Revision Petition it was held that it was not maintainable, and that an Appeal would lie in terms of Section 27 A of the Consumer Protection Act, 1986. The order dated 15.05.2013 passed in Revision Petition No. 3685 of 2007 is extracted herein under:

“The impugned order which is under challenge was passed in the execution proceedings. In view of section 27 A of the CP Act, 1986, only appeal lies against the impugned order.

Counsel for the petitioner seeks permission to withdraw the present revision petition with liberty to seek appropriate relief before the appropriate forum.

Liberty prayed for is granted. Period of limitation shall not come in the way for seeking appropriate relief. Accordingly, the revision petition stand disposed of.”

19.       As a consequence of this Order passed in the year 2013 the present Appeal No. 481 of 2013 was instituted and a Bench entertaining this Appeal indicated a reported delay of 2056 days calculating from the date of the passing of the Impugned Order dated 05.10.2007.

20.     The delay was therefore sought to be condoned and on 01.10.2013 an Interim order was passed staying the operation of the Impugned Order. However, the delay condonation Application remained pending and has not been condoned so far.

21.     The case went on unattended for quite some time and then when the matter was listed on 21.09.2023, noticing these facts the present Bench passed the following Order:

“This is an Appeal arising out of Execution Order dated 05.10.2007 passed by the State Consumer Disputes Redressal Commission, Delhi. An enhanced claim of interest was made during the execution by the Respondent, the calculation was made by him and presented before the Executing Court claiming a balance of sum of Rs.2,59,793/- as interest that was payable against the encashment of post-dated cheques on the ground that the Commission had allowed the claim with 18% Compound Interest.

This was sought to be adjudicated upon in the Execution Proceedings which was contested by the Appellant that the Affidavit Evidence had already been filed giving the correct calculation as on 11.12.2003. A copy of the said Affidavit is on record. The Respondent arrived here and filed a Revision Petition that was dismissed with liberty to take his objections in the Execution Proceedings itself.

When the matter came up again before the State Commission in the Execution Proceedings it was observed that since the Parties have taken more than three years in calculating the interest awarded by this Commission, the dispute could be settled by maintaining the Order dated 02.08.2004 which was for making good the payment of Rs.2,59,793/- as claimed by the Respondent. The reason given by the State Commission is that the calculation made by the Respondent was neither controverted nor contradicted by the Respondent by way of an Affidavit.

Learned Counsel for the Appellant contends that this is an erroneous fact recorded in the Order, inasmuch as, stated above an Affidavit disputing the claim of interest by the Respondent had already been filed on 11.12.2003 however, the same could not be placed before the State Commission and consequently the Order was passed which is impugned herein.

Learned Counsel has then also invited the attention of the Bench to the Order dated 15.12.2003 passed in the Execution Proceedings where this fact has been recorded. The Order dated 15.12.2003 is extracted here as under:

“It is stated by the learned Counsel for the respondent that he has filed calculations on 11.12.2003. However the same are not on record. It is directed that Registry to have the same traced out and place the same on file. A copy of the same be given to the applicant by the learned Counsel for the respondent. The learned Counsel for the Respondent undertakes to given a copy of the calculation to the applicant within a week.

List for final disposal on 28.01.2004. Be shown in the category of argument matters. Cause list full and hence long date.”

The contention therefore raised is that the State Commission proceeded on an erroneous assumption and this Commission on 01.10.2013 stayed the Impugned Order. The Order dated 01.10.2013 is extracted here as under:

“Mr. T. S. Vohra, who is close friend of respondent, is present on behalf of the responded and seeks an adjournment as the respondent has gone to Itava to perform shraadh ceremony.

Adjourned to 27.01.2014.

Operation of the impugned order is stayed till next date of hearing.”

Today, Mr. Tejendra Pratap Singh, learned Counsel holding brief of Mr. Ramneet Mishra, learned Counsel for the Respondent stated that instructions have been received that the Respondent has died and therefore Legal Representatives / Legal Heirs have to be brought on record.

The said information is privy to the learned Counsel and therefore he may obtain instructions, file his Vakalatnama as well as file an appropriate Affidavit to that effect within three weeks.

In the event no such Application is filed or any steps taken in this regard the Bench will be left with no option but to proceed with the matter in accordance with law.

