State Consumer Disputes Redressal Commission
U.P., Lucknow.
Revision No. 46 OF 2012
- Prem Chandra Sharma aged about 76 years,
s/o LateSriRamSwaroop R/o185 , Geeta
Apartment, GeetaColony ,Delhi ……………………Revisionist.
Versus
Greater Noida Industrial Development Authority,
169, Chitvan Estate, Sector Gamma, Greater Noida,
District Gautam Budh Nagar through its
Mukhya Karyapalak Adhikari ….Respondent.
Present:-
- Hon’ble Shri Govardhan Yadav , Member.
2- Hon’ble Shri Rajendra Singh, Member.
3- Hon'ble Shri Vikas Saxena, Member.
Sri Sanjai Kumar Varma , learned counsel for the revisionist.
Sri Rajesh Chadha , learned counsel for the opposite party.
Date 20.01.2021
JUDGMENT
Per Shri Rajendra Singh, Member.
This Revision has been preferred under section 17 (1) (B) of the Consumer protection act, 1986 against the order dated 16.02.2012 in Execution case number 66 of 2000, passed by District Consumer Forum , Gautam Budh Nagar.
We have heard the learned counsel for the parties and have gone through the records.
In short the revisionist version is that the impugned order dated 10.02.2012 is arbitrary, illegal and have been passed against the law, hence liable to be set aside. The impugned order is without proprietary and has been passed on surmises and conjectures only .The revisionist is a senior citizen of India who purchased a shop for his livelihood and for self-employment. One shop was allotted to the revisionist on 17.03.2001 measuring area about 17.45 m² for Rs.51,151 per square metre that is Rs. 893,097 for commercial shop number BS – 6 of Sector Beeta I. The 30% of premium Rs.207,775.49 .00, after adjusting earnest money, was deposited in 30 days of
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issue of allotment letter and balance 70% was to be payable in 14 equal half yearly instalments, each of Rs.73, 600.68 which includes interest at a rate of 15% per annum as per brochure and allotment letter dated 17.03.2001. The revisionist has deposited rupees 2 lacs on 14 May 2001 and Rs. 8000 on 4 June 2001 and possession of the shop was to be delivered up to 17 March 2002 as per terms and conditions of the brochure and allotment letter but due to delay in construction the opposite party could not give possession to the revisionist in prescribed time limit.
The partial construction in part has been completed on 15 July 2003 after 16 months delay, the revisionist requesting the opposite party that the instalment scheduled be extended to the next 16 months and given possession of the aforesaid shop but the opposite party did not give response, and the complete construction of the premises of shop could not be completed until January 2012 i.e, the entrance of the complex through three gates, car parking and service road et cetera as per terms and conditions of the brochure plan. The revisionist has written many letters to the opposite party for this purpose but the opposite party did not give any answer. The revisionist has deposited instalments up to 23.08.2006, total comes Rs. 741,111 i.e, 83% amount has been deposited by the revisionist till date . But the opposite party did not give possession of the shop till date, while the possession was to be given within one year from the date of allotment, i.e, 17.03.2001. Due to delay in construction, the lease deed was extended from 17 March 2002 to August 2003 and the provision of incentive for functioning the shop was also extended from 17 May 2002 to 16 August 2003 . But the instalment schedule has not been extended. The revisionist has sent many letters to the opposite party for the purpose of instalment schedule extension and complete the construction as per brochure to next 16 months but the opposite party did not give any response.
The learned District Consumer Forum, has erred in law and ineffective in not appreciating this fact that the opposite party himself admitted in para 18 of the written statement that
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the possession was to be delivered by 17 March 2003 but due to delay in construction, the possession of the shop was offered in February 2003. The opposite party has always given false statement and also misguided the learned DCF and revisionist. The Learned District Forum has not looked into the matter and partly allowed the complaint of the revisionist, the revisionist has then filed execution case before DCF Gautam Budh Nagar for compliance of judgement and order dated 18.03.2009. The opposite party has not filed appeal against the judgement /order dated 18.03.2009 till date hence the judgment and order dated 18.03.2009 has become final against opposite party.
