Haryana

Karnal

EA/15/2019

Smt. Bindu Bansal - Complainant(s)

Versus

Haryana Urban Development Authority - Opp.Party(s)

Vineet Kapoor

28 Oct 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                                     Execution No.15 of 2020

                                                                     Date of instt. 25.01.2019

                                                                     Date of Decision 28.10.2020

 

1.      Smt.Bindu Bansal wife of Shri Suresh Bansal;

2.      Suresh Bansal son of Bhagwat Parsad, both residents of H.No.1196, Sector-13, Urban Estate, Karnal.

                                                                             …….Decree holders

                                       Versus

 

Haryana Urban Development Authority (now Haryana Shahri Vikas Pradhikaran) through its Estate Officer, Sector-12, Urban Estate, Karnal.  

                                                                             …..Opposite party.

 

Execution application under Section 27 of Consumer Protection Act

 

Before       Sh. Jaswant Singh…….…President  

Sh.Vineet Kaushik ………..Member

                    Dr. Rekha Chaudhary…….Member

 

Present:    Shri Vineet Kapoor, counsel for DHs.

                   Shri Amit Munjal, counsel for JD.

 

ORDER:

                   Vide this order, we dispose of application under Section 27 of Consumer Protection Act, 1986.

2.                The brief facts of the complaint arising the present execution petition are that the complainants had purchased a double storey shop with basement from original allottee vide re-allotment letter dated 12.12.2012. As per clause 16 of the allotment letter, the opposite party (OP) was to complete the construction within two years from the date of offer of possession of plot i.e. 29.10.2012. Vide letter dated 4.3.2013, the complainants requested the opposite party (OP) to construct the road, lighting, pakka thara, platform and road to reach the shop but OP did not respond. The complainants moved an application under Right to Information Act, seeking information regarding development work and in reply, it was mentioned that as per report received from HUDA, the development work beside electricity work has already been completed. Again on 3.10.2013, Executive Engineer, HUDA specifically mentioned that no pavement existed to reach the plot No.362-363 and estimate of construction of pavement was under process and would be constructed after approval of estimate. The OP admitted that upto 25.3.2015, no construction work as per allotment letter was done. The complainants had paid six installments along with 25% of basic price of the plot, but no development was done by HUDA (OP).  The complainants were not liable to pay extension fee as well as remaining installments. Thus there was deficiency in service on the part of OPs.

3.                In reply, HUDA (OP) submitted that after completing the development work, the commercial sites were proposed for open auction. As per condition No.11, the premix carpets and pavements in the shopping centre will be completed/ provided after 50% construction in the respective shopping centre. The complainants are re-allottees vide letter No.923 dated 12.12.2012. The roads upto WMB level was done before auction of the plots. They could not raise construction within stipulated period. Thus there was no deficiency in service on the part of OP.

4.                After analyzing the evidence of both the parties and after hearing the arguments, this Commission was allowed the complaint and passed the following order:-

“We accept the present complaint and direct the opposite party to provide basic facilities at the spot as per condition of the auction and then issue fresh letter of offer of possession within 30 days after completion of development work of basic facilities. The opposite party (OP) is not entitled to charge any interest from the complainants on the installments and extension fee till the date of fresh offer of possession after completion of the basic facilities. It was also directed that OP shall pay ₹11,000/- to the complainants on account of mental agony and harassment suffered by them and for the litigation expenses. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance” 

5.                Aggrieved to the order of this Commission, OP/JD filed appeal before Hon’ble State Commission, wherein Hon’ble State Commission passed thus:-

“Before parting with writing of this order, the officials of the present appellant is directed to complete the developmental work within the period of three months from the date of passing this order and thereafter, the fresh letter of possession would be offered to the complainants and then only it (HUDA) would be entitled to charge the interest and whatever the interest had already been charged by the appellant, is directed to refund within the period of three months alongwith interest @ 12% per annum from the date of deposit till realization or at the most this amount can be adjusted in case any other amount is payable by the complainants to the appellant. The complainants are also entitled to ₹3,00,000/- for compensation of mental agony and physical harassment. In addition, the complainants are also entitled to ₹21,000/- as litigation charges. With this modification, appeal stands disposed off. It is also made clear that for non-compliance, the provisions enshrined under section 27 of the Consumer Protection Act would also be attractable. The opposite parties were also directed to fix the responsibility to the concerned official, who was responsible for delay and loss suffered by the department be recovered from the concerned employee as per opinion of Hon’ble Supreme Court.” 

 

6.                Complainants/DHs filed the present application under Section 27 of Consumer Protection Act, 1986, on 25.1.2019, whereby they sought execution of the order dated 1.5.2017 passed by this Commission and order dated 26.11.2018, passed by Hon’ble State Commission.

