Kendra Upadyayara Sanghu vs Sri Mariswamy

IN this revision petition there is challenge to order dated 14.2.2011, passed by Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short ''State Commission'').

BRIEF facts of this case are that respondent/complainant being one of the members of the petitioner society/opposite party had applied for allotment of a site in the layout to be formed by the petitioner. Respondent deposited the entire amount in respect of allotment of the site. Thereafter, site No. 47 formed in the layout situated in Survey Nos. 63/2 and 61/3 of Jaraganahalli Village came to be allotted and subsequently registered in his favour on 9.12.1993.

HOWEVER, High Court in WP No. 5179/1993 filed by Sri Banashankari Temple Authorities held that the formation of 24 sites in Survey Nos. 63/2 and 63/3 of Jaraganahalli Village was unauthorized and illegal. Thereafter, Temple authorities approached the Special Deputy Commissioner, Bangalore, complaining about the illegal acts of the petitioner. The Special Deputy Commissioner initiated inquiry against the petitioner and allottees of site and after hearing the parties held, that the Sale Deeds executed by the petitioner in respect of 24 sites including the Sale Deed of the respondent dated 9.12.1993 are null and void. The said order of the Special Deputy Commissioner came to be final and on account of the acts of the petitioner, the respondent has lost his site.

KNOWING fully well, petitioner did not come forward to allot and execute alternative site in favour of the respondent in any of the sites formed by it in other lands during 1993. Whenever respondent demanded for allotment of an alternative site, petitioner went on assuring allotment of an alternative site, but there was no vacant site available for allotment. Soon after, respondent came to know that petitioner has formed Layout in Survey Nos. 45 and 47 of Jakkasandra Village, Begur Hobli, Bangalore and out of 570 sites formed therein, site No. 242 was still vacant and not been registered to any Member, the respondent approached the petitioner for allotment, but no steps have been taken. Hence, he got issued a legal notice dated 3.2.2010 calling upon the petitioner to allot the said site. In spite of service of notice, there was no compliance of the demand made therein. Hence, aggrieved by the inaction on the part of the petitioner, respondent has approached the District Forum.

IN its written statement, petitioner stated that respondent has not approached the Forum with clean hands. The cause of action arose on 9.12.1993 when respondent obtained a registered Sale Deed in his favour, this complaint filed after lapse of 17 years, is hit by law of limitation. Since Sale Deed has already been executed by the petitioner in favour of the respondent , there is no deficiency in service by the petitioner. According to the petitioner, respondent was having knowledge of the Writ Petition in the year 1993 itself.

IT is further stated that site No. 242 formed in Survey Nos. 45 and 37 of Jakkasandra Village has already been allotted to Members. This fact has been stated by the respondent himself in RFA No. 278/98 connected with RFA No. 298/98 filed by one Mr. Govindappa. As respondent was Secretary of the petitioner for 6 years, knowing all the proceedings well, he participated in getting the Sale Deed executed. Hence, filing of the complaint against the petitioner is unwarranted.

THE District Forum, vide order dated 23.12.2010, allowed the complaint and passed the following order: "The opposite party is directed to pay to the complainant a sum of Rs. 81,000 (Rupees eighty one thousand) with interest at the rate of 12% p.a. from 9.12.1993, till the date of actual payment. The opposite party is further directed to pay a sum of Rs. 50,000 (Rupees fifty thousand) as compensation and a sum of Rs. 10,000 (Rupees ten thousand) towards costs of this proceedings. The opposite party is granted 30 days time from today to comply this order."

AGGRIEVED by the order of District Forum, petitioner herein, filed an appeal before the State Commission which dismissed the appeal at the stage of admission itself.

IT is contended by learned Counsel for the petitioner that complaint is barred by limitation for a period of 17 years as the cause of action, if any, arose in the year when the allotment was made to the respondent and further in the year 1996 when the allotment was cancelled.

ANOTHER contention is that respondent who has acted as Director of the Petitioner-Society in the year 1998 and further held the post of General Secretary for almost 7 years, cannot be said to be a consumer under the Consumer Protection Act, 1986 (for short "the Act").

FURTHER, contention is that the decision of Petitioner-Society to cancel the allotment of the plot allotted to respondent was communicated to him in the year 1996 itself and as such there was nothing holding respondent back from claiming the refund. Thus, there was no deficiency in service on behalf of the petitioner since the site allotted to the respondent was cancelled in the year 1993.

