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Judgment
THE petitioner has filed this review application under Section 22 of the Consumer Protection Act, 1986 requesting for reviewing the order dated 06.01.2012 passed in R.P. No.4523 of 2009 by this Commission. Vide its impugned order, this Commission had dismissed the revision petition filed by the petitioner and upheld the order of the State Consumer Disputes Redressal Commission, U.T. Chandigarh ( ''the State Commission '', for short) dated 12.11.2009 passed in Appeal No.108/2009.
THE review applicant/revision petitioner has mentioned the following grounds on which he would assail the impugned order praying for its review:- (i) The finding of this Commission in para no.8 of the impugned order to the effect that "paper book of the District Forum shows that document at Serial No.(a) is at pages 54-59, documents at serial nos.(b) and (c) at page 61, document at serial no.(d) at page 63, document at serial No.(e) at page 64 etc. It is, therefore, clear to us that the submission made by the petitioner in his affidavit is factually incorrect and hence the plea taken by learned counsel in this regard is rejected " has been wrongly recorded by this Commission because according to the petitioner, the total number of pages of the complaint case along with annexures filed by the respondents-1 and 2 / complainants are 10 and 5 pages in all are covered by the written statement (filed by the petitioner before the District Forum). Thus, the total number of pages of the complaint file does not exceed the figure of 15 pages and as such, the question of page nos.54 to 59, 61, 63 and 64 contained in the file of the District Forum does not arise. It is further stated that the above mentioned pages are pages contained in the file of the State Commission Chandigarh. Hence, the judgment of the Apex Court in the case of M/s Modern Insulators Limited V. Oriental Insurance Co. Ltd. (AIR 2000 (SC) Page 1014) would be fully applicable where it has been held that the parties cannot urge new facts in appeal. (ii) In para 6 of the impugned order, this Commission has wrongly stated that "Ld. Counsel pointed out that copy of affidavit of the petitioner before the State Commission is placed at page 62 of the paper book. " It is submitted that the revision petitioner/review applicant had never filed any affidavit before learned State Commission, Chandigarh and the affidavit placed at 62 of the revision petition paper book was intended to be filed by the petitioner before the State Commission when the new documents were introduced for the first time by the respondents/complainants. It is further alleged that the said affidavit was not taken on record by the State Commission and the first appeal of the complainants/respondents was decided in a rash and negligent manner against which the petitioner had filed the revision petition in question before this Commission. (iii) This Commission has ignored the submission made by the counsel to the effect that a fraud had been committed by the complainants/respondents inasmuch as the complainants had already collected their amounts from respondent no.3/OP no.2 and yet filed the complaint in question in order to get double benefit by wrongful means. To hide this fact, the complainants had deliberately not got the service effected on the respondent no.3/OP no.2 in the original complaint before the District Forum. (iv) This Commission has failed to consider that the revision petitioner had wrongly been held equally liable along with the respondent no.3 by the State Commission. It is submitted that the basis of the finding of the State Commission was an ''agreement to sell '' entered into between one Sunita on the one hand and M/s. J.S. Dwellers (respondent no.3/OP no.2) as well as M/s. Mehta Build Con. Ltd. (petitioner/OP no.1) on the other hand. It is alleged that in all the cases where the present petitioner was held to be liable were only those where there were Apartment Buyers Agreement and where the name of the present petitioner figures in the agreement. (v) This Commission has wrongly held in para 9 of the impugned order to the extent that the present petitioner and the respondent no.3 were partners. It is submitted that the respondent no.3 who collected the amounts in question from the complainants is a limited company and not a partnership firm. It is further submitted that the procedure to fix liability on the directors of a limited company is different from the procedure in respect of the liability of the partnership firm. It is also contented that merely because some matters were compromised between the parties, it cannot be a ground to hold the petitioner liable for all times to come and in all the projects floated by respondent no.3. (vi) The respondents no.1 and 2 / complainants had not approached the Courts with clean hands because even though the amounts in question had been deposited by them with the respondent no.3/OP no.2 (M/s. J.S. Dwellers), they were included only as proforma respondents by the complainants in this complaint. Besides this, the complainants/respondents no.1 and 2 also failed to appear before this Commission in spite of the fact that a demand draft for their travel and allied expenses had been sent to them as per the directions of this Commission. This shows their conduct and as such, they are not entitled to any relief. (vii) There is no Apartment Buyers Agreement between the complainants/respondents no.1 and 2 and the petitioner because the project in which the investments were made by the complainants pertains to Baliali project, in which the present petitioner has no role to play. The petitioner wanted to bring this aspect also to the notice of the State Commission through the proposed affidavit which was not allowed to be filed by the State Commission.
