Chandigarh

StateCommission

RP/34/2019

R.K. Sharma - Complainant(s)

Versus

Sahara India Pariwar - Opp.Party(s)

In Person

04 May 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Revision Petition No.	:	34 of 2019
Date of Institution	:	20.11.2019
Date of Decision	:	04.05.2022

 

Shri R. K. Sharma R/o House No.814, 2^nd Floor, TDI City, Sector 111, Mohali, PO Landran-140307, Chandigarh.

…..Revision Petitioner

Versus

1. Sahara India Pariwar Housing Unit, Sahara India Commercial Corporation Limited, Sahara India Tower-7, Kapoorthala Complex, Lucknow through its Managing Director.
2. Regional Manager, Sahara India Pariwar, SCO No.1110-1111, Sector 22-, Chandigarh through its Regional Manager.
3. The Branch Manager, Sahara India Pariwar, SCO No.1110-1111, Sector 22, Chandigarh.

All are represented by the Branch Manager, Sahara India Pariwar, SCO No.1110-1111, Sector 22, Chandigarh.

          …..Respondents

BEFORE:             JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MRS.PADMA PANDEY, MEMBER.

                             MR.RAJESH K. ARYA, MEMBER.

 

Present:-              Sh.Devinder Kumar, Advocate for the revision petitioner.

          Sh.Ammish Goel and Sh.D.K. Singal, Advocate for the respondents.

 

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

M.A. No.1067 of 2019:-

                   First of all we will consider the application for condonation of delay of 311 days in filing the revision petition.

2.           The impugned order dated 15.10.2018 (Annexure-1) was passed in miscellaneous application No.57 of 2016 by the District Forum-1, U.T., Chandigarh. The complainant assailed said order dated 15.10.2018 before the Hon’ble National Commission by filing revision petition no.2095 of 2019, which was dismissed vide order dated 25.09.2019 being not maintainable with the following observations:-

“…. So far as the order dated 15.10.2018 passed by the Consumer Disputes Redressal Forum-I, UT Chandigarh is concerned, we may mention here that the Revision Petition against the order passed by the District Consumer Forum directly before the National Consumer Disputes Redressal Commission is not maintainable. It will be open for the Petitioner to seek appropriate remedy in accordance with law.

In view of the foregoing discussions, we dismiss the present Revision Petition as not maintainable…..”

 

3.           Free certified copy of the order dated 25.09.2019 was prepared by the Hon’ble National Commission and vide covering letter dated 10.10.2019, which was thereafter supplied to this Commission.
4.           It has been argued before us that the applicant is appearing in person; he is not well conversant with the technicalities of law, therefore, instead of filing revision petition before this Commission, he filed revision petition before the National Commission in good faith.
5.           The application for condonation of delay aforesaid was contested by the respondents, by way of filing reply stating therein that the applicant is not entitled to get the delay condoned.
6.           We have heard the contesting parties on this application and have also gone through the material available on record.
7.           It is well-settled principle of law that a party prosecuting his case in good faith in the court having no jurisdiction is entitled to exclusion of that period for determining the question of limitation. It was so  said by the Hon’ble Supreme Court of India in Deena (Dead) through LRs. Vs. Bharat Singh (Dead) through LRs and Ors. (2002) 6 SCC 336 as under:

"…14. The main factor which would influence the Court in extending the benefit of section 14 to a litigant is whether the prior proceeding had been prosecuted with due diligence and good faith. The party prosecuting the suit in good faith in the court having no jurisdiction is entitled to exclusion of that period. The expression 'good faith' as used in section 14 means "exercise of due care and attention'. In the context of section 14 expression 'good faith' qualifies prosecuting the proceeding in the Court which ultimately is found to have no jurisdiction…..”

