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Judgment
R.K. Agrawal, President
The present Execution Applications have been filed by the Complainants/Decree Holders, namely, Vishal Gupta and Vikas Mohan Gupta, against M/s Imperia Structures Ltd (hereinafter referred to as Opposite Party/Judgment Debtor).
Since the facts involved in these Execution Applications are similar except for minor variations in the Unit numbers and their Sale Consideration, these Applications are being disposed of by this common Order. However, for the sake of convenience, the facts as enumerated in Execution Application 132 of 2020 in Consumer Complaint No. 2439 of 2017 are as under:-
On 19.01.2012, the Complainants had booked a Residential Apartment having total super area of 2400 sq. ft for their personal use in the Project, namely, “Esfera” to be developed by the Judgment Debtor at Sector 37-C, Gurugaun, Haryana. The Apartment Buyers’ Agreement was executed on 02.07.2013 between the parties wherein Apartment No. 603, 6 th Floor in Tower B in the Project was allotted to the Complainants for a total Sale Consideration of 1,02,57,200/- out of which the Complainants paid 92,61,507/- including service tax to the Judgement Debtor on different dates. Possession of the Apartment, complete in all respect, was supposed to be handed over to the Complainants within 42 months from the date of execution of the Buyers’ Agreement, however, the possession could not be delivered within the stipulated time.
Aggrieved, the Complainants filed Consumer Complaint No. 2439 of 2017 before this Commission, alleging deficiency in service and seeking refund of the amount paid along with interest, compensation and costs or alternatively, possession complete in all respects along with interest for delayed possession. The similar relief has been claimed in Consumer Complainant No. 2440 of 2017.
Vide Order dated 17.12.2019, both the complaints were disposed of as under:-
CONSUMER COMPLAINT NO. 2439 OF 2017
“ In the result, this Complaint is allowed in part directing the Developer to refund the principal amount with interest @12% p.a. from the respective dates of deposit till the date of realization together with costs of 25,000/-. This amount is directed to be paid within four weeks from the date of receipt of a copy of this order, failing which, the amount shall attract interest @14% p.a. for the same period.”
CONSUMER COMPLAINT NO. 2440 OF 2017
“ Vikas Mohan Gupta and Vishal Gupta booked a residential Unit No. 501, Floor 5, Tower B of 2400 Sq. Ft. and entered into a Builder Buyer Agreement on 27.08.2013, paying a total amount of 92,89,779/-. For all the aforesaid reasons, in Consumer Complaint No. 2439 of 2017, this Complaint is allowed in part and the Developer is directed to refund the amounts paid with interest @ 12% p.a from the respective date of deposit till the date of realization together with costs of Rs.25,000/- to be paid to the first Complainant. Time for compliance four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @14% p.a from the same period. “
a. The Complainants have averred that the Opposite Parties/Judgment Debtors have not complied with the directions given by this Commission vide Order dated 17.12.2019. Feeling aggrieved the Complainants/ Decree Holders have filed the present Execution Applications with the following prayer:-
b. “a. Pass an appropriate order against the judgment debtors thereby ordering the Judgment Debtors to pay the decreetal amount to the Decree Holder forthwith;
b. That in the event of the failure of the Judgment Debtor to pay the decreetal amount to the Decree Holder, the Hon’ble Forum may order the arrest and detention of the Judgement Debtor towards the satisfaction of the decree;
c. That the Hon’ble Forum may also order attachment of the goods and property of Imperia Structure Ltd. through its Managing Director namely, Mr. Harpreet Singh Batra and Mr. Brajinder Singh Batra and other articles that may be lying in the said premises and order the sale of the goods and other articles so attached and the sale proceeds may be appropriated towards the satisfaction of the Decree;
d. That the cost of the execution proceedings may also be allowed to the Decree Holder;
e) Any further or other order be passed by this Hon’ble Tribunal as it may deem fit and proper to be passed under the facts and circumstances of the present case. “
The similar prayer has been made in the Execution Application No. 133 of 2020 filed in Consumer Complaint No. 2430 of 2017.
c.