7.                During the pendency of the present execution, JD approached to the Hon’ble National Commission and Hon’ble National Commission vide order dated 7.1.2020, partly allowed the revision and passed the following order:-

“Based on the above discussion, the revision petition No.2579 of 2019 is partly allowed and the order dated 26.11.2018 of the State Commission is modified to the extent that the petitioner herein will pay ₹40,000/- as compensation instead of ₹3,00,000/- as ordered by the State Commission. The petitioner herein will also pay a sum of ₹20,000/- to the complainants as cost for condoning the delay in filing the present revision petition. Rest of the order of the State Commission remains unchanged.”

8.                The JD was also filed petition for Special Leave to Appeal before the Hon’ble Supreme Court of India, which was also dismissed vide order dated 19.06.2020. 

9.                On 12.10.2020, Shri Dharamvir, Executive Engineer, HSVP, Karnal appeared and suffered his separate statement to the effect that the development work had already been started at the site and he undertakes that it will be completed within three months from today.

10.              On 22.10.2020, Shri Sushil Kumar, Deputy Superintendent, HSVP, Karnal, appeared on behalf of Estate Officer, HSVP, Karnal and suffered his separate statement to the effect that in the present case, possession will be offered within fifteen days after completion of basic development work at the site in question.

11.              Today i.e. on 28.10.2020, learned counsel for DHs has also suffered his statement to the effect that out of total principal amount of the plot in question i.e. ₹1.40 crore, an amount of ₹64,62,276/- had already been deposited by the decree holders to the JDs in the shape of installments of the plot in question towards principal amount and an amount of ₹60,000/- is to be paid by the JD to the DHs in lieu of compensation awarded by Hon’ble National Commission. Thus, total amount becomes as ₹65,22,276/-. The decree holders pray that total amount i.e. ₹65,22,276/- may kindly be adjusted in the principal amount of the plot in question. The DHs undertakes that the remaining outstanding amount i.e. ₹74,77,724/- which is due towards the DHs, the same will be deposited by them, after completion of development work and after issuance of fresh offer of possession letter as per the statements suffered by XEN, and Deputy Superintendent, HSVP, Karnal. Decree holders have no objection, if the present execution application is disposed of on the aforesaid terms and conditions.

12.              Learned counsel for the JD submitted that an amount of ₹64,62,276/- which was deposited by the DHs is not only the principal amount, whereas, it includes the interest amount too which was imposed on the principal amount for making the payment beyond the schedule, hence, DHs are not entitled for the same. Learned counsel for JD further submitted that it is the duty of the executing Court to ascertain true effects of the decree. In this regard, he placed reliance upon the case title Bhavan Vaja And others Versus Solanki Hanuji Khodaji Mansang and another 1972 AIR (SC) 1371.  Learned counsel for JD further submitted that at the worst the decree can be said to be ambiguous. In such a case, it is the duty of the executing court to construe the decree. For the purpose of interpreting a decree, when its terms are ambiguous the Court would certainly be entitled to look into the pleadings and the judgment. In this regard, he placed reliance on case title Sukhdev and others Versus Smt.Krishna Devi and others CR No.794 of 2010 (O&M).

13.              On the other hand, learned counsel for DHs submitted that as per the order of this Commission and upto Hon’ble National Commission, the JD is not entitled to charge any interest from the complainants/DHs on the instalments and extension fee till the date of fresh offer of possession after completion of basic facilities. Since, the JD is not entitled to charge any interest, therefore, the amount of ₹64,62,276/- and ₹40,000/- as compensation and ₹20,000/- as cost for condoning delay imposed upon the JD by the Hon’ble National Commission total of which comes to ₹65,22,276/- may kindly be adjusted in the principal amount.

14.              Learned counsel for DHs further submitted that it is no longer res integra that an executing court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardising the rights of the parties thereunder. It is only in the limited cases where the decree is by a Court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus executable. In this regard, learned counsel for DH placed reliance on case titled Brakewel Automotive Components (India) Pvt. Ltd. Versus P.R. Selvam Alagappan AIR 2017 SC 1566. Learned counsel for complainant further placed reliance on the cases titled Satyawati Versus Rajinder Singh and another 2013 (4) CCC 65 (SC) and Manas Goswami Versus Girdhari Lal Jaiswal and another 2013 (3) CCC 182 (Allahabad).

15.              Now, the question which arises for consideration in this execution is as under:-

i)                 Whether the amount deposited by the DHs is to be considered as principal amount or not?

16.              The plea taken by learned counsel for JD that for the purpose of interpreting a decree, when its terms are ambiguous, the court would certainly be entitled to look into the pleadings and judgments has no force, as there is no ambiguity in any orders passed by this Commission, Hon’ble State Commission and Hon’ble National Commission.