The revisionist has filed execution case number 68/09 for compliance of judgement and order dated 18.03.2009 before the learned District Forum Gautam Budh Nagar, but the Learned District Forum has not complied with the order according to judgement / order and passed an illegal order which is liable to be set aside. The Learned District Forum has passed a judgement and order dated 18.03.2009, where it directed the opposite parties to execute the lease deed in favour of the complainant within two months, and also to take the rest amount in instalments according to prior terms and conditions of the allotment letter. The revisionist has deposited instalments up to 23.08.2006 and the total comes Rs.741,111 that is 83% amount has been deposited by the revisionist till date. The learned District Forum Gautam Budh Nagar’s has not complied with his own order dated 18 March 2009 and the DCF Gautam Budh Nagar dismissed execution case of the revisionist on 10.02.2012.
The revisionist has deposited 83% amount but the opposite party has not given possession and did not execute the deed till date while only 30% amount was to be deposited for obtaining possession according to terms and conditions, but after a long time of seven years, the opposite party executed only agreement to lease on 31 March 2010. It is pertinent to mention here that the opposite party has not followed terms and
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conditions which is given in the allotment letter and also brochure. The revisionist has deposited Rs.741,111/- against Rs.893,097 i.e. 83% amount had been deposited by the revisionist and rest amount of Rs. 151,986/- may be deposited in instalments after possession. The opposite party could not impose penalty and interest et cetera. Para three of the lease deed dated 31.03.2010 says that the allottee shall be bound to have the lease deed executed within a period of 90 days from the date of authority calls upon the allottee to have the lease deed of the allotted plot executed in his favour, but the authority did not call him till date meaning thereby that the authority was not in a position to call for execution of the deed and for delivering the possession of the shop because the shop of beta one complex was not ready for delivering possession and the work of the beta one complex was under process till 22.02.2012 as per document of the authority but now the shop of beta one is ready to deliver possession. Therefore the revisionist has sent a letter to the authority for executing lease deed and for delivering physical possession of the shop but in vain.
The opposite party was not in a position to deliver the possession of shop before 22.02.2012 because the work of beta one complex was not completed before that date, the beta one complex has been completed on 22.02.2012 as per opposite party’s letter dated 22.12.2011. Hence the terms and conditions of the allotment letter are applicable upon the opposite party and also the benefit of provision of incentive for functioning of the shop is to be applicable after possession. The opposite party has always misguided the revisionist hence the revisionist has obtained information through RTI and detailed objections dated 28.04.2010, 30.10.2010 and 04.02.2012 have been filed by the revisionist before DCF Gautam Budh Nagar. But the learned DCF has not considered the abovesaid objections, hence grave injustice has been done by the learned District Forum Gautam Budh Nagar to the revisionist and therefore the revision is liable to be allowed.
The Learned District Forum has erred in law and in fact in
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not appreciating this fact that the appellant had deposited 83% amount of the premium but the opposite party did not give possession of the shop till date hence grave injustice has been done by the Learned District Forum to the revisionist and so the revision is liable to be allowed. The learned District Forum did not consider that the construction was to be completed in the month of February 2012 that is a delay of nine years hence the revisionist is entitled to recover interest @ 15% per annum on the deposited amount. The respondent has made the revisionist to undergo mental tension, harassment and severe financial loss due to their intentional and deliberate negligent acts reflecting deficiency in service by the opposite party/respondent. The order of the learned District Consumer Forum is improper and unjust too and is liable to be modified as far as the quantum of compensation and other reliefs are concerned by the Hon’ble State Commission.
The learned District Consumer Forum did not appreciate that the respondent tried to save him from Follies, irregularities, illegal actions made by him and wrong information conveyed to the revisionist and also making false assurances to the revisionist which are all covered under the term deficiency in services and therefore, the respondent is liable for damages and other claims made by the revisionist in his execution case in toto, hence the impugned order is liable to be interfered with by this Hon’ble Commission. The order of the learned District Forum is perverse and the impugned order is patently erroneous, factually wrong and is opposed to law, facts are and probabilities of the case and as such is liable to be interfered by this Hon’ble State Commission.
Therefore the impugned order dated 10.02.2012 is liable to be set aside with cost and District Forum be directed to comply with the order dated 18.03.2009.
Vide judgement/order dated 18 March 2009 the district forum decreed the complainant’s case partially and directed the opposite party to execute the lease deed within two months
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from the date of receiving this order and hand over the possession of the shop . The opposite party was also ordered to fix the instalments on pre-conditions and will recover the balance from the complainant.
