HON’BLE MR. DINESH SINGH, MEMBER 1. E.A.s no. 49 of 2018 and nos. 91 to 108 of 2018 (total 19 E.A.s) have been filed apropos this Commission’s Order dated 07.06.2016 in C.C. no. 1375 of 2015 as modified by Hon’ble Supreme Court vide its Order dated 26.08.2016 in C.A. no. 7371 of 2016. Similar facts and same questions of law are involved in all the 19 E.A.s. All the applicants in the said 19 E.A.s are represented through learned counsel, Mr. Amarjeet Singh, advocate. The entire material, relevant to these 19 E.A.s, was placed before us in the case-file of E.A. no. 49 of 2018. 2. Mr. Amarjeet Singh, learned counsel argued on behalf of all the decree holders – execution applicants in the 19 E.A.s.Mr. Pinaki Mishra, learned senior counsel argued on behalf of the judgment debtors – accused. We perused the material on record, including inter alia specifically: [a] the execution application(s); [b] this Commission’s previous Order dated 01.05.2019; [c] the affidavit dated 14.05.2019 of Mr. Rakesh Kerwell, Director of the builder co., filed through counsel in compliance of this Commission’s Order dated 01.05.2019; and [d] the reply affidavit dated 06.07.2019 of Mr. Ramesh Goyal, the execution applicant in E.A. no. 94 of 2018, filed through counsel in response to the affidavit dated 14.05.2019 of Mr. Rakesh Kerwell, Director of the builder co. 3. The chronology, in brief, leading to these execution applications, is that complaint case no. 1375 of 2015 Satish Kumar Malhotra & 49 Ors. vs. DLF Homes & Anr. was decided by this Commission vide its Order dated 07.06.2016. Hon’ble Supreme Court vide its Order dated 26.08.2016 in C.A. no. 7371 of 2016 DLF Ltd. & Anr. vs. Satish Kumar Malhotra & Ors. modified this Commission’s Order dated 07.06.2016. 4. Reading of the execution applications, including inter alia specifically the prayer made therein, shows that these execution applications have been filed under section 25(3) and section 27(1) of the Act 1986. 5. Section 25(3) deals with ‘enforcement’ of an order made by the National Commission where any amount is due from any person: Section 25. Enforcement of orders of the District Forum, the State Commission or the National Commission. — (1) - - - (2) - - - (3) Where any amount is due from any person under an order made by a
District Forum, State Commission or the National Commission, as the case may be, the person entitled to the amount may make an application to the District Forum, the State Commission or the National Commission, as the case may be, and such District Forum or the State Commission or the National Commission may issue a certificate for the said amount to the Collector of the district (by whatever name called) and the Collector shall proceed to recover the amount in the same manner as arrears of land revenue. Section 27 deals with ‘penalties’ for failure or omission to comply with any order made by the National Commission: Section 27. Penalties. — (1) Where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person or complainant shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousands rupees but which may extend to ten thousand rupees, or with both: (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974), the District Forum or the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of the first class for the trial of offences under this Act, and on such conferment of powers, the District Forum or the State Commission or the National Commission, as the case may be, on whom the powers are so conferred, shall be deemed to be a Judicial Magistrate of the first class for the purpose of the Code of Criminal Procedure, 1973 (2 of 1974). (3) All offences under this Act may be tried summarily by the District Forum or the State Commission or the National Commission, as the case may be. 6. Here we would first want to reproduce the Orders dated 19.03.2019 and dated 01.05.2019 passed by this Commission during the proceedings on these 19 E.A.s: Dated : 19-03-2019 ORDER Heard learned counsels for the execution applicants – decree holders and respondents – judgment debtors. Perused the material on record. Execution applications no. 91 to 108 of 2018 have been filed under section 25 and 27 of the Act 1986. We have specifically perused the execution applications and in particular prayer ‘A’ made therein (under section 27). Learned counsel for the execution applicants – decree holders submits that the Directors of the judgment debtor company be also made respondents – judgement debtors – accused in specific reference to section 27 of the Act, and seeks a time of two weeks to file their names and addresses. He further undertakes to serve them ‘dasti’. Learned counsel for the execution applicants – decree holders is allowed to include the Directors of the judgement debtor company as respondents - judgment debtors – accused in specific reference to section 27 in the execution proceedings. He shall file their names and addresses with the Registry within two weeks positively. The Registry is directed to thereafter issue notice of the execution applications to the said Directors of the judgment debtor company within two weeks positively. Learned counsel for the execution applicants – decree holders is also requested to serve notice of the execution applications on the said Directors of the judgement debtor company within four weeks positively. The