On 04.08.2021, learned Counsel appearing for the Opposite Party/Judgement Debtor in both the cases submitted that the entire principal amount had been paid to the Complainants/Decree Holders. He further submitted that he would try to work out a mutually acceptable time schedule for payment of outstanding interest and costs imposed by this Commission. Liberty was also granted to the learned Counsel for the Judgement Debtors to move an Application in this regard.
b. On 16.08.2021, Learned Counsel for the Decree Holder in both the cases moved Interim Application Nos. 6778 of 2021 and 5761 of 2021 seeking leave of this Commission to take on record the Interest Calculation Schedule as on 10.08.2021 which are reproduced as under:-
EXECUTION APPLICATION NO. 132 OF 2020
CONSUMER COMPLAINT NO. 2439 OF 2017
SL.
No.
Date
Instalments
No. of years as on
18.03.2021
No . of Months as on 18.03.2021
Simple Interest
Total amount Interest
+Principal
1.
19.01.2012
7,56,000.00
9.70
116
10,26,354.00
17,82,354.00
2.
04.08.2012
7,54,206.00
9.15
110
9,65,844.58
17,20,050.58
3.
06.08.2012
1,00,000.00
9.14
110
1,27,983.33
2,27,983.33
4.
01.03.2013
8,50,000.00
8.57
103
10,19,433.33
18,69,433.33
5.
01.03.2013
2,50,000.00
8.57
103
2,99,833.33
5,49,833.33
6.
01.03.2013
1,11,599.00
8.57
103
1,33,844.40
2,45,443.40
7.
29.07.2013
4,50,000.00
8.15
98
5,13,450.00
9,63,450.00
8.
04.01.2014
23,71,195.00
7.71
93
25,58,914.60
49,30,109.60
9.
11.04.2014
7,01,684.00
7.44
89
7,30,764.90
14,32,448.90
10.
27.05.2014
9,80,975.00
7.31
88
10,04,082.41
19,85,057.41
11.
03.07.2014
3,90,051.00
7.21
87
3,93,626.47
7,83,677.47
12.
08.12.2014
3,94,729.00
6.77
81
3,74,093.45
7,68,822.45
13.
17.04.2015
3,92,390.00
6.41
77
3,52,093.23
7,44,429.23
14.
10.07.2015
3,94,251.00
6.18
74
3,40,829.99
7,35,080.99
15.
02.11.2015
3,92,699.00
5.86
70
3,21,925.91
7,14,624.91
Total
92,89,779.00
Total
1,01,63,019.95
1,94,52,798.95
In paragraph No.4 of the said Applications, the details of the total Decretal Amount (Principle + interest) to be paid by the Judgement Debtors, Principle Amount paid and the Balance Amount to be paid by the Judgement Debtor as on 10.08.2021 are given which are as under:-
EXECUTION APPLICATION NO. 132 OF 2020 IN CONSUMER COMPLAINT NO. 2439 OF 2017
Sl.No.
Particulars
Amount (In Rs.)
1.
Total Decretal Amount as on 10.08.21 (Principle + Interest)
1,94,71,185.00
2.
Amount received from Judgement Debtor as on 10.08.2021
92,61,507.00
3.
Balance to be recovered from the Judgement Debtor as on 10.08.2021
1,01,93,678.00
EXECUTION APPLICATION NO. 133 OF 2020 IN CONSUMER COMPLAINT NO. 2440 OF 2017
Sl.
No.
Particulars
Amount (In Rs.)
1.
Total Decretal Amount as on 10.08.21 (Principle + Interest)
1,94,52,798.00
2.
Amount received from Judgement Debtor as on 10.08.2021
92,89,779.00
3.