 

8.           In the present case, as stated above, revision petition bearing no.2095 of 2019 was filed by the revision petitioner -R.K. Sharma before the Hon’ble National Commission, which was dismissed vide order dated 25.09.2019, being not maintainable, in the manner stated above. Free certified copy of the said order dated 25.09.2019 was prepared by the office of the Hon’ble  National Commission on 10.10.2019 and the  same was sent to this Commission, through post dated 10.10.2019 itself.  
9.           The present revision petition has been filed on 20.11.2019. Thus, keeping in view the facts and circumstances of this case, we are of the considered view that the revision petitioner, who appeared in person and is not a lawyer, had been pursuing the revision petition no.2095 of 2019 before the Hon’ble National Commission in good faith. It has been specifically pleaded and argued that the certified copy of order dated 25.09.2019 was received by him on 05.11.2019. Thus, the time period spent between passing of the impugned order dated 15.10.2018 by the District Forum in MA No.57 of 2016 and decision dated 25.09.2019 of the Hon’ble National Commission and upto preparation of the copy of the said order i.e. 10.10.2019 and its receipt thereof  by the applicant on 05.11.2019, is required to be condoned. In this view of the matter, the delay of 311 days in filing this revision petition is condoned. The application stands allowed and disposed of accordingly. Thus, this revision petition be treated to be filed within the period of limitation.

 

Revision petition no. 34 of 2019:-

10.           The facts necessary for disposal of this case are that the complainant-Sh.R.K. Sharma had filed consumer complaint bearing no.539 of 2006 before the District Forum which was allowed vide order dated 19.09.2007, by observing as under:-.

 

“…[9] …….Considering all the facts of this case, particularly that the complainant lost an opportunity of having a flat of his own and in view of the escalation of prices in the property/flat/house and the suffering undergone by him all these years due to deficient service of OPs, we allow the complaint and direct the OPs to refund Rs.1,00,000/- (One lakh) as deposited by the complainant and also to pay him compensation to the tune of Rs.5,00,000/- (Five lakh) alongwith Rs.2100/- as cost of litigation. The order shall be complied with within 30 days from the date of its receipt, failing which the decreetal amount shall carry a penal interest @9% per annum from the date of order till its realization….”

 

11.           The said order dated 19.09.2007 was challenged before this Commission by filing appeal no.670 of 2007, which was partly accepted vide order dated 09.06.2014, Annexure R-7, with the modification as under:-

 

“…..In view of above discussion, the appeal is partly accepted, with no order as to costs. The impugned order, passed by the District Forum, is modified, to the extent, indicated hereunder;-

 

1. The appellants/Opposite Parties are directed to refund an amount of Rs.1,00,000/- (Rupees One Lac Only) to the respondent/complainant alongwith interest @9% per annum from the date of deposit, with a period of 30 days from the date of receipt of a certified copy of the order;
2. The appellants/Opposite Parties are directed to pay an amount of Rs.70,000/- to the respondent/complainant, claimed by him, as compensation for deficiency, in rendering service and causing physical harassment and mental agony to him, instead of Rs.5 Lacs awarded by the District Forum, within a period of 30 days from the date of receipt of a certified copy of the order;
3. The appellants/Opposite Parties, are directed to pay an amount of Rs.2,100/- to the respondent/complainant, as cost of litigation, as awarded by the District Forum, within a period of 30 days from the date of receipt of a certified copy of the order;
4. This order shall be complied with, by the appellants/Opposite Parties, within the stipulated period, failing which, they shall be liable to pay the amounts, mentioned in Clauses (i) and (ii), above, alongwith interest @12% p.a. from the date of default, till the date of actual payment to the respondent/complainant, besides paying the litigation costs, as aforesaid.
5. All other directions given, and reliefs granted by the District Forum, in the impugned order, subject to the modification, aforesaid, which are contrary to, and, in variance of this order, shall stand set aside…..”