List for Directions on 05.12.2023.

Learned Counsel for the Respondent will serve a copy of the Application to the learned Counsel for the Appellant and he may file any objections if he so choses by the next date of hearing.”

22.     It is thus clear that the Revision was dismissed as not maintainable and the Appeal has been entertained without condoning the delay.

23.     Thus, this litigative journey from 1993 for the past 3 decades has remained inconclusive inspite of the fact that execution had partly been carried out and the only issue that remains for consideration is the claim of compound interest by the Complainant that is being resisted by the Appellant on the ground that the original order of the State Commission of 1997 nowhere directs payment of compound interest.

24.     The second ground of challenge on merits is that the State Commission while passing the Impugned Order on 05.10.2007 has completely ignored the fact and omitted to consider the objections that were taken on record and have been referred to herein above. It is urged that the recital made in the Impugned order that the calculation made by the Complainant has neither been controverted nor contradicted by the Respondents through any Affidavit is absolutely incorrect and against record inasmuch as such an Affidavit had already been filed on 09.12.2003. The State Commission clearly acknowledged the existence of such objections in its Order sheets as quoted above. It is therefore submitted that the objection to the calculations had not attained finality viz. – a – viz. the Appellant even though the Complainant had approached this Commission by filing Revision Petition No. 1694 of 2005 but the same was dismissed without entertaining the same on merits or even issuing any notices to the Appellants thereon.

25.     It is therefore submitted that the objections by the Appellant on 09.12.2003 remained pending before the State Commission and was subject matter of a recall as well, which came to be acknowledged, that was entertained by the State Commission but was not decided and the matter was disposed of erroneously by the Order dated 05.10.2007 without even referring to the same.

26.     It is therefore submitted that this issue of compound interest was totally alien to the controversy inasmuch as firstly it was not awarded by the State Commission in the Original Order dated 04.08.1997 nor the objections to the same as raised by the Appellant were decided by the State Commission in the Execution Proceedings on an incorrect premise that no objection has been raised. It is therefore submitted that on both these grounds the Order dated 05.10.2007 deserves to be set aside.

27.     The first issue is as to whether which of the proceedings can be said to be lawfully maintainable namely a Revision or an Appeal as against the Order dated 05.10.2007. The Order dated 05.10.2007 is an Order under the enforcement proceedings of Section 25 of the Consumer Protection Act, 1986. The said Order cannot be construed as an Order under Section 27 of the Act as it does not impose any penalty. It proceeds to dispose of the enforcement issue itself. Therefore there was no occasion at that stage to pass an Order imposing penalty under Section 27 inasmuch as the Order had to be enforced in terms of Sub-Section 3 of Section 25 of the Consumer Protection Act, 1986 by being dispatched to the Collector for realization of the amount as arrears of land revenue which was never done. The process was therefore not adopted and consequently the Order dated 05.10.2007 had not even reached to the stage of Section 27 of the Act. The said Order therefore cannot be construed to be an Order under Section 27 of the Consumer Protection Act, 1986 and it remained an order of enforcement under Section 25 of the Act. In these circumstances an Appeal under Section 27 A of the Consumer Protection Act, 1986 cannot be said to be maintainable against the said Impugned Order.

28.     Nonetheless the revision filed by the Appellant came to be dismissed on 15.05.2013 with an observation that an Appeal can be filed under Section 27 A of the Consumer Protection Act, 1986.

29.     This is how the present Appeal was filed in the year 2013.

30.     The issue which needs to be considered as on date had arisen on account of a 3 Member Bench decision of this Commission in First Appeal No. 493 of 2011 and connected Revision Petition No. 90 of 2011 decided on 09.01.2015. This larger Bench was constituted in order to answer the reference that was made to it with regard to maintainability or otherwise of the proceedings keeping in view the status of the Order which is under challenge.

31.     The larger Bench of three Members held that no Appeal would lie against an interim or final order of the State Commission regarding enforcement but a Revision would lie under Section 21(b) of the Consumer Protection Act, 1986. On an analysis of the present case as observed above, the Order under challenge dated 05.10.2007 is not an Order under Section 27 and therefore in view of the law laid down by the larger Bench referred to above, the present Appeal may not be maintainable and it is only a Revision that would lie.

