Silvex Realty Ltd vs Pravin Padmakar Banavalikar

PETITIONER /Opposite Party has filed above noted three revision petitions under Section 21(b) of Consumer Protection Act, 1986 (for short, ''Act '') against ex parte order dated 3.12.2012 followed by order dated 19.7.2013 passed by the State Commission, Maharashtra (for short, ''State Commission '').

AS per averments made in the revision petitions, respondents /complainants had booked flat in one of the projects of the petitioner company. Respondents filed a winding up company petition before Bombay High Court for reliefs claimed all concerning to their employment with the petitioner which also subsequently included the claim of the flats. Thereafter, respondents filed complaint before the State Commission for possession of flat and incidental claim. Since, settlement talks were going on and the matter was being heard in the Bombay High Court, petitioner sought adjournment on two dates. On 3.12.2012 State Commission proceeded ex parte against petitioner without written version and directed the respondents to file the affidavits in evidence. On 19.12.2012, before Bombay High court both parties argued the matter for some time and sought time to take instructions from their respective clients so that petitions can be disposed of. Bombay High Court, accordingly passed the following order; "(i) The parties are agreeable to get the disputes raised in both the Company Petitions resolved through arbitration. (ii) Mr. Ashish Kamat, Advocate practicing in this Court will be the Sole Arbitrator to resolve the dispute in respect of both the references. (iii) The respondent will hand over the flats to the petitioner in Company Petition No.386 of 2011 within 60 days of receipt of NOC from his bankers or 31st March, 2012 whichever is later and to the flat of petitioner in Company Petition No.387 of 2011 on or before 31st March, 2013, on terms and conditions as were agreed between the parties. The letter addressed to the advocate by Mr. Shailesh Mahadik is taken on record. (iv) The petitioner shall withdraw the complaint filed by them in the Consumer Court and the claim of the petitioner in respect of damages and interest raised therein will be agitated in the arbitration proceedings. (v) The petitioner will be at liberty to move an application under section 9 or 17 of the Arbitration and Conciliation Act 1996, upon the statement of the respondent that the respondent are entitled to receive balance payments from the purchasers of flats in the companies project at Neral. Petition disposed of in above terms. "

It is further alleged that subsequently petitioner under the impression that the respondents will withdraw the above said complaints and in pursuance of the same, the respondents also took adjournment on 9.1.2013. Therefore, petitioner did not file any application for setting aside order dated 3.12.2012. However, to the shock and surprise of the petitioner, respondents filed affidavit in evidence on 19.7.2013 and the State Commission kept the matter for arguments on 1.10.2013. It is further stated that on 19.7.2013, the counsel appearing for the petitioner apprised the State Commission about the order of the Bombay High Court but State Commission, without application of mind had kept the matter for arguments.

HENCE , this revision petition.

WE have heard the learned counsel for the petitioner and gone through the record. It has been contended by learned counsel for the petitioner that the issue involved/reliefs claimed in the complaints filed before the State Commission have already been decided by Bombay High Court on 19.12.2012. As such any order passed by the State Commission after 19.12.2012 (the order of Bombay High Court) would mean that double benefits/claims are awarded to the respondents.

IN R.P. No. 3480 of 2013, the respondent/complainant had sought the following reliefs in its complaint; "(a) To hold and declare that the opposite party is guilty of deficiency in service and unfair trade practices as per the provisions of Consumer Protection Act, 1986; (b) To direct the opposite party to hand over possession of flat No.201, 2nd Floor, in the building known as "Tuscany Terraces -Ixia ", Village Dhamote, Taluka Karjat, District Raigad, admeasuring about 831.00 sq. feet, to the complainant; (c) Direct the opposite party to pay compensation of Rs.16,42,500/ -, calculated @ Rs.1,500/ - per day from 01.01.2009 till 31.12.2011 and at the same rate till handing over of the possession; (d) To direct the opposite party to complete incomplete work if any, and obtain Occupation Certificate from the Competent Authority in respect of the Flat No. 201, 2nd Floor, in the building known as "Tuscany Terraces -Ixia ", Village Dhamote, Taluka Karjat, District Raigad, about 831.00 sq. feet; (e) To from and register Co -operative Housing Society, condominium of apartments as the case may be and execute deed of conveyance in favour of such society/condominium; (f) To direct the opposite party to pay compensation the sum of Rs.5,00,000/ - (Rupees five lacs only) towards compensation for inconvenience, mental agony, stress, etc. experienced by te complainant in the last three years. (g) To direct the opposite party to pay the complainant the sum of Rs.50,000/ - (Rupees fifty thousand only) being the legal and other incidental expenses incurred by the complainant; "

