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Judgment
R. K. Agrawal, J., President
The present Appeal Execution has been filed by Mr. Nameesh Miglani (hereinafter referred to as Appellant/Complainant/Decree Holder) against the Order dated 21.03.2018 passed by the Haryana State Consumer Disputes Redressal Commission (hereinafter referred to as State Commission), whereby the Decree Holder was directed to deposit the price of the flat, i.e., 32,81,250/- alongwith interest at the rate of 18% p.a. from October 15 th , 2009 till actual payment, within three months from the date of receipt of that Order and after receipt of the payment, the M/s. JMD Promoters Limited (hereinafter referred to as the Respondent/Judgment Debtor) was directed to handover the possession of the flat within three months.
Brief facts of the case are that the Appellant/Complainant was allotted a Flat for 32,81,250/-by the Opposite Party/Judgment Debtor.As per terms of the Buyer's Agreement, which was executed between the Parties on 22.07.2006, the possession of the flat was proposed to be delivered within a period of three and a half years from the date of sanction of building plans.The Decree Holder paid 17,75,000/- to the Judgment Debtor from time to time upto 18.09.2006.Vide letter dated 15.10.2009, the Judgment Debtor cancelled the allotment of the Flat of the Decree holder as the Decree Holder did not pay the installments demanded vide letters dated 18.08.2006, 06.01.2007, 19.03.2007, 17.07,2007, 26.11.2007, 2.02.2008, 22.04.2008 and 24.10.2008 and deposited 17,75,000/- paid by the Decree Holder in his account.Thereafter, vide letter dated 26.10.2009, the Decree Holder sent two cheques of 17,75,000/- and 10,00,000/- respectively to the Judgment Debtor with a prayer to pay remaining amount including 18% interest for delayed period.But the Judgment Debtor neither encashed the said cheques nor pay any heed to the request of the Decree Holder.Alleging Deficiency in Service on the part of the Judgment Debtor, the Decree Holder initially filed a Consumer Complaint before the District Forum.The Consumer Complaint was dismissed as withdrawn with liberty to file the Complaint before State Commission.The Decree Holder filed Consumer Complaint before the State, which was allowed by the State Commission vide Order dated 31.07.2012 in following terms :-
".....this Complaint is accepted, the cancellation of the flat of the Complainant is set aside with the direction to the opposite party to restore the allotment of Flat No. D-401, Fourt Floor, Super Area 1876 square feet (approximately) at the rate of 1750/- per square feet for a total sum of 32,81,250/-. However, the opposite party can charge interest at the rate of 18% per annum on the delayed payment of installments, if any. However, at the same time it cannot be denied that the Complainant has suffered at the hands of the opposite party and therefore the complainant is awarded compensation of 50,000/- for mental agony and harassment which shall be paid by the opposite party without any further delay. Cost of litigation is quantified at 11,000/-. "
Feeling aggrieved, the Judgment Debtor filed First Appeal No. 778 / 2012 before this Commission, which was dismissed vide Order dated 30.01.2013 by observing as under:-
"The delay of 109 days cannot be condoned without sufficient cause being shown. Application for condonation of delay is dismissed. Consequently, the appeal is dismissed as barred by limitation. "
The Order dated 31.07.2012 passed by the State Commission attained finality as the Special Leave Petition Appeal (Civil) No. 14970 f 2013, filed by the Judgment Debtor was dismissed by the Hon'ble Supreme Court with the liberty to the Judgment Debtor to move National Consumer Disputes Redressal Commission for filing Review Petition.The Judgment Debtor filed Review Application No. 2202 of 2013 before this Commission, which was also dismissed vide Order dated 22.07.2013.
The Decree Holder filed Execution Application No. 03 / 2012 before the State Commission for compliance of the Order dated 31.07.2012 passed by the State Commission. On 22.04.2013, the State Commission passed following Order:-
" Learned counsel for the opposite party wants to file reply despite of the fact that there is no such provision under the Consumer Protection Act,1986 to entertain any reply in the execution proceedings. The oral submissions made by learned counsel is that they have approached the Supreme Court of India and filed SLP No. 14970 of 2013. Mere filing of the SLP before the Hon'ble Supreme Court of India would not amount to automatic stay of the execution proceedings unless and until any specific order is passed by Hon'ble Supreme Court of India.
