Wednesday, December 25, 2013

Selling of flats - No privity of contract - no deficiency of service- contract between Res. No. 2 and Complainant - Complainant paid amount to Res. 2 - there is no direct contract between Res.1 and complainant - in absence of privity of contract - in the absence of consideration - Res.1 is not liable to refund the amount as the memorandum of agreement was terminated between Res. 2 and Res.1 and as per the termination , the Res.2 has to refund the amount taken from complainants - Res. No.2 not filed any appeal , Res. 1 directed to recover the same from Res. 2 - all revisions are allowed = M/s. Shree Construction Versus 1. Mr. Suryakanth Parshuram Sawant 2. M/s. Vastu Promoters & Consultants … Respondents/Complainants= published in ncdrcrep/judgement/00131202135111612RP2259-258408.htm

Selling of flats - No privity of contract - no deficiency of service- contract between Res. No. 2 and Complainant - Complainant paid amount to Res. 2 - there is no direct contract between Res.1 and complainant - in absence of privity of contract - in the absence of consideration - Res.1 is not liable to refund the amount as the memorandum of agreement was terminated between Res. 2 and Res.1 and as per the termination , the Res.2 has to refund the amount taken from complainants - Res. No.2 not filed any appeal , Res. 1 directed to recover the same from Res. 2 - all revisions are allowed =

Memorandum of Understanding was executed between petitioner and Respondent No. 2 and petitioner appointed Respondent No. 2 as promoter/consultant/sole selling agent for selling the flats, etc.

In paragraph 12 of the MOU, petitioner agreed and assured not to increase the rate of Rs.565/- per sq. ft. built up area.

8. Paragraph 14 of the MOU runs as under:

“14. It is agreed between the parties that the Promoters/Agents are entitled and free to book the said flats as per their sweet will and wish, and at the rate which they may deem fit/desire and in such cases, the Developers are not entitled for any increase etc. on such flats booked by the Promoters/Agents either directly and/or through any other agents. It is further agreed between the parties that the Developers are not entitled to sell/resale the said flats to any other Promoters/Agents/Company/Persons.”

9. Paragraph 14 thus makes it clear that all built up area was to be sold by Respondent No. 2 at any rate which they deem fit and petitioner had no right to sell/resale constructed flats to any other party, meaning thereby, petitioner sold built up area to Respondent No. 2 and in pursuance of this MOU, Respondent No. 2 entered into MOU with Respondent No. 1 for sale of the flat.

Proviso at page 5 of the MOU entered between Respondent No. 1 & Respondent No. 2 runs as under:

“Provided further that upon termination of this Agreement as aforesaid the promoter shall refund to the flat purchaser the inslalments of sale price of the said flat which may till then have been paid by the Flat Purchaser to the Promoter. The promoter shall not be liable to pay to the flat purchaser any interest on the amount so refunded and upon termination of this Agreement and refund of such amount by the promoter, the promoter shall be at liberty to dispose and at such price and on such conditions as the promoter may in their absolute discretion think fit”.

In such circumstances, it cannot be presumed that Respondent No. 2 sold the flats to Respondent no. 1 as agent of petitioner, but it appears that petitioner sold the constructed built up area to Respondent No. 2 who in turn entered into MOU with Respondent No. 1 for sale of flats and in pursuance to that MOU, Respondent No. 2 received money.

Liability to refund the money on termination of the MOU was only of Respondent No. 2 and petitioner was not liable to refund the amount firstly, there was no privity of contract between the petitioner and Respondent No. 1 and secondly, petitioner has not received any amount from the Respondent No. 2, which was collected by him from Respondent No.1.

11. Thus, it becomes clear that Respondent No. 2 has not received money from Respondent no. 1 as agent of petitioner and learned District Forum has committed error in holding petitioner also liable for refund of money and learned State Commission has committed error in dismissing appeal of the petitioner.

