SAFEWAY BUILDERS (P) LTD. vs MOHINDER MALIK

BY this order we shall dispose of application dated 26.2.1998, filed by the applicant - Safeway Buidler (P) Ltd., praying therein that the order darted 13.10.1997, passed in Complaint Case No. C-116/96 - entitled Shri Mohidner Malik v. M/s. Safeway Builder Pvt. Ltd., wherein the applicant was directed to pay compensation of Rs. 3,25,000/- i.e. Rs. 2,25,000/- on account of water proofing operation to be carried out and Rs. 1,00,000/- on account of damages to the respondent and his wife, be recalled/set aside.

THE facts, relevant for the disposal of the above mentioned application, lie in a narrow compass. THE respondent Shri Mohinder Malik had filed a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act''), averring that he and his wife, Smt. Neelam Malik, jointly had purchased a storage space in the basement floor in the commercial property, known as ''Safeway House'', situated at 4, Local Shopping Centre, Prashant Vihar, Delhi, vide agreement dated 6th September, 1993, for a total consideration of Rs. 8,95,200/-. It was stated that the possession of the abovesaid property was taken over by the respondents on 6th September, 1993, and thereafter the same was leased out to a person on a monthly rent of Rs. 18,000/-. It was averred that the tenants, so inducted in that premises, started a lottery bazaar. It was alleged that in the first monsoon, following the taking over of possession, rain water entered the basement and there was heavy seepage from the side walls as well as from the floor of the space in question. It was stated that the party to whom the space in question was leased out approached the respondents, who in turn approached the applicant, but no action was taken by the applicant with the result the respondent filed a complaint in this Commission, claiming damages to the extent of Rs. 6,00,000/-. The claim of the respondent was resisted by the applicant and in the written statement/written version the applicant had taken certain preliminary objections with regard to the maintainability of the complaint filed by the respondent. On merits it was stated that the complaint filed by the respondent was false, motivated, malafide and was liable to be dismissed. It was prayed that the complaint, filed by the respondent, be dismissed with special compensatory costs.

The respondent filed a rejoinder to the written statement/written version, controverting the pleas taken by the applicant and reiterating the averments made by the respondent.

THIS Commission, vide order dated 13th October, 1997, passed in Complaint Case No. C. 166/96, entitled Mohinder Malik v. Safeway Builders (P) Ltd., allowed the complaint filed by the respondent and directed the applicant to pay a compensation of Rs. 3,25,000/- to the respondent (Rs. 2,25,000/- on account of water proofing operation to be carried out and Rs. 1,00,000/- on account of damages to the respondent and his wife). It was directed that the applicant was to pay the abovesaid amount within four weeks from the date of receipt of copy of the order, failing which the respondent was given the liberty to invoke the jurisdiction of this Commission under Section 27 of the Act. The applicant, Messrs. Safeway Builders (P) Ltd., has filed the present application dated 26th February, 1998, with the prayer to recall/set aside the order dated the 13th October, 1997. A notice of the above mentioned application was issued to the respondent, Shri Mohinder Malik, who has filed a detailed reply, strongly opposing the prayer made by the applicant, stating therein that the application filed by the applicant be dismissed and proceedings under Section 27 of the Act be continued against the applicant. The applicant filed a rejoinder controverting the pleas taken by the respondents and reiterating the averments made by the applicant in the application dated 26th February, 1998.

