Vivek Gupta vs Wave Megacity Centre Pvt. Ltd. & Anr

Heard Mr. Pallav Monjia, Advocate, for the decree-holder and Mr. Devashis Tiwari, Advocate, for the judgment-debtors.

Vivek Gupta has filed above execution application for executing the decree dated 22.10.2021, passed in CC/2182/2018 Vivek Gupta Vs. Wave Megacity Centre Pvt. Ltd. and another, which is as follows:-

“Accordingly, the complaint is disposed of with direction to opposite party No.1 to refund the entire amount collected from the complainant along with simple interest @9% per annum from the date of respective payments till realization, within a period of six months from today. Opposite party No.1 shall also pay to the complainant a sum of Rs.25000/- as costs of litigation.”

The judgment debtor filed Review Application No.116 of 2021, which was rejected on 22.12.2021. The judgment debtor challenged aforesaid decree dated 22.10.2021 and order dated 22.12.2021 in Civil Appeal Nos. 1524-1525 of 2022, which were dismissed, vide order dated 28.02.2022, with direction that the amount of Rs.4386897/- be paid within four weeks from today and the parties would reconcile the issue of payment of Rs.1251000/- within one week. The balance amount found due, be paid within six weeks from today.

The judgment debtor paid Rs.4386897/- on 02.04.2022 and Rs.1561098/- on 15.07.2022. The judgment debtor stated that on the principal amount of Rs.4386897/-, total interest @9% per annum from the date of respective deposit till 25.03.2022 was Rs.3018678/-. Out of which, Rs.1508592/- was paid under the “assured return” scheme to the decree holder upto 10.03.2018. After adjusting that amount, balance amount of Rs.1510086/- + cost of Rs.25000/- and accrued interest on it total Rs.1561098/- was paid on 15.07.2022 and the decree has been fully satisfied. The decree holder does not dispute payment of Rs.1508592/- under the “assured return” scheme upto 10.03.2018.

So far as the issue of payment of Rs.1251000/-, through cheque No.112102 dated 31.08.2013, is concerned, the decree-holder admits that this cheque was dishonoured but stated that in lieu of it, he had paid Rs.1251000/-, through cheque No.112104 dated 05.09.2013. A perusal of statement of account of the decree-holder as produced by the judgment-debtor along with its written reply, shows that there was no dispute in respect of Rs.1251000/-, paid through cheque No.112102 dated 31.08.2013 as even after reducing this amount, total payment of Rs.4386897/- by the decree holder is shown in the account. The dispute is in respect of Rs.760550/- allegedly paid by the decree-holder in cash on 11.07.2013. After adding this amount total payment comes to Rs.5147447/- as alleged by the decree-holder. Therefore in this execution application, two issues remain to be decided i.e. (i) Whether payment of Rs.760550/- in cash on 11.07.2013 by the decree-holder is proved? and (ii) Whether, the judgment debtor is entitled to adjust Rs.1508592/- paid under the “assured return” scheme to the decree-holder upto 10.03.2018?

I have considered the arguments of the counsel for the parties and examined the record. The judgment debtor has not issued any receipt of Rs.760550/-, allegedly paid in cash on 11.07.2013 by the decree-holder. The judgment debtor has denied payment Rs.760550/- in cash on 11.07.2013. In the absence of any receipt, payment of Rs.760550/- in cash on 11.07.2013 is not proved.

The decree holder submitted that the decree dated 22.10.2021 is for refund the entire amount collected from him along with simple interest @9% per annum from the date of respective payments till realization. Payment under “assured return scheme” @10% per annum on the deposit, till the date of handing over possession, cannot be adjusted in the decree inasmuch as the judgment debtor raised this specific ground in the review application before this Commission and appeal before Supreme Court but the review application and the appeal were dismissed. The executing court cannot go behind the decree.

The ground was raised in review application and in appeal before Supreme Court that the complainant was an investor in “assured return scheme” and not a consumer, therefore the complaint was not maintainable. This issue was not raised in the complaint, review application or in appeal before Supreme Court that payment made in “assured return scheme” cannot be adjusted in satisfying the decree. This ground is still open to the judgment debtor to be raised that in execution application. The judgment debtor relied upon the observation of Supreme Court as quoted in the judgment dated 22.10.2021, as:-

“while arriving at this conclusion, we have also kept in mind the principles of restitutio in integrum, which provides for restoration of an affected party to the situation which would have prevailed, had no wrong or injury been sustained”

He submitted that “assured return scheme” was by way of delay compensation, in case delivery of possession was delayed. While the decree-holder instead of taking possession, filed complaint for refund, which was decreed. As such the judgment debtor has right to adjust payments already made to the decree-holder by way of interest.

I find no reason to deny the judgment debtor to adjust the payment made in “assured return scheme”. Neither this Commission nor Supreme Court has directed that payment of interest would be above the payments already received by the decree holders. The decree merely directs to pay interest but does not restrain from adjusting the interest already paid. After adjusting the interest already paid, the decree has been fully satisfied.

ORDER

The execution application is dismissed with observation that the decree has been satisfied.