12. Respondent No. 2 has not filed any appeal against the order of District Forum and Respondent No. 1 is free to recover the whole amount from Respondent No. 2.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION NO. 2259 OF 2008

(From the order dated 09.01.2008 in First Appeal No. 268 of 2007 @ Misc. Appl. No. 371/2007 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

M/s. Shree Construction

C/o Bharati Industries

Sonapur, LBS Marg,

Mumbai – 400 078 … Petitioner/Opp.Party (OP)

Versus

1. Mr. Suryakanth Parshuram Sawant

D-233, Surya Darshan,

G.D. Ambedkar Marg

Parle, Mumbai – 400 012

2. M/s. Vastu Promoters & Consultants

8/17, Sahyadri Nagar, Charkop

Kandivali (W),

Mumbai – 400 067 … Respondents/Complainants

REVISION PETITION NO. 2447 OF 2008

(From the order dated 09.01.2008 in First Appeal No. 274 of 2007 @ Misc. Appl. No. 377/2007 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

M/s. Shree Construction

C/o Bharati Industries

Sonapur, LBS Marg,

Mumbai – 400 012 … Petitioner/Opp.Party (OP)

Versus

1. Smt. Yogeeta Yashpal Vijan

Building No. 20, Flat No. 318,

M.H. Road, Sardar Nagar – 4,

Antup Hill,

Mumbai – 400 012

2. M/s. Vastu Promoters & Consultants

8/17, Sahyadri Nagar, Charkop

Kandivali (W),

Mumbai – 400 067 … Respondents/Complainants

REVISION PETITION NO. 2448 OF 2008

(From the order dated 09.01.2008 in First Appeal No. 273 of 2007 @ Misc. Appl. No. 376/2007 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

M/s. Shree Construction

C/o Bharati Industries

Sonapur, LBS Marg,

Mumbai– 400 012 … Petitioner/Opp.Party (OP)

Versus

1. Mr. Kantilal Ambalal Thakr

24/402, Telang Road

Agarwal Niwas, 2^nd Floor,

Matunga, Mumbai – 400 019

2. M/s. Vastu Promoters & Consultants

8/17, Sahyadri Nagar, Charkop

Kandivali (W),

Mumbai – 400 067 … Respondents/Complainants

REVISION PETITION NO. 2449 OF 2008

(From the order dated 09.01.2008 in First Appeal No. 272 of 2007 @ Misc. Appl. No. 375/2007 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

M/s. Shree Construction

C/o Bharati Industries

Sonapur, LBS Marg,

Mumbai– 400 012 … Petitioner/Opp.Party (OP)

Versus

1. Smt. Rekha Ramesh Gawad

B-305, Sudha Palace,

Near Chate Classes,

Viratnagar, Virar,

Mumbai – 401 303

2. M/s. Vastu Promoters & Consultants

8/17, Sahyadri Nagar, Charkop

Kandivali (W),

Mumbai – 400 067 … Respondents/Complainants

REVISION PETITION NO. 2581 OF 2008

(From the order dated 09.01.2008 in First Appeal No. 267 of 2007 @ Misc. Appl. No. 370/2007of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

M/s. Shree Construction

C/o Bharati Industries

Sonapur, LBS Marg,

Mumbai – 400 012 … Petitioner/Opp.Party (OP)

Versus

1. Mr. Milind N. Deshmukh

Shivkrupa

C/o Deshmukh Oil Mills,

Ketan Nagar, Margarule Road

Mumbai – 400 012

2. M/s. Vastu Promoters & Consultants

8/17, Sahyadri Nagar, Charkop

Kandivali (W),

Mumbai – 400 067 … Respondents/Complainants

REVISION PETITION NO. 2582 OF 2008

(From the order dated 09.01.2008 in First Appeal No. 269 of 2007 @ Misc. Appl. No. 372/2007 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

M/s. Shree Construction

C/o Bharati Industries

Sonapur, LBS Marg,

Mumbai– 400 012 … Petitioner/Opp.Party (OP)