We have heard learned Sh. Deepak Aggarwal Advocate, counsel for the review applicant.
LEARNED counsel has contended that the impugned order of this Commission suffers from a number of mistakes and inaccuracies which would call for its recall and review. Reiterating the specific grounds of review as enumerated as above, he has contended that the mistakes would appear to be apparent from the record and hence the impugned order needs to be reviewed.
WE have carefully considered the submissions made by the learned counsel and perused the record. So far as the first ground is concerned, we may note that the District Forum record, which was called for by us, contains 71 pages running from page no.1 to page no.71 in all. On the top of it, the District Forum file also has an index of the documents placed in the file. All the documents, which are referred to by us in the impugned order, are placed at the pages referred to in the impugned order. It is strange and unfortunate that in spite of the repeated perusal of the District Forum record by learned counsel, he is alleging that the District Forum record contains only 15 pages. To support his submission, learned counsel has pointed out that the zimni record before the District Forum filed by him shows that there is no mention or indication about the filing of the documents in question by the complainants before the District Forum. According to him, this would prove that the documents in question referred to by the State Commission in its order and also by this Commission in the impugned order were not on the District Forum file and were produced by the complainants during the course of the appeal for the first time before the State Commission which, as held by the Apex Court in the case of M/s Modern Insulator (Supra), is not permissible. We have once again perused the record of the District Forum and the documents placed thereon. The District Forum file consists of 71 pages, which are duly numbered from page no.1 to 71. Besides these pages, there is also the index of the documents placed on each of these pages which is kept at the beginning of the file. Simply because there is no mention of the filing of these documents in the Zimni Sheets of the District Forum, this cannot, by any stretch of imagination, taken to mean that the documents in question were not filed by the complainants before the District Forum. Besides this, we may also note that in their appeal before the State Commission (a copy of which has been placed by the petitioner at page 48-49 of the revision petition), it is specifically mentioned by the complainants in the grounds of appeal that the District Forum committed mistake in not considering the documents filed by them before it and not referring to any of them in its order in spite of their being placed on file and as such, the order of the District Forum deserved to be set aside. There is no rebuttal or denial of these submissions contained in the memo of appeal filed by the complainants by the petitioner before the State Commission. The petitioner had an opportunity to file a reply to the memo of appeal before the Appellate Authority, i.e., the State Commission but it failed to do so. Here, the contention of the learned counsel is that the petitioner was not allowed to file reply to the appeal. This is absolutely unbelievable. We do not find any evidence to support this submission made by learned counsel. Going by the District Forum record, grounds of the memo of appeal filed by the complainants and the observations made by the State Commission, we have no manner of doubt in our mind that the submission of learned counsel in this regard is not only false but mischievous and misleading being put forth now with a view to reopen the case. We, therefore, reject this ground taken by the petitioner in the review application.
