District Consumer Disputes Redressal Forum-II, U.T., Chandigarh

EA/20/2014

IN

CONSUMER COMPLAINT NO.  409 OF  2010

Devinder Singh Marwah & Anr. Vs. Parsvnath Developers Ltd.                                      And Ors.

BEFORE:

                   HON’BLE MR. RAJAN DEWAN PRESIDENT

                   MR. JASWINDER SINGH SIDHU        MEMBER

ARGUED BY: Sh. Navin Kapur, counsel for the complainants.

                       None for OPs

Dated : 27/01/2015

ORDER

As Per Jaswinder Singh Sidhu Member:

                     This order will dispose of the execution application filed by the complainants on the ground that the OPs failed to comply with the orders of this Forum as modified by the Hon’ble State Commission as well as by the Hon’ble National Commission in their respective orders dated 20.09.2011 and 05.03.2013 respectively. The complainants have admitted to have received an amount of Rs.13,28,750/- on 09.07.2009 and thereafter an amount of Rs.1,46,772/- on 08.05.2014 in this Forum itself and at that point of time, the complainants had reserved their rights to claim the remaining amount after calculating the interest component on the outstanding amount.

2.                The OPs 1 & 3 / Judgment Debtors after making the last payment on 08.05.2014 have filed reply cum compliance affidavit on behalf of OP-1, claiming that nothing is outstanding qua them and no more amount is required to be paid to the complainants in pursuance of the orders of this Forum as modified by the Hon’ble State Commission and the Hon’ble National Commission. The OPs 1&3 have also placed on record an email, which is its internal communication to its counsel disclosing that TDS amount of Rs.62,903/- has been deducted and the calculations as submitted along with their reply as Annexure- C have been calculated in that manner. OP No.2 too has place on record a TDS Certificate, which is in the shape of Form No.16-A along with its calculations, which discloses that amount of Rs.20,551/- has been deducted from the amount which was due to be released to the complainants. OP-2 has also claimed during the course of arguments that it was prompt in releasing that amount after the TDS deduction within 30 days from the receipt of the last orders and that there is no willful disobedience of the orders of this Forum on its part.

3.                We have minutely perused the documents placed on record by the parties. However, it is necessary to quote here that , in a similar case, titled as G.D.A. Versus Dr. N.K. Gupta (Revision Petition No.2244/1999), Decided on 13.09.2002 of the Hon’ble National Commission, New Delhi, the Honble National Commission has opined that, OPs were not supposed to deduct any TDS on the amount of interest calculated in terms of order of this Forum as modified by the Hon’ble State Commission as well as by the Hon’ble National Commission, for the reason that the  Hon’ble National Commission while passing orders in the aforementioned Revision Petition 2244 of 1999 has settled the law that as the Fora  below had not ordered any TDS deduction and in the absence of any such specific orders to that effect, no such deductions were to be made. Furthermore, the Hon’ble National Commission was also pleased to declare that the award of “interest” by way of compensation can not be termed to be an “interest” as defined in Section 2 (28-A) of the Income Tax Act and therefore, the Section 194-A of the Income Tax Act cannot be made applicable on such amounts, which are to be paid in pursuance of the orders of the Fora that had awarded the interest quotient as compensation while allowing the complaint. In the aforementioned case too the OPs had deducted the TDS and placed on record the certificate of such deductions which the Hon’ble National Commission ignored while holding the OPs liable to pay the entire award as ordered by the Foras below.      

4.                In view of the aforementioned judgment that the TDS deduction made by the OPs 1,2 and 3 cannot be held to be justified and the demand of the complainants of the remaining amount is just, fair and legal. As the two different amounts namely Rs.62903/- and Rs.20551/- remains to be paid by the respective OPs. As the OPs have preferred to calculate the outstanding amounts against them by counting the TDS quotient, therefore, the calculations placed on record by each of them deserves to be ignored and calculated a fresh to reach a definite amount due towards them separately, as of today.

5.                 The complainants have categorically mentioned that he had made a total payment of Rs.15,85,750/- in three installments dated 21.09.2007, 27.10.2007 and 08.12.2007 before he had moved the Consumer complaint No.409/2010 which was finally decided on 02.12.2010 and as the OPs had paid an amount of Rs.13,28,750/- on 09.07.2009 before the filing of the complaint No.409/2010. This Forum had directed to the OPs to refund the remaining amount of Rs.2,57,000/-and an interest on the entire deposited amount till the respective dates of their refund along with compensation of Rs.50,000/- as well as litigation expenses to the tune of Rs.7,000/- were awarded to be paid within 45 days of the receipt of the order failing which the OPs were saddled with penal interest @18% p.a. on the awarded amount, besides Rs.7000/- as costs, which did not attract any interest. As the OPs preferred appeals before the Hon’ble State Commission and the Hon’ble National Commission, the order of the District Forum were modified and the outstanding amount against the OPs is to be calculated in terms of the orders so modified by the Hon’ble State Commission as well as by the Hon’ble National Commission, without taking into consideration, the deduction made by the OPs towards TDS. 

6.                It is important to quote here the three respective operative parts of the orders of the District Forum dated 02.12.2010, Hon’ble State Commission, Chandigarh dated 20.09.2011 and the Hon’ble National Commission dated 05.03.2013:-

                    Para No.15 of Order dated: 02.12.2010 of District Forum-II, Chandigarh reads as under:-

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

1. Refund the remaining amount of Rs.2,57,000/- to the complainants.
2. 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.
3. Pay Rs.50,000/- to the complainants as compensation for causing mental agony and harassment.
4. Pay Rs.7,000/- to the complainants as costs of litigation.