Versus

1. Mr. Arun Balkrishna Narvankar

9A, Narmada Niwas, First Floor,

J.K. Sawant Road, Dadar (W),

Mumbai – 400 028

2. M/s. Vastu Promoters & Consultants

8/17, Sahyadri Nagar, Charkop

Kandivali (W),

Mumbai – 400 067 … Respondents/Complainants

REVISION PETITION NO. 2583 OF 2008

(From the order dated 09.01.2008 in First Appeal No. 270 of 2007 @ Misc. Appl. No. 373/2007 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

M/s. Shree Construction

C/o Bharati Industries

Sonapur, LBS Marg,

Mumbai– 400 012 … Petitioner/Opp.Party (OP)

Versus

1. Mr. Arun Sitaram Kushe

111, 2/5, MESB Quarters (Staff)

Inside National Park, Borivali (E)

Mumbai – 400 066

2. M/s. Vastu Promoters & Consultants

8/17, Sahyadri Nagar, Charkop

Kandivali (W),

Mumbai – 400 067 … Respondents/Complainants

REVISION PETITION NO. 2584 OF 2008

(From the order dated 09.01.2008 in First Appeal No. 271 of 2007 @ Misc. Appl. No. 374/2007 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

M/s. Shree Construction

C/o Bharati Industries

Sonapur, LBS Marg,

Mumbai– 400 012 … Petitioner/Opp.Party (OP)

Versus

1. Mr. Rajen Chandulal Shah

217/A, I – Karol , 27^th Road

TPS (E), Bandra (E)

Mumbai – 400 050

2. M/s. Vastu Promoters & Consultants

8/17, Sahyadri Nagar, Charkop

Kandivali (W),

Mumbai – 400 067 … Respondents/Complainants

BEFORE:

HON'BLE MR. JUSTICE K. S. CHAUDHARI, PRESIDING MEMBER

HON’BLE DR. B C. GUPTA, MEMBER

For the Petitioner : MR. Anand Padmanabhan &

Mr. Mohd. Wasay Khan, Advocates

For the Respondents No. 1 : Mr. Arun S. Kushe, in person in RP

No. 2583/2008 and AR of other

Respondents No. 1

For the Respondents No. 2 : Ex parte

PRONOUNCED ON 2^nd December, 2013

O R D E R

PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

All these revisions arise out of separate judgments dated 9.1.2008 in appeals filed against judgments of the District Forum. Accordingly, the revisions were heard together and are being disposed of by common order.

These revision petitions have been filed by the petitioner against the orders dated 9.1.2008 passed by Maharashtra State Consumer Disputes RedressalCommission, Circuit Bench at Aurangabad (in short, ‘the State Commission’) in Appeal Nos. 2259/08, 2447-2449/08 & 2581/08 to 2584/08 – M/s. Shree Construction Vs. Suryakant Parshuruam Sawant & Anr., M/s. Shree Construction Vs. Smt. Yogeeta Yashpal Vijan & Anr., M/s. Shree Construction Vs. KantilalAmbalal Thakur & Anr., M/s. Shree Construction Vs. Smt. Rekha Ramesh Gawad & Anr., M/s. Shree Construction Vs. Milind N. Deshmukh & Anr., M/s. Shree Construction Vs. Arun Balkrishna Narvankar & Anr., M/s. Shree Construction Vs. Arun Sitaram Kushe & Anr. & M/s. Shree Construction Vs. Rajen ChandulalShah & Anr. by which, while dismissing appeals, order of District Forum allowing complaints were upheld.