said Directors of the judgement debtor company are directed to appear before this Commission on the next date of hearing. They are also directed to file their respective responses to the execution applications before the next date of hearing. List on 01.05.2019 for further proceedings. The said Directors of the judgement debtor company are granted liberty to seek exemption from personal appearance through a formal application filed through counsel for this particular date only (i.e. for 01.05.2019 only). Let a copy of this Order be sent to the execution applicants – decree holders by the Registry within 10 days. At the request of learned counsel for the execution applicants – decree holders, ‘dasti’ in addition. Dated: 01.05.2019 ORDER The learned counsel for the execution applicants – decree holders submits that in compliance of the direction contained in the previous Order dated 19.03.2019, he has filed the names and addresses of the Directors of the judgment debtor company and has also served them ‘dasti’. He has also filed an amended memo of parties. The learned senior counsel for the judgment debtor company and its Directors submits that, at this stage, in these execution proceedings, exemption from personal appearance of the Directors may be granted for today and also till further orders of this Commission, that is, till as and when this Commission in its wisdom finds it appropriate and necessary to require their presence in person. This is a fair submission. It is acceded to. Learned counsel, Mr. Pravin Bahadur, Advocate agrees to represent the Directors of the judgment debtor company in inter alia penal proceedings under section 27 of the Act 1986. Till this Commission requires the personal presence of any or all of its Directors, they shall be represented through counsel and through the learned counsel, Mr. Pravin Bahadur, Advocate, on each and every date. It goes without saying that learned counsel, Mr. Pravin Bahadur, Advocate is allowed to file any application on any date for not being able to appear due to his personal difficulty. The learned senior counsel draws attention to Hon’ble Supreme Court’s order dated 26.08.2016 in Civil Appeal No. 7371 of 2016, DLF Ltd. & Anr. vs. Satish Kumar Malhotra & Ors., which inter alia reads as below: “In course of hearing, learned counsel for the parties have agreed that the respondents who have not been handed over the flats, shall be handed over the same positively by 30th November, 2016. It is further agreed that instead of 12% interest, the respondent shall be granted 9% interest from expiry of three years from the date of agreement. Needless to say, the compensation that has been fixed by the National Consumer Disputes Redressal Commission (for short, ‘the National Commission’) for delay in delivery shall become effective if the possession is not handed over on or before 30th November, 2016. It is also clarified that apart from interest at 9% and what we have mentioned above, nothing else shall be claimed. “Recording such concession by the learned counsel for the parties, the order passed by the National Commission stands modified. “The civil appeal is disposed of accordingly. “As the order is passed on concession, the order passed shall not be treated as precedent. No costs.” (emphasis supplied) Learned senior counsel further submits, on instructions, that the judgment debtor builder company has complied with the Order dated 26.08.2016 of Hon’ble Supreme Court in its entirety and that a report – in – compliance - on affidavit signed by Mr. Rakesh Kerwell, Director, who is the concerned Director of the builder company responsible for the subject project, shall be filed by the builder company within two weeks with a copy thereof to the learned counsel for the execution applicants. The learned counsel for the execution applicants is directed to thereafter file his reply to the said report – in – compliance - on affidavit with a copy thereof to the learned senior counsel for the builder company and its Directors and to the learned counsel, Mr. Pravin Bahadur, Advocate. List on 17.07.2019 for further hearing. 7. The execution applications are, albeit, somewhat nebulously articulated. That being as it is, the sum and substance and import of the applications is that the directions contained in Hon’ble Supreme Court’s Order dated 26.08.2016 have not been complied with in their entirety. The contentions of the execution applicants are based solely on the proposition that in its Order dated 26.08.2016 Hon’ble Supreme Court has absorbed this Commission’s Order dated 07.06.2016. The execution applicants have sought ‘enforcement’ under section 25(3) and ‘penalties’ under section 27(1) of the Act 1986. 