IA No. 958 of 2024 (For early hearing)

1.         It has been requested by the applicant / petitioner that the matter may be heard today.  Allowed.

MA NO. 601 OF 2023 (For clarification of Order)

2.       Heard learned counsel appearing for the applicant / petitioner and also the non-applicant / respondent Suresh Kumar Bansal. 

3.       It appears from the perusal of the record that the complaint case was filed before the District Commission, the complaint was allowed and the following award was passed by the District Commission:-

          So, holding OP guilty of deficiency in service, we direct OP to refund the amount Rs.11,62,500/- after 10% deduction as per policy of company along with interest @ 9% p.a. from date of booking till date of payment.  We further award Rs. 50,000/-as compensation for harassment including litigation cost. 

4.       Feeling aggrieved by the Order passed by the District Commission the complainant filed an appeal before the State Commission. The appeal was allowed and the following award was passed by it:-

6.       OPs have failed to place on record any material in support of their contention that any policy of the company permitted for deduction of 10% olf the amount deposited by the complainant in any eventuality.  In these circumstances appeal is allowed and the orders dated 17.4.12 are modified to the extent that the OPs/respondents directed to pay to the complainant/appellant an amount of Rs.11,62,500/- along with interest @ 9% p.a. from the date of deposit till the date of realization (without any deductions). OPs shall also pay to the complainant/appellant a compensation to the tune of Rs.50,000/- for causing inconvenience and harassment to the complainant.  

5.       Applicants / petitioners thereafter filed a revision petition before this Commission which too eventually came to be dismissed vide Order dated 09.12.2022 and the following observations were made in the concluding part of the judgement which reads as follows:-

          12.   From the records it is apparent that the petitioner has challenged the impugned order on the very same grounds which were raised before the District Forum as well as the State Commission in appeal. The concurrent findings on facts of these two foras are based on evidences led by the parties and documents on record. The present revision petition is therefore an attempt by the petitioner to urge this Commission to re-assess, re-appreciate the evidence which cannot be done in revisional jurisdiction. Learned counsel for the petitioner has failed to show that the findings in the impugned order are perverse.       

13.   The foras below have pronounced orders which are detailed, based on evidence on record and have dealt with all the contentions of the petitioner. As noted above, no evidence has been brought on record in support of the legal contentions now being relied upon with regard to the deduction of 10% of the deposit as “earnest money”. Hence the concurrent findings based on evidence have to be accepted as such findings cannot be substituted in revisional jurisdiction. This petition is, therefore, liable to fail.

6.       It further transpires that now an execution application has been moved before the District Commission by the complainant and the proceedings of the same are still going on and have not been concluded.

7.       During the pendency of the afore-said execution proceedings the present miscellaneous application has been moved here on behalf of applicants / petitioners with the following prayer:

“a)        Revive Order dated 09.12.2023.

b)         Clarify that the order of the Ld. District Commission stands satisfied and no further amounts are payable to the Respondent by the Applicant.

c)         Direct the Respondent to refund the amounts that he has received in excess of the dues payable to him under the decree of this Hon’ble Commission.

d)         Direct that the Order dated 30.10.2023 passed by the Ld. District Commission in EA No. 65 of2016 be held in abeyance till the instant application is adjudicated by this Hon’ble Commission.

e)         Pass any other/further order (s) as deemed fit and proper in lights of the above facts and circumstances.”   

8.       Submission is that when the revision petition was moved before this Commission, the operation of the impugned Order was put in abeyance vide Order dated 03.01.2017 on the term and condition that the stay shall be subject to deposit of the entire decretal amount awarded by the District Commission.  Submission is that in compliance with the Order passed by this Commission on 03.01.2017 the entire decretal amount as directed by this Commission was deposited on 06.02.2017 and the afore-said amount along with interest has been released in favour of the complainant already. Submission is that, therefore, in this background nothing further remains outstanding and there is no justification for the complainant to move execution application.  Submission is that, therefore, this Commission should pass the Order and a clarification be made in this regard so that District Commission may not take any action against the petitioners / applicants towards satisfaction of the decree which already stands satisfied. 