2. Brief facts of the case are that complainant/Respondent entered into an agreement with OP No. 1/Respondent No. 2 for purchase of residential accommodation in proposed “Grahashanti Apartment” for which, OP No. 1 had paid Rs.6,64,600/- to OP No. 2. Complainant was informed that construction will start on 10.6.1992 and will be ready for possession before 31.12.1993. It was further alleged that OP Nos. 1 & 2 entered into Memorandum of Understanding (MOU) in June, 1992 and OP No. 1 was referred as sole selling agent for selling flats, shops, etc. to be constructed on the property. It was further alleged that till today, no construction has been made. Alleging deficiency on the part of OP, complainants filed separate complaints before District Forum. OP No. 1 resisted complaint and submitted that Mr. Balu Sadashiv Narkhede was one of the partners of OP No. 1, who illegally entered into transaction which is not binding on OP No. 1. It was further submitted that OP No. 1 paid Rs.6,64,600/- to OP No. 2 and in such circumstances, onus was entirely on the OP No. 2 to carry out construction or to give compensation to the purchasers and prayed for dismissal of complaints. OP No. 2 also filed written statement, denied receipt of Rs.6,64,600/- from OP No. 1 and denied other allegations and further submitted that complaint was barred by limitation and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OPs to refund the amount jointly and severally with interest @ 12% p.a. and further imposed cost and compensation. Appeals filed by the appellant were dismissed by learned State Commission vide impugned orders against which, these revision petitions have been filed.

3. None appeared for the Respondent No. 2 even after service.

4. Heard learned Counsel for the petitioner and respondent No. 1 and his representative and perused record.

5. Learned Counsel for the petitioner submitted that there was no privity of contract between the petitioner and Respondent No. 1 and petitioner has not received any amount from respondent even then learned District Forum has committed error in allowing refund of the amount and learned State Commission further committed error in dismissing appeals; hence, revision petitions be allowed. On the other hand, authorized representative of the respondents submitted that order passed by the State Commission is in accordance with law; hence, revision petition be dismissed.

6. Perusal of impugned order reveals that order of District Forum was upheld as Respondent No. 2 was sole selling agent of the petitioner and respondent No. 2 received payment from Respondent No. 1; so, petitioner was bound to refund the money. It was further observed that ‘The Site Worship Ceremony’ invitation was extended jointly by petitioner and Respondent No. 2; so, both are liable to refund the amount.

7. Perusal of record reveals that Memorandum of Understanding was executed between petitioner and Respondent No. 2 and petitioner appointed Respondent No. 2 as promoter/consultant/sole selling agent for selling the flats, etc. In paragraph 12 of the MOU, petitioner agreed and assured not to increase the rate of Rs.565/- per sq. ft. built up area.

8. Paragraph 14 of the MOU runs as under:

10. Thus, proviso makes it crystal clear that on the termination of the agreement, Respondent No. 2 was liable to refund the amount received from Respondent No. 1 without interest and nowhere liability has been fastened on the petitioner to refund the amount received by Respondent No. 2 from Respondent No. 1. In such circumstances, it cannot be presumed that Respondent No. 2 sold the flats to Respondent no. 1 as agent of petitioner, but it appears that petitioner sold the constructed built up area to Respondent No. 2 who in turn entered into MOU with Respondent No. 1 for sale of flats and in pursuance to that MOU, Respondent No. 2 received money. Liability to refund the money on termination of the MOU was only of Respondent No. 2 and petitioner was not liable to refund the amount firstly, there was no privity of contract between the petitioner and Respondent No. 1 and secondly, petitioner has not received any amount from the Respondent No. 2, which was collected by him from Respondent No.1.

12. Respondent No. 2 has not filed any appeal against the order of District Forum and Respondent No. 1 is free to recover the whole amount from Respondent No. 2.

13. Consequently, revision petitions filed by the petitioner are allowed and impugned orders dated 9.1.2008 passed by learned State Commission in Appeal Nos. 2259/08, 2447-2449/08 & 2581/08 to 2584/08 – M/s. Shree Construction Vs. Suryakant Parshuruam Sawant & Anr., M/s. Shree Construction Vs. Smt. Yogeeta Yashpal Vijan & Anr., M/s. Shree Construction Vs. Kantilal Ambalal Thakur & Anr., M/s. Shree Construction Vs. Smt. Rekha Ramesh Gawad &Anr., M/s. Shree Construction Vs. Milind N. Deshmukh & Anr., M/s. Shree Construction Vs. Arun Balkrishna Narvankar & Anr., M/s. Shree Construction Vs. ArunSitaram Kushe & Anr. & M/s. Shree Construction Vs. Rajen Chandulal Shah & Anr. and order of District Forum to the extent allowing complaints against petitioner are set aside. There shall be no order as to costs.

