V.P.BALASUBRAMANIAM vs J AIANJANEY A ASSOCIATES

THE complainant is one Mr. V.P. Balasubramaniam.

THE 1st opposite party-Ms. Suprabha is a promoter and developer of flats. THE 2nd opposite party Mr. A.D. Vasudevan is her power agent. The complainant, it appears, entered into an agreement for sale with the opposite parties on 7.2.1996 for purchase of l/6th undivided share of their land and construction of a residential flat of an extent of 700 sq. ft. over the same.

The opposite parties, it is said, received a consideration of Rs. 5,00,000/- any they ought to have delivered possession of the flat on or before 31.8.1996. They, it appears, failed to do so in spite of several demands emanating from the complainant.

THE complainant also, it is said, issued a legal notice dated 24.3.1997 calling upon the opposite parties either to deliver the flat or to refund the said amount of Rs. 5,50,000/- with interest thereon at 24% per annum from 1.9.1996. The opposite parties, it appears, sent an evasive reply.

CONSEQUENTLY the complainant knocked at the doors of this Commission alleging deficiency in service on the part of the opposite parties and praying for appropriate reliefs as prayed for in the complaint. The opposite parties contested the matter before this Commission and according to them there was no deficiency in service on their part and consequently the complaint is liable to be dismissed. This Commission, after taking into consideration the materials placed on record, ultimately passed an order on 6th January, 1999 directing the opposite parties to pay the said sum of Rs. 5,50,000/- with interest thereon at 24% per annum from 1.9.1996 till payment and also to pay a sum of Rs. 2,000/- as cost of these proceedings. This Commission further issued a direction that the said order of this Commission must have to be complied with within three months from the date of its order.

THE complainant filed E.P. No. 14/99 under Section 27 of the Consumer Protection Act, 1986 (for short, "the Act") for punishing the opposite parties for non-compliance with the order of this Commission.

IN the E.P. filed before this Commission, process had been issued and served on the opposite parties and the opposite parties also entered appearance through Counsel of their choice viz., M/s. P.B. Ramanujam, P.B. Balaji and K. Ganesan. The opposite parties in fact filed a counter to the proceedings in the E.P. stating that as against the order of this Commission in O.P. No. 103/97 they have preferred an appeal before the National Commission which was said to have been taken on its file as F.A. No. 11172/99. They would further state that they had instructed their Counsel at Delhi to file an application for stay and nothing is discernible as to whether the said Counsel filed an application for stay before the National Commission and the same is pending.

When this matter came up for hearing to-day, the complainant Mr. V.P. Balasubramaniam represented before us that their learned Counsel Mr. V.S. Chandrasekaran is unable to be present before this Commission today in view of his other compelling engagements and in such a situation, he would submit that on that ground the matter need not be adjourned and he will be in a position to make his submissions. This sort of a request as prayed for by the complainant has been granted by us.

ARGUMENTS of Mr. V.P. Bala- subramaniam, the complainant and learned Counsel Mr. K. Ganesan appearing for the opposite parties were heard. Admittedly, this Commission passed the final order in O.P. No. 103/ 97 on 6th January, 1999 and the time that had been granted to the opposite parties for compliance with the order was three months from the date of the order of this Commission which event was to happen on 5th April, 1999. Till today the order of this Commission had not been complied with. It has been stated in a bald but a bold way in the counter filed by the opposite parties that they in fact filed an appeal against the final order of this Commission and no mention had been made as to the date on which the appeal had been filed. We are not in a position to understand whether the said appeal stated to have been filed had been filed within the time or in a belated fashion with a petition for excusing the delay and the appeal was taken on file after excusing the delay. What is further worse is, it is also stated in the counter that the opposite parties have instructed their Counsel in Delhi to file an application before the National Commission for stay of the order of this Commission. The counter affidavit had been filed by them on 13th January, 2000 as revealed by the seal affixed thereto. Nothing is known until this day as to whether the stay petition as had been stated in the counter had been really filed before the National Commission. As such, the fact remains that till today there is no order of stay by the National Commission.

THE complainant has parted with a huge sum of Rs. 5,50,000/- to the opposite parties for purchase of l/6th undivided share of land and construction of a residential flat of an extent of 700 sq. ft. over the same. Neither the flat was constructed nor possession of the same was handed over to the complainant, nor the amount of Rs. 5,50,000/- ordered to be refunded by the opposite parties to the complainant with 24% interest per annum besides a cost of Rs. 2,000/- had been paid notwithstanding the fact that more than three months elapsed from the date of order of this Commission. For the non-compliance of orders of the ForA constituted under the Act, action can be resorted to by way of execution proceedings either under Section 25 or 27 of the Act. In the case on hand, as already stated, the E.P. has been filed under Section 27 of the Act which reads as under: "27. Penalties. - Where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person or complainant shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees, or with both : Provided that the District Forum, the State Commission or the National Commission, as the case may be, may if it is satisfied that the circumstances of any case so require, impose a sentence of imprisonment or fine, or both, for a term lesser than the minimum term and the amount lesser than the minimum amount, specified in this section."

A cursory perusal of or glance of the provisions as extracted above, makes it crystal clear that this Commission is empowered to punish the offending opposite parties for either the non- compliance or even for the belated compliance of the order. We want to make it clear, if an order is belatedly complied with, the offending opposite parties are to be visited with appropriate punishment as prescribed thereunder. The section prescribes a maximum punishment of imprisonment of three years and a fine of Rs. 10,000/-. The minimum punishment of imprisonment that could be awarded under the said section is one month and the minimum amount of fine that could be imposed is Rs. 2,000/-. Further, so much power is there under (his section for the imposition of imprisonment or fine or with both. There is also power to the F0RA constituted under the Act to impose a sentence of imprisonment or fine or both for a term lesser than the minimum term and the amount of fine lesser than the minimum amount specified in the said section. Section 27 had been inserted in the Act with an avowed purpose of seeing that the order of the ForA constituted under the Act should not remain as a paper tiger order just like the orders of the Civil Court pending for execution for decades and decades and the orders passed under the Act by the ForA constituted thereunder must have to be complied with within a time frame or schedule. That perhaps was the reason that apart from inserting Section 25 which is in the nature of execution proceedings undertaken before Civil Courts, Section 27 has been enacted with a rigorous penal consequence to be visited upon the offending parties for the non-compliance of the orders passed by the various ForA constituted under the Act.

ON the facts and circumstances of the case, de hors sex and status of the parties, we rather feel that the opposite parties are to be visited with penal consequences by the imposition of maximum sentence of imprisonment as well as maximum fine prescribed thereunder. We are, however, not inclined to do so. The reason is this. The 1st opposite party builder is one Ms. Suprabha, a lady and the 2nd opposite party is after all her agent. Taking such aspects of the matter, we rather feel that a sentence of imprisonment of six months and a fine of Rs. 5,000/ -, if imposed on each of the opposite parties, the ends of justice would be squarely met with, and we accordingly do so.

THIS E.P. is thus disposed of. There shall, however, be no order as to costs on the facts and circumstances of the case. E.P. disposed of.