8. Extracts from Hon’ble Supreme Court’s Order dated 26.08.2016 in C.A. no. 7371 of 2016 have been quoted verbatim in this Commission’s Order dated 01.05.2019 reproduced in para 6 above. They are repeated below for ready convenience: The learned senior counsel draws attention to Hon’ble Supreme Court’s order dated 26.08.2016 in Civil Appeal No. 7371 of 2016, DLF Ltd. & Anr. vs. Satish Kumar Malhotra & Ors., which inter alia reads as below: “In course of hearing, learned counsel for the parties have agreed that the respondents who have not been handed over the flats, shall be handed over the same positively by 30th November, 2016. It is further agreed that instead of 12% interest, the respondent shall be granted 9% interest from expiry of three years from the date of agreement. Needless to say, the compensation that has been fixed by the National Consumer Disputes Redressal Commission (for short, ‘the National Commission’) for delay in delivery shall become effective if the possession is not handed over on or before 30th November, 2016. It is also clarified that apart from interest at 9% and what we have mentioned above, nothing else shall be claimed. “Recording such concession by the learned counsel for the parties, the order passed by the National Commission stands modified. “The civil appeal is disposed of accordingly. “As the order is passed on concession, the order passed shall not be treated as precedent. No costs.” (emphasis supplied) A plain reading shows that Hon’ble Supreme Court passed its Order of 26.08.2016 with the consent of the parties, it passed its Order on concession, it modified the Order of this Commission, its Order was not to be treated as precedent. There is reference to this Commission’s Order in respect of compensation fixed for delay in delivery. The said reference and its implication is in a specific particular context only. It can in no way be construed to imply that Hon’ble Supreme Court absorbed this Commission’s Order, or specifically that Hon’ble Supreme Court included any direction / s contained in this Commission’s Order as an additionality to the directions given by the Hon’ble Court in its own Order. The correct position is that Hon’ble Supreme Court modified the Order of this Commission, it did not absorb this Commission’s Order, and the reference to this Commission’s Order in respect of compensation fixed for delay in delivery and its implication are in a specific particular context only and are limited and confined to that context only. The argument made by the learned counsel for the execution applicants, that the Hon’ble Supreme Court absorbed the Order of the National Commission, is totally erroneous (a mere reading of Hon’ble Supreme Court’s Order shows it to be otherwise). 9. This Commission has to go by the letter of Hon’ble Supreme Court’s Order, it cannot add to or subtract from it, it cannot venture into clarifying it. The execution applicants have not filed any clarificatory application(s) before Hon’ble Supreme Court. 10. The affidavit dated 14.05.2019 of Mr. Rakesh Kerwell, Director of the builder co., categorically affirms that the Order dated 26.08.2016 of Hon’ble Supreme Court has been complied with in its entirety. Going by its sum and substance and import, the reply affidavit dated 06.07.2019 of Mr. Ramesh Goyal, execution applicant in E.A. no. 94 of 2018, affirms that the directions contained in Hon’ble Supreme Court’s Order dated 26.08.2016 have not been complied with in their entirety. This affirmation is based on the (erroneous) proposition that Hon’ble Supreme Court absorbed this Commission’s Order, and did not in effect substitute it. 11. We note that of the 50 complainants in C.C. no 1375 of 2015, only 19 have filed these execution applications. 12. In respect of all of the said 19, occupancy certificates have been received, individual offers of possession have been made, and respective amounts of compensation has been paid / adjusted. In respect of 15 of these 19 (excluding the 4 execution applicants in E.A. nos. 98, 99, 100 and 101 of 2018) possession has been taken. The position has been explicitly affirmed, with clear details in tabular form, in respect of each execution applicant, individually, in the affidavit dated 14.05.2019 of Mr. Rakesh Kerwell, Director of the builder co. It has also been explicitly affirmed therein that the Order dated 26.08.2016 of Hon’ble Supreme Court has been complied with in its entirety. No factual inaccuracy in the affidavit filed by Mr. Rakesh Kerwell, Director of the builder co. has been argued by learned counsel for the execution applicants, Mr. Amarjeet Singh, advocate. There is nothing on record to show that the builder co. was / is not willing and ready to deliver possession to the 4 execution applicants in E.A.s no. 98, 99, 100 and 101 of 2018 as and when they come forth to take possession. 13. The whole case professed by learned counsel for the execution applicants is based on the (mis)conception that Hon’ble Supreme Court has absorbed this Commission’s Order dated 07.06.2016 in its Order dated 26.08.2016, which, as already said in para 8 above, is totally erroneous. 14. When the Order dated 26.08.2016 of Hon’ble Supreme Court, which was passed on consent, was passed on concession, was to modify the Order of this Commission, was not to be treated as precedent, was in effect in substitution of this Commission’s Order dated 07.06.2016, did not absorb this Commission’s Order, and has been complied with in its entirety, nothing survives for ‘enforcement’ under section 25(3) or ‘penalties’ under section 27(1). 