..……………Sd/-……..………

(K. S. CHAUDHARI, J)

PRESIDING MEMBER

……………Sd/-….……………

(DR. B. C. GUPTA)

MEMBER

Friday, November 15, 2013

Sec.25,26 and 27 of Consumer Act = Builder failed to provide amenities , Club House etc., and made constructions against the rules of Municipal Nagara Palika - Deficiency in service - consent decree to pay interest on failure to full fill obligations - Executions filed - Appeal lies but not revision - On merits also the builder is at deficiency of service = M/s. Sunny Brooks -vs - Aparajitha Bhandary = published in http://164.100.72.12/ncdrcrep/judgement/0013111410493830RP386238762010.htm

Sec.25,26 and 27 of Consumer Act = Builder failed to provide amenities , Club House etc., and made constructions against the rules of Municipal Nagara Palika - Deficiency in service - consent decree to pay interest on failure to full fill obligations - Executions filed - Appeal lies but not revision - On merits also the builder is at deficiency of service =

The State Commission vide consent order dated 5.11.2007, directed the petitioner to comply with clause 14 of the agreement within 3 months, failing which the petitioner shall be liable to pay interest @ 12% p.a. on the amount paid by the respondents from the date of order till realization.

5. Thereafter, respondents filed execution petitions before the State Commission and certain execution petitions were filed before the District Forum which were ultimately transferred to the State Commission and clubbed together.

Petitioner filed objections to the execution petition contended that it has discharged all its obligations by providing civic amenities and club house.

Therefore, it is not liable to pay interest as claimed by the respondents. =

Section 25, 27 and 27A of the Act read as under;

“Sec.25. Enforcement of orders of the District Forum, the State Commission or the National Commission

(1) Where an interim order made under this Act, is not complied with the District Forum or the State Commission or the National Commission, as the case may be, may order the property of the person, not complying with such order to be attached.

(2) No attachment made under sub-section (1) shall remain in force for more than three months at the end of which, if the non-compliance continues, the property attached may be sold and out of the proceeds thereof, the District Forum or the State Commission or the National Commission may award such damages as it thinks fit to the complainant and shall pay the balance, if any, to the party entitled thereto.

(3) Where any amount is due from any person under an order made by a District Forum, State Commission or the National Commission, as the case may be, the person entitled to the amount may make an application to the District Forum, the State Commission or the National Commission, as the case may be, and such District Forum or the State Commission or the National Commission may issue a certificate for the said amount to the Collector of the district (by whatever name called) and the Collector shall proceed to recover the amount in the same manner as arrears of land revenue.

Sec.27. Penalties

(1) 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 thousands rupees but which may extend to ten thousand rupees, or with both:

(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974), the District Forum or the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of the first class for the trial of offences under this Act, and on such conferment of powers, the District Forum or the State Commission or the National Commission, as the case may be, on whom the powers are so conferred, shall be deemed to be a Judicial Magistrate of the first class for the purpose of the Code of Criminal Procedure, 1973 (2 of 1974).

(3) All offences under this Act may be tried summarily by the District Forum or the State Commission or the National Commission, as the case may be.

Sec.27A Appeal against order passed under

Section 27

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an appeal under section 27, both on facts and on law, shall lie from -

(a) the order made by the District Forum to the State Commission;

(b) the order made by the State Commission to the National Commission; and

(c) the order made by the National Commission to the Supreme Court.

(2) Except as aforesaid, no appeal shall lie to any court from any order of a District Forum or a State Commission or the National Commission.

(3) Every appeal under this section shall be preferred within a period of thirty days from the date of an order of a District Forum or a State Commission or, as the case may be, the National Commission :

Provided that the State Commission or the National Commission or the Supreme Court, as the case may be, may entertain an appeal after the expiry of the said period of thirty days, if, it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days.”

