Stanley Engineering (P) Ltd vs Haryana Urban Development

ALLEGING deficiency in service on the part of the opposite party-HUDA, the above named complainant has filed this complaint praying for a direction to pay a sum of Rs.3,56,07,000/- towards the escalation in the cost of construction between 1995 to March 2011 besides a sum of Rs. 30 Lakhs on account of harassment, inconvenience, hardship and loss of business including other co-related opportunities alongwith interest @ 18% per annum from the date of filing of the complaint.

ON going through the averments and allegations made in the complaint, it would appear that the present complaint is by way of second round of litigation, which the complainant has initiated against HUDA. Earlier on 2.10.1995, the complainant had filed a complaint before Haryana State Consumer Disputes Redressal Commission (for short, "the State Commission") alleging deficiency in service on the part of HUDA and claiming different reliefs, which complaint was allowed by the State Commission vide order dated 23.12.1998 thereby giving the following directions to HUDA :- "i) to refund to the complainant the excess amount charged from the complainant amounting to Rs.1,05,132/- and Rs.2980/- with interest at the rate of 10% thereon from the date of deposit by the complainant upto the date of refund by HUDA. ii) to restrain from demanding Rs.3,31,326/- as the HUDA has already realized from the complainant amount in excess; iii) to pay to the complainant by way of compensation towards escalation to the cost of construction etc. a sum of Rs. Two lacs; iv) to pay Rs. Twenty thousand for harassment and mental agony etc. suffered by the complainant; v) to pay costs of litigation quantified as Rs.2000/-; and vi) to sanction the plans submitted by the complainant forthwith without demanding any extension charges from the complainant for next two years immediately after the sanctioning of the plans."

Aggrieved by the said order, the opposite party-HUDA filed appeal (First Appeal No. 35 of 1999) in this Commission which was decided by this Commission vide order dated 30.06.2008 thereby modifying the order of the State Commission in the following manner:- "1. In so far as refund of excess amount charged was concerned, the HUDA shall be entitled to charge simple interest in accordance with in terms and conditions of allotment (without charging any compound interst) and would also be entitled to adjust the amount of interest so calculated, out of the amount already paid accordingly and shall refund the remaining amount. 2. HUDA is liable to pay interest from 1.5.1984 till 5.12.1991 on the amount deposited by the complainant/respondent from the respective dates of deposits @10% p.a. on account of delayed delivery of possession in addition to amount under item 1 above. 3. The complainant/respondent shall also be entitled to get Rs.20,000/- for harassment and mental agony suffered by the complainant/respondent alongwith cost of Rs.2000/-. 4.Order passed by the State Commission on the amount of compensation of Rs. 2 lakh, to meet the cost of escalation, is upheld. 5.HUDA shall execute the conveyance deed within a period of three months from the date of receiving of this order."

Aggrieved by the order of this Commission, HUDA filed special leave petition No. 15689 of 2008 before the Supreme Court which was dismissed vide order dated 3.12.2008.

IT would also appear that the said directions were not realized and, therefore, the complainant has filed an execution application No. 1 of 2006 before the State Commission for enforcement of the order passed by the State Commission, as modified by this Commission. IT is admitted that HUDA had already handed over the possession of the plot in question to the complainant long ago but the grievance of the complainant is that despite the complainant having paid full price of the plot, HUDA has failed to execute the conveyance deed and sanction the building plan for raising construction on the above said plot/land, which amounts to deficiency in service on the part of opposite party resulting into heavy loss and injury to the complainant on account of escalation in the cost of construction which is sought to be claimed in the present complaint. Alongwith the complaint, the complainant has filed the orders passed by the State Commission in earlier complaint case No. 24 of 1995, the order passed by this Commission in F. A. No. 35 of 1999 as also the proceedings in execution application No. 1 of 2006. It may also be mentioned here that before filing the present complaint, the complainant had filed a complaint, which was dismissed as withdrawn vide order dated 9.2.2011 with liberty to the complainant to file fresh complaint on the same cause of action within a period of one month, which was to the following effect:- "Mr. S. M. Suri, learned counsel appearing for the complainant, states that subsequent to the filing of the complaint there has been a change in the circumstances, inasmuch as the complainant has recently received a demand letter from the opposite party- HUDA demanding a sum of Rs.35 lakhs to enable them to sanction the plan. Mr. Suri states that he needs to incorporate the fresh cause of action in the present complaint. However, at this stage, Mr. Suri states that liberty may be granted to him to withdraw the present complaint and to file a new complaint containing all the grievances of the complainant. He also prays that amount of court fee paid in the present complaint may be adjusted in the new complaint, which he proposes to file. Accordingly, the complaint is dismissed as withdrawn with the liberty as aforesaid. The new complaint may be filed within a period of one month from today.

