Mukherji Builders And Construction Corporation vs Annupurna Mishra

PETITIONER /opposite party has filed this revision petition u/s 21 read with Section 22B of the Consumer Protection Act, 1986 (for short ''Act '') for setting aside order dated 11.12.2012, passed by Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (short, "State Commission ") in Misc. Case No.111 of 2012 and to transfer Execution Case No.3 of 2011 from District Forum-I, Barielly, to another District Forum within the State of Uttar Pradesh.

PRESENT case has a chequered history. It will be fruitful to narrate brief facts of this case. In the year 2000, respondent/complainant (retired Principal of a College and Senior Citizen aged 77 years old) filed Consumer Complaint (No.29/2000) against petitioner. It is alleged that as per brochure circulated by the petitioner in respect of "Divya Lok Apartments " at Bareilly regarding allotment of houses, respondent applied for allotment of house, vide her application dated 2.12.1997. Accordingly, she was allotted house no.7. As per terms of the allotment, the house was to be completed by 31.3.1999 and respondent was to be given possession of the said house by that date. Respondent deposited a total sum of Rs.4.5 lakhs by March, 1999 with the petitioner on the assurance that she will be given possession of House No.7 by 31.3.1999. On 3.2.2000, respondent visited the spot and was surprised to note that till date, building was incomplete in many respects. As such, possession was not delivered but petitioner was demanding illegal payments from her. Alleging deficiency and unfair trade practice on the part of the petitioner, respondent in her complaint made the following prayers ; "A. That the Opposite Party be directed to deliver possession of House No.7 situated at ''Jagdish Vihar '', Bareilly, duly completed in all respect to the complainant. B. The Opposite Party be directed to pay compensation of Rs.1,00,000/- to the complainant for the delay which has been caused in completing House No.7, situated at ''Jagdish Vihar '', Bareilly by the opposite party and for not delivering the possession of the aforesaid house to the complainant as agreed under the terms of Agreement in respect of the disputed house. C. That the cost of the complaint be awarded to the complainant against the opposite party. "

PETITIONER in its written statement admitted that respondent has deposited Rs.4.5 lakhs. However, petitioner took the plea that original sum of Rs.1.5 lakhs and interest due to default in payment total amounting to nearly Rs.4 lakhs is long due.

DISTRICT Forum, vide its majority judgment dated 24.2.2003, directed petitioner to handover possession of house in question to the respondent on payment of balance amount of the price along with interest @ 9% p.a. Being aggrieved, both parties filed separate appeals before the State Commission. Vide its judgment dated 27.1.2011, State Commission disposed of both appeals and passed the following order ; "However, taking into consideration that the complainant committed default in payment of monthly installments, we approve the majority judgment of the members whereby they have awarded interest @ 9% p.a. on the amount of Rs.1,50,000/- and also on the installments which were not paid in time. In our considered opinion the said award is perfectly justified and does not call for any interference. There is one more aspect of the matter and it is that since Shri Mukherjee himself is in occupation of the house and admittedly as he has been living comfortably, it will compensate him in pecuniary terms also. During the last one decade he might have saved lot of money in terms of rent and at the same time, it cannot be lost sight of that the complainant has been living in a rented accommodation through all these 14 years. We are therefore, of the decisive view that both the appeals have to be disposed of in terms of above. Accordingly, both the appeals are decided as stated above and the majority judgment of the Forum below is hereby affirmed. The builders shall hand over possession of the house in question - in ''as is where is condition '' by 10.3.2011 and while getting the deed of possession executed, the complainant shall pay the entire money as due against her in terms of the District Consumer Forum ''s award ".

THEREAFTER , as evident from the list of dates and events, respondent vide letter dated 7.3.2011, forwarded a sum of Rs.2,18,813/- by way of demand draft to the petitioner. But, petitioner vide its letter dated 17.3.2011, returned the demand draft as tendered by the respondent and asked her to tender the actual amount due.