11. Section 25 and 27 of the Act have been enacted for speedy enforcement of the orders of the District Forum, the State Commission or the National Commission, as the case may be. These sections are in the nature of execution proceedings of the orders made by the three Redressal Agencies. While Section 25 of the Act visualizes the enforcement of such orders by a civil process, as if they were a decree or order made by a Court of law, whereas, Section 27 of the Act confers a quasi-criminal sanction for their enforcement by way of punishment with imprisonment or imposition of monetary penalties.

12. Since, the impugned order of the State Commission has been passed in the execution proceedings under Section 25 and 27 of the Act, only appeal lies against such order under Section 27A of the Act.

13. When an equally efficacious remedy has been provided by way of appeal against the impugned order, the present revision petitions under such circumstances are not maintainable. Hence, these petitions are liable to be dismissed on this short ground.

14. Even on merits, petitioner has no case at all for the reasons mentioned hereunder.

15. As apparent from the record, it is quite clear that order dated 5.11.2007 passed by the State Commission has become final as no revision was filed against that order. Now in the execution proceedings, petitioner /J.D. cannot be permitted to challenge the same and introduce any new case.

16. It is well settled that the executing court cannot go behind the decree. Order dated 5.11.2007 passed by the State Commission was a consent order and the same has attained finality. Be that as it may, petitioner in its objections dated 25.7.2008 filed in response to the Execution Petition of the Respondents/Decree Holder has categorically stated that;

“It is pertinent to state here that except the facility of the Club House, all other civic amenities have been provided and there is no deficiency of service in providing the civic amenities.”

17. Thus, as per petitioner’s own case it did not provide the Club House which it was bound to provide within the specified period as per terms of the conditions of the agreement. However, on 26^thFebruary, 2013 learned counsel for the petitioner on instructions stated before this Commission that Club House, Swimming Pool and Badminton Court have been duly constructed and sought time to file affidavit, photographs and the completion certificate. Accordingly, 6 weeks time was granted. Though petitioner had filed an affidavit, but no completion certificate to this effect has been filed till date. However, as per information dated 12.7.2013, obtained under the Right to Information Act from Bangalore Mahanagar Palika placed on record by the respondents, it is manifestly clear that; “As per the sanctioned plan, building is not constructed, the Swimming Pool is unauthorisedly constructed”.

18. Further, as per provisional order dated 1.6.2013, issued under Section 321(1) of the Karnataka Municipal Corporation Act, 1976, it has been confirmed that; “Commercial building is found to have been constructed against the Karnataka Municipal Corporation Act, 1976 and rules and byelaws”.

19. Since, petitioner has so far not complied with the order dated 5.11.2007 passed by the State Commission, hence the present revision petitions have no merit and are legally not sustainable. These petitions are nothing but gross abuse of the process of law and are totally frivolous. Consequently, we dismiss all the above noted revision petitions.

20. No order as to cost.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

(1) REVISION PETITION NO.3862 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 192 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

1. Aparajitha Bhandary

2. Sudnya Shenava

Both R/o No.189,

Amarjyoti Layout, Domlur,

Ring Road,

Bangalore - 560 071 …..Respondents

(2) REVISION PETITION NO.3863 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 193 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

Anusuya Y.M.

D/o Y.B. Mathumani,

No.79/8F, Sunny Brooks,

Sarjapur Road,

Bangalore 0- 560 035 …..Respondent

(3) REVISION PETITION NO.3864 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 194 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

Anitha R. Shetty

W/o Dr. S.R. Shetty

No.186, Amarjyothi Layout,

Domlur, Bangalore …..Respondent

(4) REVISION PETITION NO.3865 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 195 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

Paul Christdas Salins

W/o Dr. S.R. Shetty

No.186, Amarjyothi Layout,

Domlur, Bangalore …..Respondent

(5) REVISION PETITION NO.3866 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 196 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

1. Sushil Eapen

2. Rekha Eapen,

W/o Sushil Eapen

Both R/o No.78-D,

Sunny Brooks,

Sarjapur Road,

Bangalore - 560 035 …..Respondents

(6) REVISION PETITION NO.3867 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 197 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

