BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
F.A.No. 40 OF 2018 AGAINST E.A.NO.33 OF 2016 IN C.C.NO.535 OF 2015 DISTRICT CONSUMER FORUM-I HYDERABAD
Between
- M/s Sri Krishna Builders
Rep. by Madhav Krishnacharya Varakhedkar
S/o late Sri Krishnacharya Varakhedkar
Aged about 50 years, Occ: Business
H.No.4-2-47, Choudari Bagh, Sultan Bazaar
Hyderabad
- M/s Sri Krishna Builders
S/o late Sri Krishnacharya Varakhedkar
Rep. by Sitaram K Varakhedkar
Aged about 51 years, Occ: Buisness
R/o H.No.3-10-103/1, Gokhle Nagar
Ramanthapur, Hyderabad-500013
Appellants/ Opposite parties No.1 & 2
A N D
Smt Chaya Omprakash Chavan
W/o Om Prakash Deorao Chavan
Aged about 70 years, Occ: Housewife
Flat No.508, R/o H.No.1-365/A, Block-B
Jawahar Nagar, Bakaram,
Hyderabad-20
Respondent/complainant
Counsel for the Appellants Sri Myakala Srinivas Rao
Counsel for the Respondent Sri S.Ganesh Rao
QUORUM :
HON’BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT
&
SRI PATIL VITHAL RAO, MEMBER
THURSDAY THE TWENTY SIXTH DAY OF APRIL
TWO THOUSAND EIGHTEEN
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
This appeal has been filed by the appellants / opposite parties/Judgment Debtors under Section 27A of the Consumer Protection Act, 1986 against the order dated 23.01.2018, passed by the District Consumer Disputes Redressal Forum-I Hyderabad in E.A.No.33 of 2016. By the impugned order, the District Forum has convicted the appellant/opposite party under Section 27 (1) of the Consumer Protection Act, 1986 and sentenced to undergo simple imprisonment for six months and to pay fine of Rs.5000/-.
2. The respondent/complainant/DHR filed E.A.No.33 of 2016 against the appellants/opposite parties/JDR and the District Forum recorded sworn statement of the complainant u/s 200 Cr.PC by taking cognizance u/s 190 Cr.PC for the offence u/s 27 of CP Act and on issuance of notices, the appellants/opposite parties/JDrs made their appearance through an Advocate. During the pendency of it for non-appearance of appellants/opposite parties/JDrs warrants were issued
3. This appeal has been filed by the appellants / OPs/Judgment Debtor under Section 27A of the Consumer Protection Act, 1986 against the order dated 23.01.2018, passed by the District Consumer Disputes Redressal Forum-I, Hyderabad in Execution Application No.33/2016. By the impugned order, learned District Forum has convicted the appellants (Judgment Debtors) under Section 27 (1) of the Consumer Protection Act, 1986 and sentenced to undergo simple imprisonment for 6 months and to pay fine of Rs.5,000/-as has already been mentioned hereinabove.
4. The respondent/complainant/DHR filed complaint against the appellants/opposite parties/JDRs before the District Forum, which was registered as Complaint Case No.535/2015. Vide order dated 15.06.2016, the District Forum has allowed the complaint and directed the appellants/opposite parties to refund an amount of Rs.11,50,000/- with simple interest @ 12% p.a. from the respective dates of payment of installments till realization together with costs of Rs.10,000/-.
5. The respondent/complainant/DHR filed Execution Case No.33/2016 against the appellants/opposite parties/JDrs and the appellants/opposite parties/JDRs appeared before the District Forum through an Advocate. Thereafter the District Forum for non-appearance of the appellants/opposite parties/JDRs warrants were issued. Thereafter the appellants/opposite parties/JDrs filed petition for recall warrants with a written undertaking to comply the orders within one month. Considering the said undertaking the warrants were recalled on 17.08.2017 giving one month time to appellants/opposite parties/JDrs to comply the orders and posted to 18.09.2017. On 18.07.2019 appellants/opposite parties/JDrs paid a sum of Rs.3 lakhs to the respondent/complainant/DHR leaving the balance payable at Rs.22,60,660/-. For further payment of balance amount posted to 13.10.2017 in default the penal orders to follow. On 13.10.2017 the appellants/opposite parties/JDrs filed another written undertaking memo to pay the due amount within one month and considering the same it was posted to13.11.2017 to pay the entire amount due. On 13.11.2017 the appellants/opposite parties/JDrs filed memo reporting that they have filed an appeal before this Commission with a condone delay petition and as such the matter was again posted to 30.11.2017 for furnishing the appeal number as otherwise necessary orders to follow. On 30.11.2017 the appellants/opposite parties/JDrs failed to furnish the appeal number and the matter was adjourned to 18.12.2017 on which date the appellants/opposite parties/JDrs paid Rs.1,00,000/-. On 18.12.2017 the appellants/opposite parties/JDrs were not prepared to pay the balance amount, and finally District Forum proceeded under Section 27 of the Consumer Protection Act, 1986 by sentencing for simple imprisonment for six years and fine of Rs.5,000/-. Hence, the appellants/opposite parties/JDRs filed the instant appeal before this Commission.