Non bailable warrants issued against the opposite party not received back either executed or unexecuted. Fresh non bailable warrants be issued against the opposite party i.e. Sh. Sunil Bedi, Managing Director, M/s JMD Ltd. Upper Ground floor, Devika Tower 6 Nehru Place, New Delhi for 15.5.2013 to be executed through SHO police station Kalka Ji, New Delhi. However, the opposite party is at liberty to show the order passed by Hon'ble Supreme Court of India in the above SLP to the SHO concerned and the SHO would act accordingly. "
Against the Order dated 22.04.2013 passed by the State Commission, the Judgment Debtor filed Revision Petition No. 1932 of 2013 before this Commission.Vide Order dated 22.04.2013, the Revision Petition was allowed and the matter was remanded back to the State Commission to take on record the objections raised by the Judgment Debtor to the execution application and to decide the same.
The State Commission vide Order dated 21.03.2018 disposed of the Execution Application by observing as under:-
"10. The sum and substance of the objections raised by the Judgment Debtor are as follow:-
(1) Section 25 of the Consumer Protection Act, 1986 applies only in case of interim orders and not final orders.
(2) Allotment of flat was cancelled by the Judgment Debtor on October 15th , 2009 as the Complainant did not pay the instalments of the consideration amount for three years. After cancellation of the allotment, the flat in question was allotted in favour of M/s BVM Projects Private Limited. The complainant filed the instant complaint after more than two years from the date of allotment of the flat in favour of M/s BVM Project Private Limited.
(3) The factum of allotment of flat in favour of M/s BVM Project Private Limited was brought to the notice of the complainant/Decree Holder in February, 2010 when the Opposite Party/J.D. filed written version in Complaint No. 953 of 2009 before the District Forum, Gurgaon where the complainant had earlier filed complaint and the same was got dismissed as withdrawn.
(4) As per agreement executed between the Decree Holder/complainant and the Judgment Debtor/OP, the construction of the flat/project was to be completed within three years. On the date the allotment in favour of D.H. was cancelled, the building was complete in all respects and the J.D. had applied for Occupation Certificate on dated March 18th , 2010.
(5) As per order dated July 31st , 2012, the Decree Holder/complainant was obliged to seek allotment of the flat after making payment of the agreed consideration alongwith interest at the rate of 18% per annum but the complainant failed to comply with the aforesaid order. The Decree Holder neither visited the office of the Judgment Debtor nor ever offered to pay amount as per order dated July 31st , 2012.
Firstly, the executing court cannot go behind the decree. Secondly, there is no need to discuss the objections taken by the Judgment Debtor because Sh. Sunil Bedi, Managing Director Judgment Debtor who is present in person has stated that he is ready to comply with the order dated July 31st, 2012 passed by this Commission provided an amount of Rs.32,81,250/- is paid by the Decree Holder to the Judgment Debtor alongwith interest at the rate of 18% per annum on the delayed payment as ordered earlier by this Commission vide order dated July 31, 2012.
It is case of the Judgment Debtor that the amount of Rs.17,75,000/-deposited by the Decree Holder was refunded by the Judgment Debtor on October 15th, 2009 alongwith cancellation letter dated October 15th, 2009 because the payment was not made within time by the Decree Holder. Therefore, the Decree Holder again sent cheques amounting to Rs.17,75,000/- and Rs.10,00,000/- but the time were not encashed by the Judgment Debtor because allotment was already cancelled and the flat was allotted to M/s BVM projects Privet Limited. It is admitted fact that the Judgment Debtor had not received any amount from the Decree Holder.