Balance to be recovered from the Judgement Debtor as on 10.08.2021
1,01,63,019.00
Vide Order dated 11.11.2021, Learned Counsel for the Opposite Party/Judgment Debtor submitted that an amount of 10,00,000/- each towards interest has been paid to the Complainants/Decree Holders in both the cases. He was also directed by the Bench to file an Application along with an Affidavit of the Managing Director/Director with regard to payment of the balance amount in instalments. Since, no such application was filed by the Opposite Party, the Complainants preferred I.A.No.10350 and 10351 of 2021 for compliance of the Order dated 11.11.21 or to order arrest and detention of the Directors of the Judgement Debtor. Thereafter, I.A.No.46 and 47 of 2022 have been filed by the Judgement Debtor seeking permission to pay the balance interest amount in five instalments. In the said Applications, it is stated that the entire principle amounts and a sum of 10,00,000/- towards interest have been paid to the Complainants in both the cases as under:-
E.A.No.132/20
in C.C.No.2439/17
E.A.No.132/20
in C.C.No.2439/17
Amount (in Rs.)
Clearing Date
Amount (in Rs.)
Clearing Date
15,43,585
22.03.2021
15,43,585
22.03.2021
15,48,297
22.03.2021
15,48,297
06.04.2021
50,000
22.03.2021
50,000
22.03.2021
25,000
06.04.2021
25,000
07.04.2021
4,000
06.04.2021
4,000
07.04.2021
8,00,000
14.07.2021
8,00,000
07.04.2021
8,00,000
14.07.2021
8,00,000
14.07.2021
45,83,764
30.07.2021
45,83,764
14.07.2021
10,00,000
20.09.2021
10,00,000
20.09.2021
1,03,54,646
TOTAL PAID
1,03,54,646
TOTAL PAID
The issue which arises for our consideration is what is the exact balance amount towards interest to be paid by the Judgement Debtor/Opposite Party to the Decree Holders/Complainants.
I have heard the Complainant appearing in person, Mr. Sanjeev Khawasia, CRM of the Judgement Debtor and Mr. Pravin Bahadur, learned Counsel for Judgment Debtor, given a thoughtful consideration to the various pleas raised by them and perused the averments made in the Applications as also the Order dated 17.12.2019 passed by this Commission in Consumer Complaint Nos. 2439 of 2017 and 2440 of 2017.
The Order dated 17.12.2019 passed by this Commission was challenged by the Opposite Party/Judgement Debtor before the Hon’ble Supreme Court by filing Civil Appeal Nos. 6 and 7 of 2021 titled M/s. Imperia Structures Ltd. Vs. Vishal Gupta & Anr. The said Civil Appeals were dismissed by the Hon’ble Apex Court vide Order dated 04.01.2021.
It is settled principle of law that the Executing Court cannot go beyond the Decree. Vide Order dated 17.12.2019, this Commission has directed the Judgment Debtor/Opposite Party to refund the entire principle amount to the Complainants with interest @12% p.a. from the respective date of deposits till the date of realization together with costs of 25,000/-, within a period of four weeks from the date of receipt of a copy of Order dated 17.12.2019 failing which the amount was to carry interest @14% p.a. for the same period. The said Order has attained finality on dismissal of the Civil Appeals by the Hon’ble Supreme Court. Since, the Order dated 17. 12.2019 was not complied with by the Judgement Debtor within the time as directed by this Commission and the Civil Appeals challenging the Order dated 17.12.2019 have been dismissed by the Apex Court, the Judgement Debtor/Opposite Party is liable to refund the entire principal amount to the Complainants with interest @ 14% p.a. from the respective date of deposits till actual payment subject to adjustment of the amount already paid to the Complainants. Therefore, I direct the Opposite Party/Judgement Debtor to work out the balance amount to be calculated on the basis of interest @14% p.a. on the principle amount from the respective date of deposit upto the actual payment subject to the adjustment of the amount already paid to the Complainants. A copy of the calculation shall be supplied to the Complainants and the balance amount shall be paid to them within a period of six weeks from the date of passing of this order.
The Execution Applications stand disposed of in above terms. The pending applications, if any, also stand disposed of.