INSOFAR as the above mentioned application of the applicant is concerned, we have heard the learned Counsel for the parties at length and have also carefully gone through the documents/material on record. On a perusal of documents/material on record, it is apparent that in Complaint Case No. C. 166/96, entitled Shri Mohinder Malik v. M/s. Safeway Builders (P) Ltd., the applicant had filed a written statement on 2nd August, 1996. On that very day, the respondent Shri Mohinder Malik had filed an application with the request that a Local Commissioner be appointed with the directions to visit the basement of the property in question and submit a report about the seepage in the property in question. It is further apparent that with the consent of parties, one Shri Devinder Singh was appointed as Local Commissioner, with the directions that the Local Commissioner would inspect the spot after giving due notice for his intended visit to both the parties, would inspect the property in question and submit his report, and the case was adjourned to 2nd September, 1996, awaiting the report of the Local Commissioner. On 2nd September, 1996 none appeared on behalf of the applicant and the respondent filed an affidavit on the basis of which this Commission appointed another Local Commissioner, Mr. Yashpal Kapoor, on the same terms and conditions as contained in order dated 2nd August, 1996 and the matter was adjourned to 9th October, 1996. Even on 9th October, 1996, none was present on behalf of the applicant and the respondent filed the report of the Local Commissioner, Mr. Yashpal Kapoor, together with photographs. In the present application, filed before us, for setting aside the order dated 13th October, 1997, it is represented on behalf of the applicant that on the date of inspection, so fixed, the applicant reached the site but the Local Commissioner, so appointed, did not reach there. It is further stated that the applicant, on entering the premises was shocked by seeing the extensive spoiling of water-proofing, as a result of puncturing the walls as well as the floor of the basement in the process of partitioning the basement in small cubicles, affixing display shelves and door on the four-side wall. It is further stated that it was noticed by the applicant that the space in the basement was divided by fixing partitions on the floor, by digging holes, to convert the space into a Lottery Bazar, which activity was prohibited. It is averred that realizing the mistake the respondent became apologetic and requested the applicant not to report the matter to the concerned Authority, and assured the applicant that he would withdraw the complaint on the next date of hearing. It is stated that the applicant, trusting the above assurance, remained in that belief till 21st December, 1997 or near about, when a copy of the ex-parte order dated 13th October, 1997, passed by this Commission, was received by the applicant. It is stated that the assurance given by the respondent to the applicant was nothing but a grave and calculated fraud. It is further stated that the first Local Commissioner, namely, Shri Devender Singh, was unwilling to give a report suiting the respondent and as such the respondent misled the Commission and at the back of the applicant got appointed another Local Commissioner by name, Shri Yashpal Kapoor, who submitted his report suiting the respondent, without the knowledge of the applicant. It is stated that the respondent concealed and suppressed the true facts, secured appointment of a Local Commissioner of his choice on the basis of false affidavit and malafidely manoeuvred to exclude the applicant from participating in the proceedings. It is stated that the order dated 13th October, 1997, which has been obtained by the respondent fraudulently, be recalled/set aside and the matter be decided afresh on merits. It is also stated that in order to cover the limitation, an appeal against the order dated 13th October, 1997 has already been filed and in case if the prayer in the application is allowed, the said appeal (Appeal No. 32/98), filed in the National Commission, would become infructuous. As already stated, a notice of the application was issued to the respondent, who has filed detailed reply. It is stated in the reply filed on behalf of the respondent that the present application, filed by the applicant for the recall/setting aside of order dated 13th October, 1997, is nothing but an abuse of the process of law. It is also contended that this Commission has no powers to recall its own order and that the points raised in the application have already been urged by the applicant in his appeal pending before the National Commission. It is stated that as the matter is already subjudice before the National Commission, the present application is not maintainable and is liable to be dismissed. The applicant has filed a rejoinder controverting the pleas taken in the reply and reiterated the averments made in the application. However, the fact of filing an appeal in the National Commission has been admitted.

WE have heard the arguments advanced by Mr. S.P. Mittal, learned Counsel for the applicant and Mr. Vimal Goel, learned Counsel for the respondent. WE have also carefully perused the material placed on record and have given our careful thought to the matter in controversy.