RESPONDENT thereafter, filed Execution Case No.3 of 2011 under section 25 read with Section 27 of the Act, on 28.3.2011 in which following prayers were made ; "1. That the opposite party be directed to accept the said amount of Rs.2,18,813/- sent by the applicant through the said Bank Draft or through cheque or cash and hand over the actual possession of the said House No.7, Divya Lok Apartments, in front of Jagdish Vihar, Bareilly to the applicant forthwith and also to pay Rs.2,500/- to the applicant towards the cost in compliance of the orders of the Hon ''ble Forum and the Hon ''ble State Commission ; 2. That if the opposite party does not deliver the possession of the said house to the applicant within the period specified by the Hon ''ble Forum, then the Hon ''ble Forum may kindly direct the Senior Superintendent of Police, Barielly to have the possession of the said house delivered to the applicant through police force (after disposing the opposite party from the said house) ; OR 3. That the Hon ''ble Forum by exercising the powers under Section 25 of the Consumer Protection Act, 1986 have the aforesaid orders of the Hon ''ble Forum and the Hon ''ble State Commission complied with by the opposite party. OR 4. That on account of not complying with the orders of the Hon ''ble Forum and the Hon ''ble State Commission by the opposite party, kindly take the action against the opposite party under section 27 of the Consumer Protection Act, 1986 and the opposite party be sentenced to undergo imprisonment for 3 years and also to impose a fine of Rs.10,000/- on the opposite party. "

It appears that as a counter blast, petitioner also filed Execution Case No.4 of 2011 against respondent on 8.4.2011.

BOTH parties filed their respective objections to the Execution cases. Later on, petitioner filed an application for consolidation of the Execution Cases. District Forum, vide order dated 22.3.2012, consolidated both the Execution Cases and adjourned the matter for 3.4.2012 for hearing. On 3.4.2012, as J.D. had not filed separate application for decree, hence, matter was adjourned to 10.4.2012. It transpires from the record that petitioner has not mentioned as to what happened on 10.4.2012 and thereafter. But, as apparent from record on 1.6.2012 petitioner filed an application for adjournment which was opposed by the counsel for the respondent. However, Petitioner for the reasons best known to him, has not placed on record copy of the order passed by District Forum on this application for adjournment. However, during the course of arguments before this Commission, learned counsel for petitioner has admitted that petitioner ''s application seeking adjournment for 1.6.2012, was allowed by the District Forum.

THEREAFTER , on 5.6.2012, petitioner filed an application before the District Forum praying that time be granted to him for bringing order from the State Commission for transfer of the case. However, it would be pertinent to point out that petitioner has not mentioned as to what order was passed on this application. Thereafter, petitioner filed a transfer application u/s 17 (A) of the Act before the State Commission which dismissed the same, vide its impugned order. We have heard learned counsel for the parties and gone through the record.

THE impugned order passed by the State Commission read as under ; "Looking into the provisions under Section 17A of the Consumer Protection Act, 1986 that the application of the complainant may be allowed at any stage of the proceeding for transfer of any complaint pending before the District Consumer Forum to another District Consumer Forum within the State and looking into this fact that the applicant is not the complainant and the proceeding pending before the District Consumer Forum is not the complaint. This transfer application does not deserve to be allowed, hence dismissed accordingly. "

