Lakshmi Vatika Limited vs Ravi Rai Khurana

THIS order shall decide five consumer revision petitions, arising out of five separate complaints which were filed by M/s. Lakshmi Vatika Limited, petitioner No. 1, Shri Sanjiv Anand, petitioner No. 2, Shri Alpana Agarwal, petitioner No. 3 against the five complainants, namely, Mr. Ravi Rai Khurana, Ms. Navneet Chanana, Ms. Prakher Jyoti, Mr. Girish Jolly and Mr. Baldev Raj Khurana, who had booked separate residential plots in Laxmi Vatika Ltd., opposite party No. 1, which is a company founded by Shri Devendra Kumar Aggarwal 2. Sanjiv Anand, Petitioner No. 2 is stated to be neither the Director nor the share -holder of petitioner No. 1/company. The petitioner No. 1 had collected the money from the public towards booking of residential plots etc. However, due to certain procedural delay or lapses on the part of the persons in control of the company, various cases, civil as well as criminal, came to be filed against the company and its Directors. Shri Sanjiv Anand was a director in M/s. Mastiff Buildcon Pvt. Ltd., who had entered into a collaboration agreement with M/s. Lakshmi Vatika Limited/opposite party No. 1 and as per the said collaboration agreement, M/s. Mastiff Buildcon Pvt. Ltd. was to develop the project of the company (LVL) at Dehradun. M/s. Mastiff Buildcon Pvt. Ltd. like all other investors was a creditor of the petitioner No. 1/company.

IN the meantime, the Complainants filed a case before the District Forum. Petitioner Nos. 2 and 3 were not a party to the complaint on 27.10.2007. The Hon''ble High Court of Delhi initiated the contempt proceedings against Shri Devendra Kumar Aggarwal and Shri Vikas Singh, Directors of petitioner No. 1 in its own motion. Shri Devendra Kumar Aggarwal since deceased undertook to refund the 100 % principal amount without any deduction and without any interest in a time bound manner within 19 months. In the meantime, on 8.12.2011, ex parte final order was passed by the District Forum wherein the complaint was allowed and the complainants were awarded the principal amount, compensation and interest @ 9% p.a. On 9.5.2011, the respondents filed an execution application against the petitioner No. 1 before the Consumer Fora.

IN the meantime, on 30.6.2011, the High Court was pleased to drop the contempt proceedings on the undertaking given to the High Court by Shri Devendra Kumar Aggarwal personally. All the properties were already lying attached as per the order of the High Court. Shri Devendra Kumar Agarwal unfortunately met with an accident on 11.7.2011. In his place, Mr. Sanjiv Anand, opposite party No. 2 was inducted as one of the Directors. After the death of Mr. V.K. Gupta, Assistant Registrar, the High Court appointed Mr. Lorren Bamniyal, Joint Registrar to process the claim of investor on 17.12.2013.

ON 16.7.2013, non -bailable warrants were issued against petitioner Nos. 2 and 3, by Consumer Fora as the JDs had not filed list of Directors. The recovery certificate was issued by the Consumer Fora on 8.11.2013. The authorised representative of the judgment debtor gave undertaking on behalf of judgment debtor, petitioner Nos. 2 and 3 respectively. The said undertaking runs as follows: I, Sanjeev Anand, Director, Lakshmi Vatika Limited, undertake to pay 50% of the Principal Amount in the above matter by 16th of December, 2013 and the remaining 50% of the principal amount (as it appears in the original) by the 1st week of February, 2014 in compliance of the orders dated 8.2.2011 and 7.11.2013.

Aggrieved by that order, first appeal was preferred before the State Commission. The State Commission passed the following order: 3.1.2014.

FA -1325/13

After hearing the Counsel for the appellant and going through the record including the undertaking given by the appellant before execution Court, the stay order passed by us earlier on 13.12.2013 is modified as below:

The impugned order passed by the District Forum including the undertaking shall remain in abeyance pending the appeal provided the appellant pays half of the decretal amount within 15 days herefrom to the respondent and the remaining half within 3 months from today.

AGGRIEVED by that order, the petitioners have approached this Commission. The main argument urged by learned Counsel for the petitioner was that they are ready to pay the principal amount. They should not have been asked to pay the interest. If the matter is decided, what would be the fate of the amount deposited by them. It, therefore, means that they have lost the said amount in favour of the petitioner. He contended that interest of the petitioners should be saved. He argued that they have already given undertaking before the High Court, therefore, some lenient view should be taken against them.

INSTEAD of touching the heart of the problem, the learned Counsel for the petitioners just skirted it. It must be borne in mind that the judgment of District Forum dated 8.2.2011 has attained finality as no appeal was preferred against that order. The District Forum was pleased to hold in each of the cases, the relevant part of the case in hand runs as follows: ... Therefore, this complaint is allowed and O.P. is directed to pay a sum of Rs. 1,81,000, the amount which was received by him from the complainant along with interest @ 9% per annum as claimed by the complainant. Besides O.P. is also directed to pay a compensation of Rs. 1 lakh to the complainant as a compensation for the mental torture, harassment and use of his money for the project which was not even started by the OP. Besides he is also entitled to Rs. 5,000 towards the litigation charges.

It must be borne in mind that the undertaking given before the High Court was given in a writ petition which has not been complied with till now. Section 3 of the Consumer Protection Act, provides "The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force". The purpose of Consumer Protection Act, 1986 is that the people should get fast justice.

THE undertaking does not mean that you are permitted to lead the Consumer fora up the garden path. The petitioners swing and oscillate from DAN to Beersheba. You cannot ride both the horses at the same time. The complainants have given amount to the petitioners on 29.12.2006. One wonders whether they will get the plots or price back within their lives. Eight years have elapsed. The consumers are exasperated by senseless delay. It is not understood why the opposite parties have adopted a Fabian policy. They have made an attempt to feather their own nest. It is well settled that justice delayed is justice denied, it is also circumvented, justice mocked and system of justice under mind. The petitioners are bound by their undertaking. The undertaking given by the litigant cannot betaken lightly. It is to be presumed that undertaking is given after pondering over its pros and cons.

LEARNED Counsel for the petitioner submits that in the undertaking filed before the District Forum, scorning off the words as shown above was done by the President in presence of the petitioners. If his argument is taken as gospel truth, the petitioners should have raised the objection in stantaneously. Making this allegation after a considerable period loses its charm. The District Forum has already passed an order against them, which was not challenged. The learned Counsel lastly pleaded that they were under the threat of arrest and that is why they signed the undertaking.

I am unable to clap any value to this feckless argument. NBWs were issued against them as back as on 16.7.2013. The State Commission gave them time for 15 days to deposit 50% of the principal amount vide order dated 3.1.2014. The complainants are so powerful that they have managed to see that NBWs are not executed till date. The purpose of Law is to prevent the strong always having their way. The Fora below have always defined that order passed by District Fora should be executed.

CONSEQUENTLY , we find no illegality or impropriety in the order passed by the State Commission. On the contrary I find that the Fora below have already taken a lenient view against the petitioner. The first and foremost function of the Executing Court is to see that execution case is decided as immediately as possible. The solution lies not in the decree but in its execution. All the five revision petitions are hereby dismissed with the costs of Rs. 10,000 each upon the petitioners, under Section 26 of the C.P. Act. The said amount be paid to each of the complainants through demand draft in their favour, directly within a period of 90 days from the receipt of this order, otherwise it will carry interest at the rate of 12% p.a. till realization.