PETITIONER has mischievously and deliberately made wrong averments in the list of events which is apparent herein as under; "19.12.2012 : - The matter was settled before the Hon''ble Bombay High Court, all the reliefs were granted to the Respondent including the interest and damages and the Respondent was specifically directed to withdraw the complaint before the State Commission. "

According to above averments, the matter was settled before the Bombay High Court and all the reliefs were granted to the respondents including interest and damages and respondent was specifically directed to withdraw the complaint before the State Commission.

IN this regard, it would be pertinent to go through para (iii) of the order of Bombay High Court, which specifically states; "(iii) The respondent will hand over the flats to the petitioner in Company Petition No.386 of 2011 within 60 days of receipt of NOC from his bankers or 31st March, 2012 whichever is later and to the flat of petitioner in Company Petition No.387 of 2011 on or before 31st March, 2013, on terms and conditions as were agreed between the parties. The letter addressed to the advocate by Mr. Shailesh Mahadik is taken on record. "

THERE is nothing on record to show that petitioner had handed over the possession of the flats to the respondents, in terms of the above directions of Bombay High Court. Present petitions are absolutely silent on this material aspect. Moreover, as per order of Bombay High Court, it is clear that respondent will agitate his claim of damages and interest only in the arbitration proceedings. Therefore, we hold that petitioner is guilty of suppression of true and material facts before this Commission, with regard to handing over of the possession of the flats to the complainants and thus, has tried to mislead us. On this short ground alone, present petitions are liable to be dismissed.

BE that as it may, the impugned order passed by the State Commission states; "Heard Mr. Jamshed Ansari, Advocate for the complainant. Opponent and their Counsel are absent. Opponent is already proceeded ex parte without written version. They also failed to file their evidence on affidavit. As per order dated 09/01/2013 complainant files evidence on affidavit. He undertakes to serve copy of the same on the opponent during the course of the day. He also files pursis closing his side of evidence. Since evidence part of the complaint is over, both the parties are now directed to file brief notes of arguments under Regulation 13 (2) of Consumer Protection Regulation, 2005 before the Registrar (Legal) two days prior to the next date. Matter stands adjourned to 01/10/2013. "

ABOVE order clearly shows that petitioner itself has chosen not to appear before the State Commission, in spite having knowledge to this effect that the complaint filed by the respondents are still pending before the State Commission. It is well settled that under section 21(b) of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

IN the present case, there is no illegality or infirmity in the impugned order passed by the State Commission. Moreover, no jurisdictional or illegal error has been shown to us to call for interference in the exercise of power under Section 21(b) of the Act. The present revision petitions being frivolous and without any legal basis have been filed just to mislead this Commission are accordingly dismissed with cost of Rs.25,000/ - (Rupees Twenty Five Thousand only) in each case. Out of the above costs, Rs.15,000/ - each, be paid to the respective respondent by way of demand draft in their name and the remaining cost be deposited by way of demand draft in the name of "Consumer Legal Aid Account " of this Commission, within four weeks.

IN case, petitioner fails to deposit the aforesaid costs within the prescribed, then he shall be liable to pay interest @ 9% p.a., till realization. Costs awarded to the respondents be paid only, after expiry of the period of appeal or revision preferred, if any.

LIST for compliance on 29.11.2013.