6. The appellants/opposite parties/JDRs filed an application before this Commission for suspending the sentence awarded against them. Vide order dated 04.01.2017, the application of the appellants (OPs) (Judgment Debtor) was allowed and he was released on bail and jail sentence has been suspended till disposal of the instant appeal.
7. The learned counsel appearing for the appellants/opposite parties/JDRs has argued that the District Forum ought not to have taken up the matter into consideration since the same is Civil in nature and more particularly recovery of money in nature. The complainant failed to pay the installments as per the schedule of payment mentioned in two agreements of sale and never complied the terms and conditions of the payment structures. The appellants/opposite parties/JDRs never intended to dis-obey the order passed by the District Forum, but learned District Forum has erroneously sentenced the appellants/opposite parties/JDRs under Section 27 (1) of the Consumer Protection Act, 1986 and sentenced to undergo simple imprisonment for 6 months and to pay fine of Rs.5,000/-. The appeal may be allowed and the impugned order passed by the District Forum be set aside.
8. The learned counsel appearing for the respondent/complainant/DHR has argued that the complainant has entered into an agreement of sale dated 30.08.2006 and 12.07.2007 for sale of Flat No.2 and 4 on the 1st floor at Vashishta Ashramam, Ramkoti, Hyderabad and she has paid an amount of Rs.11.50 lakhs. After receipt of the payment as the appellants/opposite parties/JDRs failed to complete the construction of the Flats. Finally the opposite parties agreed to allot Flat No.14 on first floor along with car parking as against the two flats but even after such assurance, the appellants/opposite parties/JDRs allotted the said flat to third party, then the respondent/complainant/DHR filed consumer complaint before the District Forum and vide order dated 15.06.2016, the learned District Forum has allowed the complaint and directed the appellants/opposite parties/JDrs to pay Rs.11,50,000/- with interest @ 12% from the dates of respective payments together with costs of Rs.10,000/-. The appellants/opposite parties/JDRs did not comply the order passed by the District Forum and were escaping from their liability. Learned District Forum has rightly proceeded against the appellants/opposite parties/JDRs under Section 27 (1) of the Consumer Protection Act, 1986. The District Forum has followed the procedure in correct view and has rightly convicted the appellants/opposite parties/JDRs under Section 27 (1) of the Consumer Protection Act, 1986 and sentenced to undergo simple imprisonment for 6 months and to pay fine of Rs.5,000/-. The impugned order passed by the District Forum, is just and proper and does not call for any interference by this Commission.
9. We have heard learned counsel appearing for both the parties and have also perused the record of Execution Case No.33/2016.
10. Looking to the record of Execution Case of the District Forum, it appears that the appellants/opposite parties/JDRs were granted many opportunities by the District Forum for compliance of the order of the District Forum, but the appellants/opposite parties/JDRs did not comply the order of the District Forum. Learned District Forum after following the proper procedure, sentenced the appellants/opposite parties/JDRs under Section 27 (1) of the Consumer Protection Act, 1986. It is pertinent to note that the appellants/opposite parties/JDRs were called absent before the learned District Forum in main complaint even after issuance of the notices. If the opposite parties appeared before the learned District Forum in the main complaint they might have had a chance to project their version before the Forum. Even after passing of the final orders the appellants/opposite parties/JDRs have not preferred any appeal before this Commission and only when the warrants were issued then the appellants/opposite parties/JDRs appeared before the learned District Forum and took several adjournments on one pretext or the other. When they have failed to comply the orders of the District Forum even after the several adjournments, the District Forum has rightly passed the orders in E.A.No.33 of 2016.
11. The National Commission in the case of R. Subramanian V/s. Stichcraft India Ltd. III (2006) CPJ 373 (NC), held that the order which has attained finality could not be examined in execution proceedings filed by the decree holders. The orders of the Commission were challenged before the Hon’ble National Commission and Hon’ble Supreme Court and both National commission and Supreme Court confirmed the orders of the State Commission and hence it attained finality. At this stage the contentions raised by the Appellants/opposite parties touching the merits of the Complaint Case cannot be looked into. The matter in issue already decided cannot be reopened.
12. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of record, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
13. For the reasons recorded above, the appeal FA No.40 of 2018 and FAIA No.176 of 2018 are being devoid of merit, must fail, and the same are liable to be dismissed. The order of the District Forum is to be upheld.
In the result, the appeal F.A.No.40 of 2018 as well as FAIA 176 of 2018 are dismissed and the order of the District Forum-III, Hyderabad in E.A.No.33 of 2016 in C.C.No.535 of 2015 dated 23.01.2018 is confirmed. There shall be no order as to costs.
PRESIDENT MEMBER
26.04.2018