32.     However the procedural difficulty is that the Order dismissing the Revision Petition as not maintainable on 15.05.2013 has become final in terms of Section 24 of the Consumer Protection Act, 1986. This Appeal therefore cannot examine the correctness of the said Order but an issue of jurisdiction which goes to the root of the matter can be considered at any stage of the proceedings as held by the Apex Court.

33.     Apart from this the decision of a larger Bench of this Commission is binding on a Coordinate Bench or a Bench of lesser number. This has been clarified by this Commission and has been upheld by the Apex Court and followed approvingly in the latest Order of this Commission in First Appeal No. 807 of 2023 Jaiprakash Associates Limited versus Gaurav Agrawal and Anr. decided on 03.10.2023.

34.     Thus the statutory position having been cleared the same cannot be overlooked even though the principle of Res Judicata applies at different stages of the same proceedings. The Order dated 15.05.2013 has become final in so far as the Appellant is concerned but in view of the fact that the larger Bench holds a the Revision Petition is maintainable in exercise of the powers vested in this Commission, the present Appeal may amount to a first Revision filed against the Order dated 05.10.2007, as the previous Revision which was filed, has been held to be not maintainable. This therefore would not be a Second Revision but would be the first to be entertained in the above peculiar circumstances at this stage. Thus, this Appeal is being treated as a limited Appeal, which is a revision, on the challenge raised.

35.     Having crossed this legal hurdle, the issue is about the impact of the Order dated 29.07.2005 in Revision Petition 1694 of 2005. It has been noted herein above that the aforesaid Revision was filed by the Complainant in which neither any notices were issued to the Appellant nor the issue of incorrect calculation of the amount was raised or decided. Consequently the said Order in my humble opinion would not be binding on the Appellant as he had already raised this issue in the Execution Proceedings through his Application dated 09.12.2003 that had not been disposed of and has been erroneously omitted to be considered while passed the Order dated 05.10.2007. The recital in the Impugned Order that the calculation had neither been controverted nor contradicted is therefore an error which amounts to a material irregularity and is also a perversity as it has ignored not only the Application dated 09.12.2003 but the same had been acknowledged in the Orders of the State Commission itself. The Orders passed from time to time for producing the calculation of interest including that by the Registrar of the State Commission was not complied with. It appears that the Order dated 05.10.2007 was passed by this Commission in disgust as the calculation matter could not be resolved in the background above and ultimately observed that in this long pending dispute there was only one alternative left by upholding the Order dated 02.08.2004. Thus, the State Commission committed an error by not proceeding to decide the objections raised by the Complainant either to the objections filed before it or even by getting the said objections resolved by the Registry which it failed to do so inspite of its own efforts. Consequently if the Commission failed to discharge its obligations then the Appellant cannot suffer because of the mistake of the Commission itself in proceeding to dispose of the matter in the light of what has been stated herein above.

36.     In this case on 21.09.2023 the case was represented by Mr. Tejendra Singh who was holding brief for Mr. Ramneet Mishra and had made a statement that since the Respondent had died therefore the Legal Representative / Legal Heirs have to be brought on record. They have failed to do so and therefore non-compliance of the directions dated 21.09.2023 cannot in any way be detrimental to the cause that has been raised by the Appellant in the present proceedings in the background of the facts narrated above. This litigation therefore has to be brought to its logical end and the curtains have to be drawn in order to finalize this issue relating to a Complaint of the year 1993.

37.     For all the reasons recorded herein above, the present Appeal in the shape of a limited Revision is entertained and the Impugned Order dated 05.10.2007 is set aside, inasmuch as, firstly there was no direction for payment of compound interest by the State Commission, secondly the calculation made by the Appellant was contested through effective Affidavits and Applications which have been omitted to be considered in the Impugned order by the State Commission and thirdly the State Commission itself has failed to discharge its obligations in attempting a correct calculation, and therefore all these three lapses and legal infirmity amount to a material irregularity on the grounds whereof the present First Appeal has to be allowed treating it as a Revision which is also a limited Appeal. The Appeal is accordingly allowed and the impugned order dated 05.10.2007 is set aside. No orders as to costs.