Cyril Zachariah

S/o Eapen Zachariah,

R/o No.79/4, Sunny Brooks,

Sarjapur Road,

Bangalore - 560 035 …..Respondent

(7) REVISION PETITION NO.3868 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 198 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

1. Geniuneness V.C. Jain

2. Manju Jain,

W/o Geniuneness V.C. Jain

Both residing at No.C-9,

Inderpuri,

New Delhi – 110 012 …..Respondents

(8) REVISION PETITION NO.3869 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 199 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

Sameer Gupta,

S/o Col. N.N. Gupta,

No.734, 8^th B Main,

4^th Block, Koramangala,

Bangalore 0 560 034. …..Respondent

(9) REVISION PETITION NO.3870 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 200 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

1. Capt. Pal Pradeep

2. Deepa Lal, W/o Capt. Pal Pradeep,

Both are R/o No.201-B,

Versova, Four Bunglow Road,

Andheri West, Mumbai …..Respondents

(10) REVISION PETITION NO.3871 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 201 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

Manoj Lal

S/o Mr. Ratan Lal

R/o C-9, Indar Puri,

New Delhi …..Respondent

(11) REVISION PETITION NO.3872 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 202 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

Rakesh Goel,

S/o Mr. S.M. Goel,

R/at T.U. 26,

Pitampura,

New Delhi - 110 034. …..Respondent

(12) REVISION PETITION NO.3873 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 203 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

Rajat Gupta

R/o No.604, 2^nd Cross,

3^rd Block, Karamangala,

Bangalore – 560 071 …..Respondent

(13) REVISION PETITION NO.3874 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 204 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

1. Sanjay Jalona

2. Parul Jalona

Both are R/o No.869,

12^th Main, 3^rd Block,

Karamangala,

Bangalore – 560 034. …..Respondents

(14) REVISION PETITION NO.3875 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 205 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

1. Capt Pradeep Lal

2. Mona Lal,

Both are R/o No.869,

12^th Main, 3^rd Block,

Karamangala,

Bangalore – 560 034. …..Respondents

(15) REVISION PETITION NO.3876 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 206 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

Asha L. Shetty

W/o Mr. Leeladhar Shetty

No.318, 4^th Block

7^th B Main,

Koramangala

Bangalore – 560 034 …..Respondent

BEFORE:

HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER

HON'BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner : Mr. S.C. Maheshwari, Senior

Advocate with Mr. Bikas

Kar Gupta and Mr. B.M. Sudesh, Advocates

For the Respondents

in 3863,3865, 3866 &

3867 of 2010 : Mr. John Mathew, Advocate

Mr. Kapil Kher, Advocate

with Mr. Ankur Bansal

Advocate for R-6,8,9,10,11 &12

Mr. Anil Mishra, Advocate

for R-1,2 and 19

Pronounced on: 13^th November, 2013

ORDER

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

Present revision petitions have been filed by the Petitioner/Opposite Party challenging impugned order dated 16.7.2010, passed by Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short, ‘State Commission’) in Appeal Nos.192 to 206 of 2010.

2. Brief facts are that respondents/complainants filed consumer complaints before the District Forum, Bangalore. The complaints were contested by the petitioner.

District Forum after hearing the parties, allowed the complaints vide order dated 9.1.2007 and directed the petitioners to provide the amenities as promised under the agreement within 3 months from the date of communication of the said order.

3. Being not satisfied with the order of the District Forum, respondents/complainants filed appeals before the State Commission seeking direction to pay interest as per the terms of the agreement.

4. The State Commission vide consent order dated 5.11.2007, directed the petitioner to comply with clause 14 of the agreement within 3 months, failing which the petitioner shall be liable to pay interest @ 12% p.a. on the amount paid by the respondents from the date of order till realization.

Petitioner filed objections to the execution petition contended that it has discharged all its obligations by providing civic amenities and club house.

Therefore, it is not liable to pay interest as claimed by the respondents.