RELEVANT findings of the District Forum read as under: "In view of the registration of sale deed in respect of the site No. 47 formed by the Opposite Party in Survey Nos. 63/2 and 63/3 at Jaraganeli Village came to be- declared as null and void by the authorities, the prayer of the Complainant for execution of sale deed in respect of the said site cannot be considered. Further, the alternate site suggested by the Complainant bearing No. 242 formed by the Opposite Party in Survey Nos. 45 and 47 of Jakkasandra Village is also stated to be not vacant. The Opposite Party has stated at Para 10 of its version that the Complainant himself stated in RFA No. 278/98 c/w RFA No. 298/98 that the said site has been allotted in favour of one of the members. In the circumstances, we hold that the Complainant is entitled for refund of the amount along with interest at reasonable rate as also for compensation for having put him to inconvenience and deprivation of a site in question. The Complainant has produced receipt dated 6.5.1993 for having paid a sum of Rs. 60,000 along with share fee of Rs. 26.50 to the opposite party. No other receipt is made available by the complainant. However, in view of the recital in the sale deed dated 9.12.1993 that consideration passed in respect of the said site No. 47 was Rs. 81,000 , we hold that the complainant is entitled for the said sum along with interest at the rate of 12% p.a. from 9.12.1993. Further the Complainant has prayed for awarding a sum of Rs. 50,000 for having suffered mental agony and sufferance. As the Complainant has been put to inconvenience and deprivation of a site in Bangalore, we hold that he is entitled for compensation prayed for."

THE State Commission while concurring with the findings of the District Forum dismissed the appeal of the petitioner at the admission stage itself with the following reasons: "No doubt in violation of Section 19(1) of the Religious and Charitable Endowment Act, 1927, one of the allottee has challenged the order of the Special Deputy Commissioner by filing O.S. No. 2276/09 on the file of XXVII Additional City Civil Judge, Bangalore (CCH No. 9) and the same is dismissed by order dated 4.11.2008. Therefore, when the title of the respondent/complainant itself was declared void in the eye of law there is no allotment or sale of site in favour of the complainant. However, he is entitled to get the refund of the amount paid by him. Of course, the appellant has taken a contention before the DF that the complaint filed by the complainants barred by limitation. The DF considering the evidence and the law laid down by the Hon''ble National Commission in the case of Juliet V Quadros v. Ms. Malathi Kumar, reported in 2005 CTJ NCDRC 499, wherein it was held that the cause of action remains continuous till allotment of a site or till refusal. Therefore, in the instant case the respondent/complainant demanded the appellant for refund of the amount. When the appellant/OP received the total amount sale consideration and when failed to execute the registered sale deed in favour of the complainant, it is the bounden duty of the appellant to refund the amount. Therefore, we are of the firm opinion that there is no merit or prima facie case to entertain this appeal."

THE case of respondent/complainant is that he is one of the members of the petitioner and he has applied for allotment of the site and has deposited the entire amount, as demanded by the petitioner-society. Accordingly, petitioner allotted him the site, but later on it was found that the land in question does not belong to the petitioner and the same is owned by Shri Banashankari Temple.

RELEVANT averment made by the complainant, in paras 3 and 4 of the complaint read as under: "3. The Complainant herein is one of the members of the Opposite Party i.e. Kendra Upadhyara Sanga having membership No. 72 and he had applied for an allotment of a site as the object of Opposite Party is to form a layout and allot the sites amongst the members of the Society. The Complainant being the member of the Society has deposited the entire amount as demanded by the Society for the allotment of a site. Accordingly, the Society had allotted a site bearing No. 47, in the layout formed by the Society in Sy.No.63/2 and 63/3 of Jaraganahalli village, Uttarahally Hobli, Bangalore South Taluk, Bangalore District and thereafter executed the registered sale deed on 9.12.1993 in Book No. 1, Volume No. 821, page No. 43 and 44, document No. 5620/93-94 after receipt of the entire consideration i.e., a sum of Rs. 81,000. 4. But in-the meantime it is noticed that the layout formed by the Opposite Party in Sy. No. 63/2 and 63/3 is illegal one as the said land does not belong to the Society and on the contrary the same is owned by Sri Banashankari Temple. In this regard a writ petition No. 5179/1993 was filed by the Temple Authority before the Hon''ble High Court of Karnataka and the learned Judge after hearing the matter has held that the formation of 24 sites in Sy. No.63/2 and 63/3 is illegal and unauthorized."

IN the written statement/reply filed by the petitioner, there is no specific denial to any of these averments made by the petitioner. In its reply, petitioner has nowhere denied this fact that respondent has paid the entire consideration amount of Rs. 81,000 and the site in question is not owned by the petitioner.