THE contention of the learned Counsel for the applicant is that the respondent obtained the judgment/order dated 13.10.1997 by fraud and, therefore, this Commission has power to recall/review its final order. In this connection, the learned Counsel for the applicant has placed reliance on the decisions of the Hon''ble Supreme Court in case S.P. Chengalvaraya Naidu & Anr. v. Jagannath & Ors., AIR 1994 SC 853; Indian Bank v. M/s. Satyam Fibres (India) Pvt. Ltd., AIR 1996 sc 2592; and United India Insurance Company v. Sanjay Singh and Rajinder Singh, reported as 2000 Rajdhani Law Reporter 401 (SC). It was stated by him that in all the above mentioned decisions of the Hon''ble Supreme Court, it has been held that the Courts have power to recall their judgment/order if they are obtained by fraud as justice and fraud never dwell together. On the other hand the learned Counsel for the respondent, placing reliance on a decision of Hon''ble Supreme Court, in case Jyotsna Arvind Kumar Shah & Ors. v. Bombay Hospital Trust, III (1999) CPJ 1 (SC)=VII (1999) SLT 146=1986-99 Consumer 4943 (NS), stated that the application filed by the respondent for setting aside order dated 13.10.1999 is not maintainable. It was also stated by him that even otherwise also the applicant has already filed an appeal against order dated 13.10.1999 before the National Commission and as the National Commission is already seized of the matter the present application is not maintainable and the same, therefore, deserves to be rejected with exemplary costs. We have carefully considered the contention of the learned Counsel for the applicant but are not inclined to accept the same. It is significant to state that the order dated 2.8.1996 in Complaint Case No. C-116/96 was passed in the presence of both the parties. Shri L.M. Malik, Authorised Representative of the respondent as present while Shri Vijay Dhodiyal, Sales Manager of the applicant was also present. The next date in the presence of the representative of the parties was fixed on 2.9.1996 for awaiting report of the Local Commissioner. Applicant states that he believed the oral assurance of respondent given on the day of first inspection by the Local Commissioner that he (respondent) would withdraw the case and, therefore, the applicant did not attend the proceedings. It is significant to state that the case was fixed before this Commission on 12 dates fixed between 2.9.1996 and 3.10.1997. The fact that no one put in appearance for the applicant on 12 dates fixed between 2.9.1996 and 13.10.1997 indicates that the applicant was highly negligent resulting in passing of the ex-parte reasoned final order on 13.10.1997. It is, therefore, held that the judgment/order dated 13.10.1997 was not due to any fraud alleged to have been played by respondent but it was on account of gross negligence on the part of applicant as no one put in appearance on 12 dates of hearing fixed between 2.9.1996 and 13.10.1997. There is no dispute as regards the proposition of law laid down in the above referred decision of the Hon''ble Supreme Court but we find that these decisions are of no help to the case of the applicant as set up in his application.

On a perusal of the order dated 13.10.1997 we find that the objections raised by applicant in the written statement were also duly considered and discussed in the judgment/order dated 13.10.1997 by this Commission.

IN case Jyotsna Arvind Kumar Shah & Ors. v. Bombay Hospital Trust (supra), the question for consideration before the Hon''ble Supreme Court was whether Maharashtra State Commission had acted within its jurisdiction by setting aside an ex-parte reasoned final order. It was held by the Hon''ble Supreme Court that Redressal Agencies established under the Act, have no power to recall/review their own orders and as such, State Commission Maharashtra erred in setting aside the ex-parte reasoned final order and, therefore, acted without jurisdiction. In case M/s. Scooter India Ltd. v. Pardeep Kumar, reported as III (1999) CPJ 77 (NC), the National Commission has held : "The Consumer Protection Act has also not specifically conferred any power to recall ex-parte order upon the National Commission. Nor any power of review has been given to the National Commission. Therefore, this application which is in effect for review of the order passed on 22.4.1996 cannot be entertained".

THE abovesaid decision apply with full force to the facts of the preent case. Relying upon the above decisions of Hon''ble Supreme Court and of the National Commission, it is held that the remedy for the applicant was to challenge the order in appeal, before the Hon''ble National Commission if so advised and not by way of filing the present application. In view of the position explained above, the application dated 26.2.1998 is not maintainable. Further on a perusal of the application, it is apparent that the applicant has already filed an appeal before the Hon''ble National Commission which has been registered as First Appeal No. 32/98. The respondent has also filed reply to the said appeal before the Hon''ble National Commission and proceedings are stated to be pending before the Hon''ble National Commission. Since the Hon''ble National Commission is already seized of the matter and the matter is already sub-judice before the Hon''ble National Commission, the present application dated 26.2.1998 is, therefore, even otherwise not maintainable in the eyes of law before this Commission. In view of the above discussion, the application dated 26.2.1998 praying for recall/review of order dated 13.10.1997, passed by this Commission in Complaint Case No. C-166/96, Mohinder Malik v. M/s. Safeway Builder (P) Ltd., is not maintainable and is dismissed. In the peculiar facts and circumstances of the case, the parties are left to bear their own costs. Application dismissed.