7.                The Hon’ble State Commission, Chandigarh while passing orders in appeal No.02/2011 on 20.09.2011 had modified the aforementioned award of the District Forum-II, Chandigarh in following terms as mentioned in para No.22 of its order dated 20.09.2011:-

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

1. 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.
2. 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.

8.                The Hon’ble National Commission in its order passed in F.A. 58,73/2011 on 05.03.2013 was pleased to hold – Page No.106 - “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 Hon’ble National Commission while deciding the quantum of compensation payable to the complainant had held that the same shall be payable in terms of the Clause 9 (C) of the Tripartite agreement subject to the final outcome of Arbitration proceedings referred to the sole Arbitrator appointed by the Hon’ble Supreme Court (Hon’ble Mr. Justice R.V. Raveendran, Retd. Judge of the Hon’ble Supreme Court of India).

                   Finally, the Hon’ble National Commission in the last paragraph of the judgment had declared that 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.

9.                In view of the observations made in para No.4 above as well as the contents of the order of the District Forum, Hon’ble State Commission, Chandigarh as well as the Hon’ble National Commission clearly indicate that there were no orders to the OPs to deduct any amount towards the TDS, therefore, as this amount which was part and parcel of the refund of the deposited amount alongwith interest @9% p.a. still remained unpaid till date, therefore, in terms of the last paragraph of the orders of the Hon’ble National Commission, the interest part deserves to be calculated @12% p.a. instated of 9% p.a. and, therefore, the entire calculations deserve to be made from the scratch. And the same have been calculated as below:-

                   It is admitted that the complainants had paid Rs.2,57,000/- on 21.09.2007, an another installment of Rs.2,57,000/- was again paid on 27.10.2007 and Rs.10,71,750/- was paid on 08.12.2007, thereby a total amount of Rs.15,85,750/- was paid to the OPs of which Rs.13,28,750/- was paid back to the complainants on 09.07.2009. We feel that as the complainants had become entitled to the entire amount of Rs.15,85,750/- alongwith interest @12% p.a. from the respective dates of deposits till 09.07.2009, therefore, the amount of Rs.13,28,750/- paid to the complainants on 09.07.2009 included the principle amount on behalf of both the parties as well as the interest part amounting to Rs.3,14,142/- calculated @12% p.a. from respective dates of deposits upto 09.07.2009 and an amount of Rs.5,71,142/- remained to be paid by the opposite parties in the ratio of 70 : 30 i.e. by PNLD and CHB respectively.  

10.               As the OPs thereafter preferred to make respective payments individually, it would be just and fair to calculate their respective outstanding with regard to the remaining amount of Rs.5,71,142/- alongwith interest @12% p.a. in 70:30 ratio.

11.               The OPs 1 & 3 i.e. PNLD made a payment of Rs.1,02,182/- on 28.02.2012, therefore, the 70% of its share of amount i.e. Rs.3,99,799/- had attracted an interest of amount of Rs.1,23,936/-, therefore, as on 28.02.2012 an amount of Rs.5,23,735/- was outstanding and after deducting Rs.1,02,182/-, an amount of Rs.4,21,553/- remained outstanding. The OPs 1 & 3 thereafter made a another payment of Rs.1,46,772/- on 08.05.2014 and by this date the outstanding against OPs 1 & 3 totaled to Rs.5,31,156/- which included interest on the outstanding of Rs.4,21,553/- upto 08.05.2013 after deductions an amount of Rs.3,84,384/- remained outstanding and the interest @12% p.a. continues to be added to it till the same is paid completely.

12.               Similarly while calculating the 30% share of OP No.2 i.e. CHB, an amount of Rs.1,71,342/- was outstanding against it on 09.07.2009. The complainants have declared that they have received an amount of Rs.82,203/- in the month of June, 2013 from OP No.2, therefore, the amount of Rs.1,71,342/- which was outstanding against it had attracted an amount of Rs.80,530/- as interest on 1^st of June, 2013, therefore, after deducting Rs.82203/- from the total amount of Rs.2,51,872/-, an amount of Rs.1,69,669/- remains to be paid by OP No.2 i.e. CHB and the same still attracts interest @12% p.a. since 1^st June, 2013.

13.               Therefore, as the respective amounts of Rs.3,84,384/-and Rs.1,69,669/- along with interest @ 12% since the last respective dates of payments by the OPs are outstanding against the OPs 1 & 3 i.e. PNLD and  OP- 2 i.e. CHB respectively and they have not come forward to declare that they are willing to pay the same rather they had even failed to appear on the last four consecutive hearings since 31.10.2014, we are left with no other alternative, but to believe that the OPs are in no mood to satisfy the orders passed against them by the Hon’ble National Commission and their such an attitude amounts to willful disobedience on their part for which they deserves to be adequately punished in terms of the Section 27 of the Consumer Protection Act, 1986.  

14.               The complainants are left with the remedies available to them for the recovery of the amount outstanding against the OPs and also the compliance of the award of the Arbitration proceedings pending against the OPs, by initiating legal options available with them.

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.

16.               Certified copy of this order be communicated to the parties free of cost. After compliance file be consigned.

27^th Jan., 2015

                        Sd/-

[JASWINDER SINGH SIDHU]

MEMBER