15. Of the two, the section 25(3) and the section 27(1), we take serious note of misuse or malafide attempt to misuse of section 27(1). Section 27 provides for ‘penalties’ of imprisonment or fine or both. Under section 27, in trial of offences, the executing forum has the power of and is deemed to be a judicial magistrate of the first class for the purpose of the Code of Criminal Procedure. The judgment debtor is an accused. This section cannot be equated with other provisions of the Act 1986 providing for adjudication of ‘consumer disputes’. By its distinctive nature, this section has to be used with the good conscience and the clean hands, which is required and warranted for the purpose the section is meant for. 16. We may first note that, this Commission, in its proceedings of 19.03.2019, took section 27 with the gravity that it merited. Learned counsel for the decree holders – execution applicants was allowed to include the Directors of the judgement debtor company as judgment debtors – accused in specific reference to section 27 in the execution proceedings: Execution applications no. 91 to 108 of 2018 have been filed under section 25 and 27 of the Act 1986. We have specifically perused the execution applications and in particular prayer ‘A’ made therein (under section 27). Learned counsel for the execution applicants – decree holders submits that the Directors of the judgment debtor company be also made respondents – judgement debtors – accused in specific reference to section 27 of the Act, and seeks a time of two weeks to file their names and addresses. He further undertakes to serve them ‘dasti’. Learned counsel for the execution applicants – decree holders is allowed to include the Directors of the judgement debtor company as respondents - judgment debtors – accused in specific reference to section 27 in the execution proceedings. He shall file their names and addresses with the Registry within two weeks positively. (extracts from the Order dated 19.03.2019 of this Commission) We also note that all the 23 Directors of the judgement debtor company – accused were dutiful in putting in appearance (through counsel) on the date fixed: The learned senior counsel for the judgment debtor company and its Directors submits that, at this stage, in these execution proceedings, exemption from personal appearance of the Directors may be granted for today and also till further orders of this Commission, that is, till as and when this Commission in its wisdom finds it appropriate and necessary to require their presence in person. This is a fair submission. It is acceded to. Learned counsel, Mr. Pravin Bahadur, Advocate agrees to represent the Directors of the judgment debtor company in inter alia penal proceedings under section 27 of the Act 1986. (extracts from the Order dated 01.05.2019 of this Commission) We but then note that even after this Commission, in recordings its Order of 01.05.2019, supplied emphasis to the key sentences and words in extracts from Hon’ble Supreme Court’s Order, the execution applicants ignored the letter of Hon’ble Supreme Court’s Order, did not seek any clarification etc. from Hon’ble Supreme Court, and continued to agitate, irrationally and illogically, on the totally erroneous proposition that Hon’ble Supreme Court’s Order absorbed this Commission’s Order, when a mere reading of Hon’ble Supreme Court’s Order, and especially so with its key sentences and words duly emphasised, showed it to be otherwise, and when the execution applicants were represented through advocate (and were not in person) i.e. they had a lawyer to elucidate on the law. There is a distinct difference between bonafide misappreciation of facts or law, and malafide misinterpretation of facts or law (in specific context of the distinctive section 27). Section 27 is not meant to be a tool for undue or unjust harassment, for creating nuisance or nuisance value, for misuse or malafide attempt to misuse, for wasting the time and resources of this Commission. 17. In the light of the above discussion: (i) The execution applications, no. 49 of 2018 and nos. 91 to 108 of 2018, are determined to be ill-conceived and bereft of merit. They are dismissed, both re ‘enforcement’ under section 25(3) and re ‘penalties’ under section 27(1). (ii) Execution Applications under section 27 of the Act 1986 are not meant to be malafide expeditions, ex facie. A cost of Rs.10,000/- each is imposed on the 19 execution applicants (total 19 x 10,000 = Rs. 1,90,000/-), to be deposited by the execution applicants with the ‘Consumer Legal Aid Account’ of this Commission within four weeks of the pronouncement of this Order. 18. The Joint Registrar is directed to monitor compliance of deposit of cost and to place this matter before this bench on the immediate next working day after the expiry of four weeks of the pronouncement of this Order. 19. It goes without saying that in the contingency that the builder co. is in any manner not willing and ready to deliver possession to the 4 execution applicants in E.A.s no. 98, 99, 100 and 101 of 2018 herein, as and when they come forth to take possession, the said 4 complainants in C.C. no. 1375 of 2015 can seek remedy by filing fresh execution applications before this Commission on this count. The builder co. is advised to duly ensure immediate delivery of possession as and when they come forth to take possession, and not be found lacking on this count. 20. And it also goes without saying that in the contingency that any of the other 50 (-) 19 = 31 complainants in C.C. no. 1375 of 2015 finds any direction / s of Hon’ble Supreme Court’s Order of 26.08.2016 not being complied with by the builder co., he can duly move execution before this Commission. 21. So disposed. | 