SINCE fresh complaint was not filed within the stipulated period of one month, an application for condonation of delay in filing the complaint has been moved alongwith the present complaint. For the reasons stated in the application, we condone the delay in filing the complaint. Having done so, the crucial question remains to be considered is as to whether any fresh cause of action can be said to have arisen in favour of the complainant for filing the present complaint. In our view, the answer is a big "No" because in the earlier complaint also, the complainant had claimed certain amounts on account of the escalation in the cost of construction of the building over the plot in question. Against that relief, the State Commission had awarded an amount of Rs. 2 lakh which was affirmed by this Commission vide its order dated 30.06.2008. HUDA challenged the said order of this Commission by filing SLP before the Supreme Court, which SLP was dismissed and the order of this Commission was affirmed. This would clearly show that the issue in regard to the loss occasioned to the complainant due to escalation in the cost of construction, was directly and substantially in issue in the earlier complaint and it has been adjudicated upon at the highest level and has attained finality. It appears to us that despite this, the complainant wants to re-agitate the matter by claiming a sum exceeding more than three crores towards the escalation in the cost of construction w.e.f. 1995 to March, 2011. The matter was finally adjudicated upon by the Supreme Court vide order dated 3.12.2008, affirming the award of Rs. 2 lakh as compensation on account of escalation cost and, therefore, it does not lie in the mouth of the complainant to seek the exaggerated relief through this complaint. As regards, the amount of Rs.38,80,090/- demanded by the opposite party to execute the conveyance deed, the same is the subject matter of the execution proceedings before the State Commission as would be manifest from the proceedings dated 5.1.2011, which will be to the following effect:- "Learned counsel for the judgment debtor has placed on record copy of the letter bearing memo No. 18091 dated 25.11.2010 and has stated that sin compliance of the order passed by the Hon"ble National Commission as well as Hon"ble Supreme Court a sum of Rs.3,07,218/- is found refunable against the decree holder. However, after adjustment of this amount a sum of Rs.34,80,090/- is outstanding against the decree holder. In order to know the exact amount due towards the complainant or to be paid by the petitioner, learned counsel for the judgment Debtor-HUDA is directed to place on record calculation/account statement pertaining to the plot of the decree holder/complainant. Adjourned to 2.2.2011 for compliance by the judgment debtor."

Having considered the matter in its entirety, it appears to us that the present complaint before this Commission is nothing but an abuse to the process and jurisdiction of this Commission because we are of the view that the main grievance of the complainant is in regard to the non-enforcement of the order passed by the State Commission/National Consumer Commission/Supreme Court in his earlier complaint, which matter is still pending before the State Commission. In our view, no fresh cause of action has arisen in favour of the complainant entitling him to file the present complaint. The complaint as such is dismissed, however, with liberty to the complainant to pursue his grievance in regard to the enforcement of the order passed on its earlier complaint in execution proceeding pending before the State Commission. Since the execution proceedings are pending before the State Commission for a long time, we direct the State Commission to decide the same expeditiously.