H.M. Constructions vs Kishan Vithal Rao Kulkarni , Beena Kulkarni

IN this revision petition, there is challenge to order dated 30.5.2006, passed by Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short, ''State Commission '').

RESPONDENTS/complainants case is that they paid a sum of Rs.15,26,000/- for purchase of apartment constructed by the petitioner/opposite party. Pursuant to the said payment, respondents were put in possession of the flat in the month of August, 1994. It had been agreed between the parties that for the extra work done by the petitioners, the respondents are liable to pay a sum of Rs.72,449/-. Despite handing over the possession to the respondents, petitioners are not executing the sale deed. Accordingly, respondents filed complaint before the District Forum. In response, petitioner in its written statement took the plea that since respondents are liable to pay for the extra work, the sale deed could not be executed. However, it has been admitted by the petitioner that possession was given to the respondents in the year 1994.

District Forum, vide its order dated 21.1.2004, allowed the complaint of the respondents and passed the following directions; "Complaint is allowed. Opposite party is directed to make deed of conveyance in favour of the complainant in respect of ''A '' and ''B '' schedule of property within 60 days from the date of this order. The complainants have to bear the registration charges. The complainants are directed to pay Rs.72,449/- to the opposite parties at the time of registration. "

Aggrieved by order of District Forum, petitioners filed appeal before the State Commission, which was dismissed vide impugned order. Hence, this revision.

IT is contended by learned counsel for the petitioners that complaint of the respondents is barred by limitation. Secondly, respondents had an opportunity to adjudicate their grievance before the Arbitrator, thus, consumer forum did not have the jurisdiction to deal with the present case. In support, learned counsel for petitioners has relied upon following judgments ; "(i) Secretary Bhubaneshwar Development Authority Vs. Susanta Kumar Mishra, 2009 (4) SCC 684 ; (ii) State Bank of India Vs. B.S. Agriculture Industries, (I) 2009 (5) SCC 121 ; (iii) Kandimalla Raghavaiah and Company Vs. National Insurance Company and Anr. 2009 (7) SCC 768 ; (iv) Synco Industries Vs. State Bank of Bikaner and Jaipur and Ors. 2002 (2) SCC 1 ; (v) Surinder Mohan Vs. Municipal Corporation and Anr. 2006 (3) CPJ 136 (NC) ; (vi) Haryana Urban Development Authority and Anr. Vs. Satish Hans, 2009 (7) SCC 282 and (vii) France B. Martins and Anr. Vs. Matalda Maria Teresa Rodrigues 1999 (6) SCC 627. "

On the other hand, it has been contended by learned counsel for respondents that after having lost upto the Apex Court, petitioners have raked up new issues which are not permissible under the law. There is no infirmity or illegality in the orders passed by the Fora below. State Commission in its impugned order has observed; "The case of the complainants is that they have paid a sum of Rs.15,26,000/- for purchase of an apartment constructed by the OPs. Pursuant to the said payment the complainants were put in possession of the flat in the month of August, 1994. It is also seen from the impugned order that the OPs have done certain extra work for which the complainants are liable to pay a sum of Rs.72,449/-. The complainants before the District Forum fairly admitted and agreed to pay the same to the OPs. In view of the said fact, the DF has ordered the OP to execute the sale deed and also directed the complainant to pay a sum of Rs.72,449/- to the OPs. After going through the impugned order, we are of the view that a substantial justice has been done to the parties. The OPs have received the full consideration ought to have executed the sale deed in favour of the complainant. Hence, in our view the direction issued by the DF directing the OPs to execute the sale deed in favour of the complainant and also the DF having directed the complainants to pay Rs.72,449/- to the OPs does not call for interference in the impugned order. "

ALL the contentions raised by learned counsel for the petitioners are to be rejected at the outset in view of the conduct of the petitioners throughout this litigation as well as in view of admissions made by the petitioners before the District Forum. Grievance of respondents before the District Forum was that they had paid the entire amount of consideration but still petitioners are not executing the conveyance deed. Petitioners in their reply filed before the District Forum, have admitted that possession of the apartment has been given to the respondents, though certain amount had to be paid prior to the registration of sale deed.