APPLICATION dated 5.6.2012 in which petitioner has made serious allegations against President of District Forum-I, Bareilly is reproduced as under ; "1. That the said case was fixed for disposal on 1.6.2012, but Shri Nandan Singh, Advocate for the applicant, had gone to his home town Etah to attend the marriage of his nephew and mentioning this very fact he had moved an application for adjournment whereupon Shri Radha Kamal Saraswat, Advocate for the decree-holder had lodged his objection. 2. That the said application was submitted by Shri Anil Mukerji before the Forum at 11.20 a.m. At that time, the learned President of the Forum was not presiding and only Member Shri A.K.Sharma was presiding, who allowing the adjournment applications given in other files, was adjourning them for 25/26.6.2012, but when the Court Master presented the said application of the applicant along with the file before the learned Member, he said that only the learned President of the Forum would take the decision on this application for adjournment, who is taking personal interest in this file and he has been asked not to take decision on the adjournment application in this file, therefore, he would not fix any date in this matter. When Shri A.K.Sharma said this, then the applicant himself, Advocate Shri K.L.Goel, who is the Advocate in this case on behalf of Smt.Uma Katara, Advocate Shri Ravendra Singh, who is the junior of Advocate Shri Nandan Singh and Advocate Shri Abhishek, who is looking after the interest of Mukerji Builders, who were present, Shri K.L.Goel, Advocate in the Open Court at that very time said to Shri A.K.Sharma, Member, that if the learned President of the Forum is taking personal interest in this matter, then it would be proper in the interest of justice to transfer this matter from this Forum to any other Forum and since he is personally interested, therefore, he would certainly give the decision only in his favour of that person in whose favour he is interested. Saying this Shri K.L.Goel, Advocate, returned form the Forum. 3. That the learned President of the Forum presided at about 1.00 p.m. At that very time, Shri Radha Kamal Saraswat, Advocate for the decree-holder, Shri Ghanshyam Sharma, Advocate, who is the former President of the Bar Association Bareilly and Shri Ram Kumar Sharma, Advocate, who is the son-in-law of the decree-holder and also a relative of Shri Ghanshyam Sharma, Advocate reached before the Forum. The learned President of the Forum asked them to sit in his Chamber and he would have talks with them and he would dispose it of today itself, but since the adjournment application has come, therefore, he is fixing it for 5.6.2012, Shri Radha Kamal Saraswat, Advocate in my presence and in the presence of Shri Ravendra Singh also said to Ram Kumar Sharma that talks had taken place and he should not worry and then all the three of them went inside the Chamber of the learned President and came out from there happily after half an hour. 4. That this conduct of the learned President of the Forum is against the judicial practice and the principle of natural justice. He himself is ready and willing to decide the case in favour of the decree-holder. Therefore, justice cannot be expected from him. 5. That application transfer for the said case is being filed before the State Commission on the aforementioned grounds. 6. That the complainant-application has no hope of justice from the learned Forum. The President of the Forum is interested in favour of the decree-holder. From inviting their Advocate, son-in-law of the decree-holder and their relative Advocate Shri Ghanshyam Sharma in the open court for sitting and having talks in his Chamber, it is clear that he would not do the justice. 7. That in other cases 25/26th June is being fixed as the next date of hearing, but in this case, the date is being fixed after 2 or 3 days. From this also, this fact gets force that the President is personally interested. Therefore, in the interest of justice, it is prayed that time be granted for bringing order from the State Commission for the transfer of the said case so that justice is done to the applicant. Dated : 5.6 2012 Applicant Through Advocate "

The gist of allegations made in above application is that ; "Shri A.K.Sharma, Learned Member said that only the learned President of the Forum would take the decision on this application for adjournment, who is taking personal interest in this file and he has been asked not to take decision on the adjournment application in this file, therefore, he would not fix any date in this matter ".

IT does not appeal to common sense that a Member of the Bench of the District Forum would tell the petitioner (being a litigant before that Forum) that President of the Forum is personally interested in this matter. These allegations have been made by the petitioner just to malign the President of Forum and to lower his reputation in the eyes of general public. Interestingly, application dated 5.6.2012, is not supported by affidavits of any of those Advocates who were present along with the petitioner at the time when Mr.A.K.Sharma, Member of the Bench had made above so-called remarks. Further, as per petitioner ''s case Shri K.L.Goel, Advocate in open court had said to Shri A.K.Sharma, Member "that if the learned President of the Forum is taking personal interest in this matter then it would be proper in the interest of justice to transfer this matter from this Forum to any other Forum ". Had above remarks been made by Shri A.K.Sharma, Member of the Forum, then what prevented the petitioner from filing affidavits of the above noted by his own Advocates, who were allegedly present at that time. This fact that petitioner has not filed any affidavit of its own advocates alleged to be present at that time, goes on to show that the story put forward by the petitioner in his application dated 5.6.2012, is purely a "Cock and Bull Story ". Moreover, above allegations made against the President of District Forum are in the nature of "hearsay ".