The interest could be from the date, that is, October 15th, 2009 on which the allotment was cancelled and the amount was refunded on account of not paying the instalments regularly in spite of repeated demands raised by the Judgment Debtor vide letters dated August 18th, 2006, January 06th, March, 19th, July 17th and November 26th, 2007, February 02nd, April 22nd, and October 24th 2008. It is also pertinent to mention here that the Decree Holder in his complaint has also prayed that he is ready to pay the amount alongwith interest at the rate of 18 % for delayed period. In view of the this, compliance of the order be made accordingly to the effect that the Decree Holder shall deposit the price of the flat, that is, Rs. 32,81,250/- alongwith interest at the rate of 18% per annum from October 15 th , 2009 till actual payment, within three months from the date of receipt of this order. After receipt of the payment, the Judgment Debtor shall handover the possession of the flat within three months. In case of default, party aggrieved, may again approach this Commission. "
Feeling aggrieved by the Order dated 21.03.2018 passed by the State Commission, the Decree Holder has filed the present Execution Appeal before this Commission with following Prayer:-
"It is, therefore, prayed that the revision petition u/s 21 of the Consumer Protection Act, 1986 may kindly be accepted and to set aside the impugned order 21.03.2018 passed by the State Consumer Disputes Redressal Commission, Haryana is incompletely illegal & arbitrary manner in Execution Application No. 3 of 2012 and punish the respondent u/s 27 by allowing the Execution Application No. 3 of 2012 as prayed therein Any other relief to which the petitioner is found entitled in Law and equity may also be allowed."
We have heard Mr. Pradeep Solath, learned Counsel for the Appellant, Mr. Ajit Singh Thakur, learned Counsel for the Respondent and perused the averments made in the Appeal Execution.
Mr. Pradeep Solath, learned Counsel for the Appellant submitted that the State Commission has given absolutely wrong interpretation of the Order dated 31.07.2012 passed in Complaint No. 53 of 2011 vide which the State Commission had directed to Opposite Party/ Judgment Debtor to handover the flat for total sum of 32,81,250/-; however, the Opposite Party can charge interest @18% per annum on delayed installments, if any, meaning thereby as the payment plan was construction linked, therefore, the Judgment Debtor has to prove that the construction was as per schedule and the Decree Holder did not pay the installment as per construction schedule.Only if there is any default in installment then the Opposite Party Judgment Debtor can charge interest @18% from the date of installment due till the cancellation of flat.But the State Commission has disposed of the Execution with direction to the Decree Holder to pay interest @18% after cancellation of flat, i.e., 15.10.2009 till today.It was further submitted that the Judgment Debtor never made any statement, in the court oral or written, that he is ready to comply with the Order dated 31.07.2012 passed by the State Commission provided an amount of 32,81,250/- is paid by the Decree Holder alonwith interest @ 18% p.a. on delayed payment.However, he categorically refused to handover the flat in question on the ground that the same is already sold and there is no flat on the same floor available.The Judgment Debtor sold the flat in question firstly to M/s BVM Projects Pvt. Ltd. on 05.02.2010 and after cancellation of deal, sold the said flat to Purshotam Lal & others on 01.02.2012. He further submitted that the Order dated 21.03.2018 passed by the State Commission is illegal and arbitrary and it should be set aside.
Per contra , Mr. Ajit Singh Thakur, learned Counsel for the Respondent supported the Order passed by the State Commission as according to him the State Commission had passed a well-reasoned order and does not call for any interference.
We have given our thoughtful consideration to the various pleas raised by the learned Counsel for the Parties.
It is not in dispute that due to default in payment on various dates, the Judgment Debtor cancelled the allotment of the flat allotted to the Decree Holder by refunding the amount deposited by the Decree Holder on 15.10.2009.The State Commission allowed the Complaint vide Order dated 31.07.2012, which has attained finality.In Execution Application, vide Order dated 21.03.2018, the State Commission directed the Complainant/Decree Holder to deposit cost of flat, i.e., 32,81,250/- alongwith interest at the rate of 18% per annum from October 15 th , 2009 till actual payment, within three months from the date of receipt of this order, which is as per direction given in the Decree. It is a settled law that Executing Courts cannot go behind the Decree. We do not find any reason to interfere with the well-reasoned Order passed by the State Commission in Execution Application. The order dated 21.03.2018 passed by the State Commission in Execution Application No. 03 / 2012 is upheld. The Appeal Execution is dismissed.
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