Petitioners, in para no.21 of their written statement have admitted that possession has already been handed over to the respondents. Relevant averment in this regard read as under ; "It is true possession was handed over on 4.8.1994. "

SINCE, possession of apartment has been handed over to the respondents as way back in the year 1994, then why the petitioners are not executing the sale deed. Moreover, as per Annexure R-3 (Page no.26, Vol.III of the paper book) possession letter had been issued to the respondents without any condition and the same read as under ; " 4.8.1994 Dear Mr. Kulkarni, We are happy to inform you that we are hereby handing over possession of your flat no.201 at West Park, No.26, 11th Main, 14th ''A '' Cross, Malleswaram, Bangalore 55. We wish you a pleasant stay. Thanking you, Warm regards, For H.M. Constructions Sd/ (Sreenivas N.) "

Once, possession has been handed over without any condition, now it does not lie in the mouth of the petitioner to say that they are not liable to execute the conveyance deed.

DISTRICT Forum, in its order has directed the respondents to pay Rs.72,449/- to the petitioners at the time of registration. It is apparent from the record that respondents have already deposited that amount. On 15.9.2011, learned counsel for respondents gave a statement before this Commission that in compliance of order dated 21.1.2004, passed by the DISTRICT Forum, respondents are ready to make the payment of Rs.72,449/- by way of demand draft and payment shall be made before the next date of hearing. Accordingly, learned counsel for petitioners sought time to take instructions from his client. On 11.10.2011, counsel for respondents brought a demand draft of Rs.72,449/- in the name of petitioners and stated that he is ready to deposit the draft with this Commission. Accordingly, respondents were allowed to deposit the draft, without prejudice to the rights of both the parties. On 1.11.2011, learned counsel for petitioners gave a statement that petitioners will execute the sale deed in favour of the respondents, within six weeks. Accordingly, the matter was adjourned for 16.1.2012. On that day, none appeared for the petitioners, while counsel for respondents stated that sale deed has not yet been executed, though period of six weeks is already over. Thus, the matter was adjourned for 20.4.2012. In the meanwhile, petitioners filed an application for recall of order dated 1.11.2011. After hearing learned counsel for the parties, application for recall of order dated 1.11.2011, was dismissed vide order dated 20.4.2012. Since, petitioners had not complied the order dated 1.11.2011 inspite of giving an undertaking, the ex parte stay which the petitioners had been enjoying since 15.1.2010, was vacated.

Thus, it is manifestly clear from the record that the intention of the petitioner is not to comply the order passed by the fora below as far back in the year 2004 and not to execute the sale deed, which must have caused further harassment to the respondents.

HENCE, in view of the specific undertaking given by learned counsel for the petitioners before this Commission to execute the sale deed and thereafter backing out of the same, none of the arguments advanced by learned counsel for petitioners are sustainable nor any of the judgments (supra) are applicable to the facts of the present case. It is well settled that those litigants who deliberately and willfully defy the orders of the Consumer Fora, inspite of having given specific undertaking back out and flout the orders with impunity, should not be spared unscathed and must be dealt with heavy hand. It is not that Consumer Fora are helpless in such type of matter or are unable to execute the orders passed by Fora below which are just, fair and reasonable. The only question remains to be seen is as to what costs should be imposed on such type of litigants.

Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors., Civil Appeal Nos.4912-4913 of 2011 decided on July 4, 2011 has observed ; "45. We are clearly of the view that unless we ensure that wrong doers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court ''s otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases. Apex Court further observed; "54. While imposing costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc. 55. The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellants in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The appellants have also wasted judicial time of the various courts for the last 40 years. 56. On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well-reasoned impugned order/ judgment. These appeals are consequently dismissed with costs, which we quantify as Rs.2,00,000/- (Rupees Two Lakhs only). We are imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation. "

PRESENT petition has been filed under Section 21(b) of the Consumer Protection Act,1986. It is well settled that the powers of this Commission as a Revisional Forum are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order, which has resulted into miscarriage of justice. Hon ''ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ; "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora ".

Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of power under section 21 (b) of the Act. Accordingly, present petition is hereby dismissed with punitive costs of Rs.50,000/- (Rupees Fifty Thousand only). Out of the costs, Rs.25,000/- shall be paid to the respondents by way of demand draft in their name. Balance amount of Rs.25,000/- be deposited by way of demand draft in the name of "Consumer Legal Aid Account " of this Commission, within four weeks, with this Commission. In case, petitioners fail to deposit the said costs, within the prescribed period, then they shall also be liable to pay interest @ 9% p.a., till realization.

LIST on 30.10.2012 for compliance.