 

12.           Against the said order, revision petition no.3562 of 2014, Annexure R-8, was filed before the Hon’ble National Commission, which was dismissed in limine vide order dated 30.10.2015, by holding as under:-
    1. It is clear from the record that the petitioner gave two applications for refund of the amount along with interest at different occasions and he also did not give preference for other cities.  Under these circumstances, both the fora below were justified in ordering refund of the deposited amount with interest.  The State Commission has also awarded the compensation of Rs.70,000/-  (Rupees Seventy Thousand) in favour of the petitioner along with interest and litigation cost of Rs.2100/- (Two Thousand One Hundred). The order of the State Commission does not seem to suffer from any illegality, infirmity or jurisdictional error. Thus, we find no force in the revision petition and is dismissed in limine……”

 

13.           Thereafter, miscellaneous application no.57 of 2016 was filed by the opposite parties-Sahara India Pariwar and others, before the District Forum, wherein impugned order dated 15.10.2018 was passed, as under:-

“……4. Now the applicant/OP has prayed, as per the latest order passed by Hon’ble State Commission, U.T. Chandigarh, the liability due under the order is Rs.1,72,100/- while Sh.R.K.Sharma complainant had received Rs.6,12,100/-. Per the order of Hon’ble State Commission, U.T. Chandigarh, the total sum due including interest comes out to Rs.2,08,100/-. Now this amount has to be subtracted from the total amount paid Rs.6,12,100/-. Hence, sum of Rs.4,04,000/- alongwith interest @ 9% p.a. since September 2008 till date of actual payment received in excess which is now to be recovered from complainant Sh.R.K.Sharma.

5. Application opposed by way of filing reply and the main emphasis is that there is no order of refund passed by Hon’ble State or National Commissions. May be so, but it is a fact that order was modified and applicants/OPs had complied with the initial order of first instance passed by this Forum, therefore, this application is to be treated for restitution and help can be derived from Section 144 of CPC, 1908. Thus, due to variation of the order of this Forum, this amount is to be recovered from Sh.R.K.Sharma complainant. Hence, let a certificate of recovery in view of Section 25(3) of the Consumer Protection Act, 1986, be addressed to the District Collector, Mohali, Punjab, authorizing him to recover this amount from the movable or immovable property of Sh.R.K.Sharma complainant as arrears of land revenue and amount so recovered be transmitted by D.D. in the official designation of this Forum for 19.11.2018.…….”

14.           We have  heard the contesting parties in this revision petition; and have gone through the material available on record.
15.           Counsel for the revision petitioner-Sh.R.K. Sharma submitted that no order with regard to refund of money has been passed by this Commission in its order dated 09.06.2014 in FA No. 670 of 2007 nor there is any order of grant of interest, in favour of the respondents-Sahara India Pariwar Housing Unit and others. Therefore, impugned order is illegal and perverse in the eyes of law.
16.           On the other hand, Counsel for the respondents submitted that while exercising the powers of Section 144 of Code of Civil Procedure (CPC), the District Forum has rightly ordered to refund the amount of Rs.4,04,000/- alongwith interest @9% p.a. to the respondents.
17.           We have thoughtfully considered the rival contentions. The moot question which falls for consideration is, as to whether the executing court by exercising the powers under Section 144 CPC can grant interest on the principal amount or not. For coming to any conclusion, it is necessary to reproduce Section 144 CPC as under:-

“……Section 144 CPC:-

Where and in so far as a decree 1[or an Order] is 2[varied or reversed in any appeal, revision or other proceedings or is set aside or modified in any suit instituted for the purpose the Court which passed the decree or Order] shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree 1[or Order] or 3[such part thereof as has been varied, reversed, set aside or modified], and, for this purpose, the Court may make any Orders, including Orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly 4[consequential on such variation, reversal, setting aside or modification of the decree or Order.]

5[Explanation.-For the purposes of sub-section (1) the expression "Court which passed the decree or Order" shall be deemed to include,-

(a) where the decree or Order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance;

(b) where the decree or Order has been set aside by a separate suit, the Court of first instance which passed such decree or Order;

(c) where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute, it, the Court which, if the suit wherein the decree or Order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit.]