THE only intention of the petitioner in filing of the transfer application is just to delay the matter and to deprive an old lady who has been fighting litigation for the last more than 13 years, the fruits of the award. It is an admitted fact that petitioner after getting a sum of Rs.4.5 lakhs as early in March, 1999, has been enjoying that money and interestingly, he is also in possession of the flat in question.

PETITIONER /builder in the present case "wants to have the cake and eat it too ", as admittedly he has received substantial amount of the flat. Thus, petitioner being the builder is enjoying the possession of the flat as well as substantial amount of consideration paid by the respondent. On the other hand, respondent after having paid substantial amount of consideration is still without any roof.

SUCH type of unscrupulous act on the part of petitioner/builder should be dealt with heavy hands, who after grabbing the money from the purchaser, enjoy and utilize their money but does not hand over the flat, on one pretext or the other. Petitioner has made respondent run from one fora to other fora during last 13 years so that respondent cannot have any roof over her head and petitioner can go on enjoying respondent ''s money without any hindrance. It is also apparent from the record that petitioner has not approached this Commission with clean hands and has also concealed material facts, since it has not placed on record two/three relevant and important orders passed by the District Forum as observed herein before. On this ground also, petitioner is not entitled to the relief sought. Reference in this regard can usefully be made to the observations made by Hon ''ble Supreme Court in DalipSingh Vs. State of U.P (2010) 2 SCC 114, where it observed ; "1. For many centuries Indian Society cherished two basic values of life i.e. "satya " (truth) and "ahinsa " (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vague in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of falsehood, misrepresentation and suppression of facts in the court proceedings. 2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. "

PETITIONER in the present case has made absolutely baseless, false and frivolous allegations against the President of District Forum, in order to escape from justice and to deprive the respondent fruits of the award. Judgments cited by counsel for petitioner namely ; (i) State of West Bengal and Others Vs. Shivananda Pathak and Others, (1998) 5 SCC 513 and (ii) Satish Jaggi Vs. State of Chhattisgarh and Others, (2007) 3 SCC 62, arenot at all applicable to the facts of the present case.

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 Fora. Time and again courts have held that if any litigant approaches the court of equity with unclean hands, suppress the material facts, make false averments in the petition and tries to mislead and hoodwink the judicial Forums, then his petition should be thrown away at the threshold. Equity demand that such unscrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree must be dealt with heavy hands. Now question arises for consideration is as to what should be the quantum of costs which should be imposed upon such petitioner for dragging respondent upto this Forum, when petitioner had no case at all. It is not that every order passed by the judicial Fora is to be challenged by the litigant even if the same are based on sound reasonings.

APEX Courtin RamrameshwariDevi and Ors. Vs. Nirmala Devi and Ors., Civil Appeal Nos.4912-4913 of 2011decided on July 4, 2011 has observed ; " 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. 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 hardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh Vs. State of Punjab (2000) 5 SCC 668 this Court was constrained to observe that perjury has become a way of life in our courts. It is a typical example how a litigation proceeds and continues and in the end there is a profit for the wrongdoers. 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 him and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road. "

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. 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. 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. "

THUS , looking from any angle we do not find any merit in the present revision. Keeping in view the peculiar facts and circumstances of the case and the conduct of petitioner in delaying the matter and creating all sorts of obstructions so that respondent cannot enjoy the fruits of the award, present revision being bogus, frivolous and mischievous one, is liable to be dismissed with punitive costs. Accordingly, we dismiss this revision petition with punitive cost of Rs.50,000/- (Rupees fifty thousand only). Out of total cost imposed upon the petitioner, Rs.25,000/- (Rupees Twenty five thousand only) be paid by way of demand draft to the respondent and balance amount of Rs.25,000/- (Rupees Twenty five thousand only) be deposited by way of demand draft in the name of ''Consumer Welfare Fund '' as per Rule 10A of Consumer Protection Rules, 1987, within four weeks from today.

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

LIST for compliance on 31.5.2013.