The District Consumer Forum Gautam Budh Nagar vide its order dated 10 February 2012 in Complaint case number 66/09 has said that it is sufficient to prove that some amount of the shop is to be paid by the decree holder Prem Chandra Sharma and which is to be paid as per preconditions and the decree holder did not say in his objection that the amount due against him is in violation of the pre-conditions . There is no order under decree that no interest or panel interest could not be recovered from the decree holder and therefore the executive court has no jurisdiction to decide in this matter. The Executive Court has said that the decree holder did not pay the balance amount to the opposite party and the decree holder is not ready to comply with this order either in writing or orally at any place therefore the forum is of the view that there is nothing to proceed against the opposite party hence the execution application of the decree holder is dismissed.
The State Consumer Disputes Commission in appeal number 610/2009 filed by Prem Chandra Sharma against the judgement dated 18.03.2009 passed by District Forum Gautam Budh Nagar in complaint case number 344/2007, passed order on 2 July 2009 and said “The appellant/ complainant was allotted a shop, possession of which was proposed to be delivered on payment of 30% of the total price. The appellant failed to carry out his part of obligation and did not comply with the letter dated 16 August 2003 whereby he was asked to take delivery of possession. Admittedly there was default in payment of not only the 30% of the total price but also the balance thereof. A sum of Rs.151,956 is still outstanding against the appellant. We do not find any merit in this appeal. The District Consumer Forum below has also recorded a finding against the complainant to the effect that since the complainant himself is a defaulter, he is not entitled to any relief. We endorse the finding and conclusion arrived at by the Forum below and find no merit in this appeal .Resultantly it is dismissed.”
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A Revision Petition Number 3843/2009 has been filed before the National Consumer Commission by Prem Chadra Sharma against the order dated 2 July 2009 passed by State Consumer Commission. The Hon’ble National Commission in his judgement dated 2 August 2018 has said:
“ ….. A perusal of the prayers made in the complaint shows that the main prayer was for handing over of the possession of the shop and execution of its lease deed. Both these reliefs were granted by the District Forum. It is not clear as to why the complainant referred appeal against this order. The State Commission has already dismissed the appeal. As the order of the State Commission is based on correct appreciation of facts and law, I do not find any ground to interfere with the order passed By the State Commission. The main reliefs prayed in the complainant have already been granted by the District Forum, hence, I do not find merit in the revision petition. Accordingly, the Revision Petition Number 3843 of 2009 is dismissed. Now the complainant/petitioner may seek execution of the order dated 18 March 2009 of the District Forum which has become final if the complainant is not satisfied with the response of the Authority on compliance of the order of the District Forum.”
Now it is clear that against the judgement/order of District Forum Gautam Budh Nagar, the appellant preferred an appeal number 610/2009 before the State Commission, which was dismissed on 02.07.2009. A revision petition number 3843/2009 has been filed before the Hon’ble National Consumer Commission against the State Commissions order dated 2 July 2009 and this revision petition has been dismissed by the Hon’ble NCDRC on 02.08.2018. Against the order of Hon’ble Commission no petition has been filed so far, therefore, the order of the District Forum Gautam Budh Nagar dated 18 March 2009 has become final. Execution Petition number 66/09 has been filed before the District Forum Gautam Budh Nagar and which was dismissed on 10.02.2012. Against this order of the Execution Court Gautam Budh Nagar the present Revision
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Petition has been filed before the State Commission .It is strange to see that when the judgement/order of the District Forum Gautam Budh Nagar has become final and both the appeal and revision have been dismissed by the State Commission and Hon’ble National Commission, how can the order in execution can be questioned ? The Hon’ble National Commission did not find any merit in the revision petition. Now we find no force in this revision petition and it is liable to be dismissed . It is misuse of Judicial system and it demands that a cost be imposed on the revisionist for such mis use of the judicial system .
ORDER
The revision petition is dismissed. Cost of Rs 10,000.00 on the revisionist to be deposited with “Consumer Legal Aid Account” within 15 days and copy of counter deposit slip be submitted.
(Vikas Saxena) (Goverdhan Yadav) (Rajendra Singh)
Member Presiding Member Member
Judgment dated/typed signed by the us and pronounced in the open court.
Consign to record.
(Vikas Saxena) (Goverdhan Yadav) (Rajendra Singh)
Member Presiding Member Member
Jafri/Court 2