COMING to the second ground in support of the review application, it was our recollection that learned counsel during his oral submission on the revision petition had submitted that the affidavit dated 04.11.2009 had been filed by the petitioner before the State Commission whereas learned counsel says that he never said so but had pointed out that the affidavit was not allowed to be filed by the State Commission before it and hence, the State Commission failed to take into consideration the contents of this affidavit which led to the reversal of the order of the District Forum and passing order of the State Commission against the petitioner. We accept this plea taken by the learned counsel and may be there could be some inadvertent mistake of hearing on our part while taking notes of the oral submission while assuming that the affidavit in question had been filed by the petitioner before the State Commission. In fact, the copy of the affidavit in question filed by the petitioner at page 62 of the paper book of the revision petition does give this impression as if the affidavit was before the State Commission. Be that as it may, even if we assume that the affidavit in question was not allowed to be filed by the State Commission as contended by the learned counsel, yet we have to consider the likely impact of its contents on the decision making of the State Commission, in case it had been allowed to be filed. As indicated above, the documents in question claimed to have been filed by the complainants were specifically mentioned in the grounds of appeal by the complainants. It was also contended by the complainants before the State Commission that in spite of these documents before it, the District Forum had gravely erred in not taking them into consideration while passing its order dismissing the complaint and this was the main ground in their appeal. Therefore, when the State Commission decided the appeal after hearing both the complainants and the petitioner, there was nothing wrong in the State Commission referring to these documents and considering them while accepting the appeal and setting aside the order of the District Forum. As we have discussed in the impugned order, contents of the proposed affidavit of the petitioner were not borne out from the position emanating from the District Forum record. This ground, therefore, cannot provide any basis for reviewing the impugned order. Incidentally in response to a specific query, learned counsel confirmed that the petitioner does not deny the genuineness of any of the documents placed on the record of the District Forum and referred to by the State Commission and by us in our impugned order.
SO far as the statement and the plea regarding the attempt on the part of the complainants/respondents no.1 and 2 to take double benefit by filing the complaint is concerned, learned counsel fairly admitted that there is no proof as such to support the statement that the complainants had already collected their amounts from the respondent no.3/OP no.2. In the absence of any proof to the contrary we cannot go by the hearsay. We therefore do not find any basis in the allegation of fraud having been committed in the matter by the complainants as alleged by the review petitioner. On the other hand, we are quite convinced about a sort of fraud having been committed by the petitioner/OP no.1 in collusion with respondent no.3/OP No.2 as observed by us in para 9 of the impugned order. We also do not find any force in the other grounds taken by the review applicant in his application. Learned counsel has confirmed that the petitioner does not have any doubt about the genuineness of the documents placed on the record of the District Forum. He has also confirmed that similar receipts, copies of which are placed at pages 58 and 60 of the paper book of the revision petition, were also issued by M/s. J.S. Dwellers Pvt. Ltd./respondent no.3 to some other parties while accepting the amounts from them for booking of the flats where the name of the petitioner does not figure but still the petitioner honoured those receipts issued by the respondent no.3 although learned counsel says that there were different reasons and circumstances for honouring those receipts. This aspect has already been suitably dealt with by the State Commission and noted by us in our impugned order. We are not at all impressed by this submission so as to persuade us to recall and review the impugned order.
BESIDES the above grounds, learned counsel has relied on the common order dated 08.03.2011 of this Commission in the cases of Worldwide Immigration Consultancy Services Ltd. Vs. Manohar Singh Randhawa (R.P. no.3334 of 2010) and Worldwide Immigration Consultancy Services Ltd. Vs. Suresh Kumar (R.P. No.3335 of 2010). He specifically placed reliance on the observations of this Commission in para 5 of the common order in the said two cases. We have perused the order but these observations were made in a different set of circumstances obtaining in the aforesaid cases. The review applicant cannot be allowed to draw any comfort from this common order.
IN view of the above, we do not find any merit in the review application. We have not come across any error apparent on the face of record in the impugned order which would call for its review. As discussed at length in the foregoing paragraphs, we are convinced that the review applicant/revision petitioner has made an attempt to reopen this case by making unsubstantiated and baseless allegations in the review application. By filing an affidavit in support of the allegation to the effect that the District Forum record consists of only 15 pages which actually contains 71 pages, the review applicant has apparently indulged in perjury. This is nothing but abuse of the due process of law. In the circumstances, we dismiss this review application with cost which is quantified at Rs.25,000/-. The cost shall be deposited by the review applicant with the ''Consumer Legal Aid Account '' of the N.C.D.R.C within a period of 4 weeks. List for compliance before the Bench on 26.7.2013.