(2) No suit shall be instituted for the pr-pose of obtaining any restitution or other relief which could be obtained by application under sub-section (1).…….”

 

Thus, bare perusal of the said provision reveals that while exercising the powers under Section 144 CPC, the executing court can grant interest upon the principle amount.

18.           Under similar circumstances, the Hon’ble Supreme Court of India in AIR  2003 Supreme Court 4482, South Eastern Coalfields Ltd. Vs. State of M.P. and others, in para nos.26 and 27 has held as under:-

“…..26. That no one shall suffer by an act of the court is not a rule confined to an erroneous act of the court; the 'act of the court' embraces within its sweep all such acts as to which the court may form an opinion in any legal proceedings that the court would not have so acted had it been correctly apprised of the facts and the law. The factor attracting applicability of restitution is not the act of the Court being wrongful or a mistake or error committed by the Court; the test is whether on account of an act of the party persuading the Court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage which it would not have otherwise corned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the Court and the set of such party. The quantum of restitution, depending on the facts and circumstances of a given case, may take into consideration not only what the party excluded would have made but also what the party under obligation has or might reasonably have made. There is nothing wrong in the parties demanding being placed in the same position in which they would have been had the court not intervened by its interim order when at the end of the proceedings the court pronounces its judicial verdict which does not match with and countenance its own interim verdict. Whenever called upon to adjudicate, the court would act in conjunction with what is the real and substantial justice. The injury, if any, caused by the act of the court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences. Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the Courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced, we are, therefore, or the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation.

27. Once the doctrine of restitution is attracted, the interest is often a normal relief given in restitution. Such interest is not controlled by the provisions of the Interest Act of 1839 or 1978…”.

19.           Similar observations were also made by the Hon’ble Supreme  Court in Lucy Kochuvareed vs P. Mariappa Gounder and Ors. 1979, AIR 1979 SC 1214. In that case, a sum of Rs.30,000/- being the rent collected by the receiver from the defendant, was deposited in Court. This amount was withdrawn by the defendant following the dismissal of the plaintiff's suit for specific performance, by the High Court. The plaintiff succeeded in the Hon’ble Supreme Court. The defendant re-deposited the full amount. Trial Court awarded interest on the amount for the period the date of withdrawal of the amount till the date of redeposit. High Court disallowed the interest.

It was held that interest on the sum was claimed under S. 144 by way of restitution. There was nothing in the decree of the Supreme Court which expressly or by implication prohibited the payment of interest on the sum by way of restitution. It was further held that the interest was rightly allowed.

20.           In the present  case, vide order dated 09.06.2014 passed in FA No.670 of 2007, this Commission has modified the order dated 19.09.2007 passed by the District Forum, in the main consumer complaint, in the manner stated above. Before the said modification, the opposite parties-Sahara India Pariwar Housing Unit have already paid an amount of Rs.6,12,100/- to the complainant-Sh.R.K. Sharma. However, by making adjustment and calculating the actual amount, it has been observed that an amount of Rs.4,04,000/- has been paid in excess in September 2008, to the revision petitioner-Sh.R.K. Sharma. The said amount of Rs.4,04,000/- has been utilized by the revision petitioner and it was his duty to refund the same but he failed to do so.
21.           Under above circumstances, we are of the considered opinion that the order dated 15.10.2018 passed by the District Forum (now District Commission), did not suffer from any illegality or perversity, warranting the interference of this Commission and the same stands upheld. Resultantly, this revision petition stands dismissed with no order as to cost.
22.           Certified copies of this order be sent to the parties, free of charge.
23.           The concerned file be consigned to Record Room, after completion

Pronounced

04.05.2022

 

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

 (PADMA PANDEY)

          MEMBER

 

 

 

Sd/-

(RAJESH K. ARYA)

MEMBER

Rg.