17.              The plea taken by learned counsel for JD that the amount deposited by the DHs i.e. ₹64,62,276/- is not principal in whole whereas it includes interest too. However, this plea taken by the JD cannot be considered. It is settled principal of law that this Commission being an executing Court cannot go behind the decree.

18.              It is an admitted fact that an amount of ₹64,62,276/- had already been deposited by the DHs with the JD. It is also admitted fact that Hon’ble National Commission has awarded compensation to the tune of ₹40,000/- and ₹20,000/- was awarded being cost for condoning the delay in filing the appeal, which the JD has not paid to the DHs till date. Thus, the total amount which is with the JD becomes ₹65,22,276/-.

19.              As per order dated 01.05.2017, passed by this Commission, OP/JD was directed to provide basic facilities at the spot, as per condition of the auction and then issue fresh letter of offer of possession within 30 days after completion of the development work of basic facilities. The OP/JD is not entitled to charge any interest from the complainant on the instalments and extension fee till the date of fresh offer of possession after completion of basic facilities. Hon’ble State Consumer Disputes Redressal Commission, Haryana, at Panchkula, vide order dated 26.11.2018, modified the order passed by this Commission and OP/JD was directed to complete the development work within a period of three months from the date of passing of this order and thereafter, the fresh letter of possession would be offered to the complainants/DHs and then only it (HUDA) would be entitled to charge the interest and whatever the interest alongwith penal interest and extension fee had already been charged by the OP/JD, is directed to refund within the period of three months alongwith interest @ 12% per annum from the date of deposit in different phases till realization or at the most this amount can be adjusted in case any other amount is payable by the complainants/DHs to the OP/JD. The orders passed by this Commission, Hon’ble State Commission and Hon’ble National Commission, had attained finality as the SLP filed by the OP/JD was dismissed by the Hon’ble Supreme Court of India. Since, the OP/JD is not entitled to charge any interest from the DHs till the completion of development work and issuance of fresh letter of possession, then the question that the amount of ₹64,62,276/- includes interest does not arise at all. Hence, an amount of ₹64,62,276/- and ₹60,000/- i.e. ₹65,22,276/- is considered as principal amount. It was also ordered by the Hon’ble State Commission that at the most the amount can be adjusted in case any other amount is payable by the complainants/DHs to the OP/JD. The DHs are willing to adjust the said amount in the total amount i.e. ₹1.40 crore as an amount of ₹74,77,724/- is still due towards the DHs after adjusting the aforesaid amount.

20.              The case laws relied upon by learned counsel for JD/OP are not applicable to the facts of the present case, whereas the case laws relied upon by learned counsel for DHs/complainants are applicable to the facts of the present case.

21.              Keeping in view the abovesaid discussion, the present execution application is disposed accordingly. However, if the JD/OP failed to comply the order within the time framed, then the DHs are at liberty to file fresh execution. File be consigned to record, after due compliance.     

Announced:

28.10.2020

                                                                             President

                                                             District Consumer Disputes                      

 Redressal Commission, Karnal.

 

 

(Vineet Kaushik)       (Dr. Rekha Chaudhary)         

      Member                              Member    

 

           

 

Bindu Bansal and another Versus HSVP

 

 Present:    Shri Vineet Kapoor, counsel for DHs.

                   Shri Amit Munjal, counsel for JD.

 

                   Today the case was fixed for remaining arguments, if any and order. Arguments heard.

                   Learned counsel for the DHs suffered his separate statement to the effect that out of total principal amount of the plot in question i.e. ₹1.40 crore, an amount of ₹64,62,276/- had already been deposited by the decree holders to the JDs in shape of installments of the plot in question towards principal amount and an amount of ₹60,000/- is to be paid by the JD to the DHs in lieu of penalties awarded by Hon’ble State Commission and Hon’ble National Commission. Thus, total amount becomes as ₹65,22,276/-. The decree holders pray that total amount i.e. ₹65,22,276/- may kindly be adjusted in the principal amount of the plot in question. The DHs undertakes that the remaining outstanding amount i.e. ₹74,77,724/- which is due towards the DHs, the same will be deposited by them, after completion of development work and after issuance of fresh offer of possession letter as per the statements suffered by XEN, and Deputy Superintendent, HSVP, Karnal. Decree holders have no objection, if the present execution application is disposed of on the aforesaid terms and conditions.

                   Order announced.

                   Vide separate order of even date, present execution application stands disposed of. File be consigned to record, after due compliance.

 

Dated: 28.10.2020

President

                                                             District Consumer Disputes                      

 Redressal Commission, Karnal.

                                                         

 

 

(Vineet Kaushik)       (Dr. Rekha Chaudhary)         

      Member                              Member