9.       In rebuttal the complainant who has appeared in person submits that the award made by the District Commission is not the final award to be executed.  After the District Commission had passed its Order the complainant had filed an appeal against the same before the State Commission which had effectively modified the District Commission’s order.  Further to it the revision that was filed against the State Commission’s Order was also dismissed by the National Commission and thus it is the State Commission’s Order which has got to be executed now.  Emphasis was also drawn on the interim stay Order passed by this Commission during the pendency of the revision petition filed by the applicants / petitioners  which reads as follows:-

          Dated : 03 Jan 2017

          Further submission is that first of all the interim stay Order passed by this Commission was subject to the fulfilment of the conditions which it contained and which included that the entire decretal amount was to be deposited within a period of four weeks from then. Firstly, the said decretal amount claimed to have been deposited by the applicants / petitioners was not deposited within four weeks and was deposited subsequent to it. But more importantly as is apparent from the perusal of the Order dated 03.01.2017 that the amount which the petitioner was directed to deposit was the amount as was awarded by the District Commission on 09.05.2012.  Submission is that the terms and the nature of the State Commission’s Order are substantially different from the award that was made by the District Commission.  The State Commission had subsequently passed the Order that no deductions were to be made and apart from that it was specifically ordered that the State Commission’s Order was to be complied within a period of 45 days from the date of the passing of the Order failing which an interest of 24% p.a. shall be levied upon the opposite parties on the amount accruing after the expiry of the afore-said period of 45 days. Submission is that the District Commission’s Order stood merged with the State Commission’s Order and after the passing of the State Commission’s Order, the Order of the District Commission gets subsumed in it.  It has been further submitted that the State Commission’s Order stands confirmed by this Commission and the same has attained finality and is not under challenge anywhere.  Submission is that in such circumstances the execution proceedings had to be undertaken which are rightfully going on before the District Commission and it is the District Commission which has to ensure that the Order passed by the State Commission gets fully complied with and the outstanding amount which is due to be further paid must be made good and there is nothing wrong in the proceedings that are taking place in the execution forum. 

          It has also been submitted that the petitioners are simply trying to put a spanner in the execution proceedings by moving frivolous applications which lack merit and deserve rejection. 

11.     The record has been perused in the light of the submissions made by the rival sides.

12.     It apparently evinces from the perusal of the record that the State Commission vide its Order dated 29.04.2016 had substantially modified the District Commission’s Order.  Both the Orders have already been quoted hereinabove and there is no doubt about it.  The fact also remains undisputed that the State Commission’s Order has been confirmed by this Commission and the revision filed against the same in this Commission has already been dismissed vide Order dated 09.12.2022. This has not been disputed that neither the Order of the State Commission is under challenge anywhere nor the Order passed by this Commission which confirmed the Order of the State Commission.  Now the matter is very much pending in the execution court and has to be dealt by the same. This miscellaneous application moved appears to be only an ourtreach. 

It may be relevant to mention the prayers which the miscellaneous application contains.

Prayer ‘a’ seeks the revival of the Order dated 09.12.2023.  There is no Order like 09.12.2023.  Learned counsel for the applicant submits that it is a typographical error and it ought to be read as 09.12.2022 which is the Order passed by this Commission. The Bench fails to understand as to how and on what ground and under which provisions the Order passed by this Commission can be revived.  The revival by its connotation means to bring back to life something which is not existing.  The Order passed by this Commission on 09.12.2022 is by all means  alive and has attained finality and there is absolutely no occasion or ground to revive the same.

 In prayer ‘b’ the following prayer has been made:-

“Clarify that the order of the Ld. District Commission stands satisfied and no further amounts are payable to the Respondent by the Applicant.”    

As has already been said that it is now the State Commission’s Order which has to be executed and by virtue of the ‘doctrine of merger’ the District Commission’s Order stands merged with the State Commission’s Order.  Apart from this whenever the District Commission’s Order or State Commission order or any other Order comes to be executed, whether the same has been satisfied or not is primarily for the executing Court to see. As the execution proceedings are already in progress and, therefore, this prayer too appears to be clearly misconceived. 

Prayer ‘c’ is seeking to direct the respondent to refund the amounts which it is said to have received in excess of all the dues payable to him.  This prayer also appears to be clearly misconceived as it is for the executing Court to look into the calculations in the light of the terms of the decree which is to be executed. 

Another prayer is to put the Order dated 30.10.2023 passed by the District Commission in abeyance till the instant application is adjudicated.  Learned counsel for the applicants fairly admits that this prayer has become infructuous as the miscellaneous application is being finally adjudicated by this Commission today.  

13.     In view of the above the miscellaneous application lacks merits and stands rejected as such.           

14.     The Registry is requested to send a copy each of this Order to all parties in the miscellaneous application and to the learned counsel for the applicant / petitioner. The stenographer is requested to upload this Order on the website of this Commission immediately.