THE petitioner in this case after getting the entire consideration of land in question, as early as in the year 1993, has not allotted any land to the respondent. The petitioner is retaining the money of the complainant illegally for the last so many years. Thus, petitioner is having the cake and wants to eat it too, as petitioner is enjoying the money of respondent since 1993, whereas respondent has neither got back his own money nor any land. It is a clear cut case of high handedness on the part of the petitioner. The deficiency on the part of the petitioner is apparent in this case.

MOREOVER, there are concurrent findings of facts of the two Foras below to this effect that the land allotted to the respondent/complainant was illegal and as such we do not find any reason to disagree with the reasoning given by the Foras below.

RECENTLY, Hon''ble Supreme Court in Mrs. Rubi (Chandra) Dutta v. M/s. United India Insurance Co. Ltd., II (2011) CPJ 19 (SC)=IV (2011) SLT 303=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 call for interference in the exercise of power under Section 21(b) of the Act, since two Fora below have given cogent reasons in their order which does not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction.

IT is well settled that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence goes on filing meritless petitions in different Foras. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite parties of the fruits of the award must be dealt with heavy hands. As already observed, respondent has paid the entire consideration for the site as early as in the year 1993, but respondent till date, is without any land even after paying his hard earned money.

NOW the question arises for consideration is as to what should be the quantum of costs which should be imposed upon the petitioner for dragging the respondent upto this Fora when petitioner had no case at all. It is not that every order passed by the judicial Fora is to be challenged by the litigants even if the same are based on sound reasoning.

APEX Court in Ramrameshwari Devi and Others v. Nirmala Devi and Others, V (2011) SLT 196=III (2011) CLT 44 (SC)=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. 46. Usually the Court should be cautious and extremely careful while granting ex parte ad interim injunctions. The better course for the Court is to give a short notice and in some cases even Dasti notice, hear both the parties and then pass suitable biparte orders. Experience reveals that ex parte interim injunction orders in some cases can create havoc and getting them vacated or modified in our existing judicial system is a nightmare. Therefore, as a rule, the Court should grant interim injunction or stay order only after hearing the defendants or the respondents and in case the Court has to grant ex parte injunction in exceptional cases then while granting injunction it must record in the order that if the suit is eventually dismissed, the plaintiff or the petitioner will have to pay full restitution, actual or realistic costs and mesne profits. 47. If an ex parte injunction order is granted, then in that case an endeavour should be made to dispose of the application for injunction as expeditiously as may be possible, preferably as soon as the defendant appears in the Court. 48. It is also a matter of common experience that once an ad interim injunction is granted, the plaintiff or the petitioner would make all efforts to ensure that injunction continues indefinitely. The other appropriate order can be to limit the life of the ex parte injunction or stay order for a week or so because in such cases the usual tendency of unnecessarily prolonging the matters by the plaintiffs or the petitioners after obtaining ex parte injunction orders or stay orders may not find encouragement. We have to dispel the common impression, that a party by obtaining an injunction based on even false averments and forged documents will tire out the true owner and ultimately the true owner will have to give up to the wrongdoer his legitimate profit. It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our Courts because they have heardly any apprehension of being prosecuted for perjury by the Courts or even pay heavy costs. In Swaran Singh v. State of Punjab, (2000) 5 SCC 668, this Court was constrained to observe that perjury has become a way of life in our Courts. 49. It is a typical example how a litigation proceeds and continues and in the end there is a profit for the wrongdoers." 50. Learned Amicus articulated common man''s general impression about litigation in following words: "Make any false averment, conceal any fact, raise any plea, produce any false document deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for me and the probability of the Court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road."

IN our opinion, the present petition is nothing but a gross abuse of process of law and the revision petition is totally false, frivolous and bogus one, which is required to be dismissed with punitive costs of Rs. 50,000. Accordingly, we dismiss the present petition with costs of Rs. 50,000 (Rupees fifty thousand only).

OUT of the costs imposed upon the petitioners, Rs. 25,000 (Rupees twenty five thousand only) be paid to the respondent by cheque in his name. Remaining cost of Rs. 25,000 (Rupees twenty five thousand only) be deposited by cheque in the name of "Consumer Legal Aid Account" of this Commission, within one month from today.

IN case, petitioner fails to deposit the aforesaid costs within the prescribed period, it shall also be liable to pay interest @ 9% p.a., till realization.

COSTS awarded to the respondent shall be paid only after expiry of the period of appeal or revision preferred, if any.

LIST for compliance on 6.1.2012. Revision Petition dismissed.