6. Thereafter, District Forum on the basis of interim application (IA) filed by the respondents appointed a Court Commissioner to conduct the local investigation of the layout and directed the said Commissioner to submit his report as to whether petitioner has carried out the directions issued by the State Commission, vide its order dated 5.11.2007. Accordingly, the Court Commissioner submitted his report. Thereafter, District Forum passed order dated 2.12.2009 in the execution proceedings in which it was held ;

“In view of the forth going reasons, we are of the view that OP/JDR has not complied with the orders of the Hon'ble State Commission as such JDR is liable to pay interest at 12% p.a. on the amounts paid by the complainants from the date of order of the State Commission, till realization. Accordingly, we proceed to pass the following:

ORDER

OP/JDR is directed to pay interest @ 12 % p.a. on the amounts paid by the complainants/JDR from the date of order till realization in compliance of the order of theHon'ble State Commission dated 5.11.2007.”

7. Above order of the District Forum was challenged by the petitioner before the State Commission, Bangalore, which dismissed its appeal vide impugned order, observing as under;

“We have gone through the appeal memorandum filed by the appellant/ JDR and also we have given our anxious consideration to the arguments advanced by both the counsel for the parties. The point now that arises for our consideration is that whether the District Forum direction to the appellant/JDR to pay interest @ 12% per annum is correct or not?

As stated earlier we have gone through the documents and appreciate the said documentary evidence placed on record by both the parties which includes the photographs produced by both the parties and also the report of the Commissioner.

The counsel for the appellant /JDR argued that the Court Commissioner appointed by the District Forum is not a qualified person to inspect and submit the report. When the Court Commissioner has been appointed with the consent of both the parties, at this stage, it is not proper to contend by the appellant that the Court Commissioner is not an expert to submit such a report.

The photographs itself clearly indicates that the roads are very zigzag, narrow and the width of the road is less than 30 ft. which is visible to the naked eye. The appellants have not seriously disputed about the said facts. Therefore, we do not find any perverse or illegality in the orders passed by the District Forum in the execution side.

Though, this Commission passed the order on 5.11.2007 granting three months’ time to the appellant to provide the amenities as agreed between the parties, within three months, the appellant protract to provide the civic amenities have not fully complied. After having heard both the parties in detail and also on consideration of the impugned order passed by the District Forum in the execution, we are of the view that there is no merit in these appeals and the same are liable to be set aside. Accordingly, we pass the following:

ORDER

Appeals are dismissed. The parties are directed to bear their own costs.

The amount deposited by the appellant/OP in these appeals shall be transferred to the District Forum enabling the District Forum to pay the same to the complainants after due notice to them.”

8. Hence, these revision petitions.

9. We have heard the learned counsel for both the parties. Both parties have filed written submissions also. We have gone through the same.

10. At the outset, we may point out that no revision petition in the present circumstances lies, since impugned order was passed in the execution proceedings which were initiated under Section 25 and 27 of the Consumer Protection Act, 1986 (for short as’Act’).

Section 25, 27 and 27A of the Act read as under;

“Sec.25. Enforcement of orders of the District Forum, the State Commission or the National Commission

Sec.27. Penalties

(3) All offences under this Act may be tried summarily by the District Forum or the State Commission or the National Commission, as the case may be.

Sec.27A Appeal against order passed under

Section 27

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an appeal under section 27, both on facts and on law, shall lie from -

(a) the order made by the District Forum to the State Commission;

(b) the order made by the State Commission to the National Commission; and

(c) the order made by the National Commission to the Supreme Court.

(2) Except as aforesaid, no appeal shall lie to any court from any order of a District Forum or a State Commission or the National Commission.

14. Even on merits, petitioner has no case at all for the reasons mentioned hereunder.

“It is pertinent to state here that except the facility of the Club House, all other civic amenities have been provided and there is no deficiency of service in providing the civic amenities.”

20. No order as to cost.

…………………………………….J

(V.B. GUPTA)

PRESIDING MEMBER

……………………………………………

(REKHA GUPTA)

MEMBER

Sg.

WELFARE OF CONSUMERS

About Me

Wednesday, December 25, 2013

REVISION PETITION NO. 2259 OF 2008

REVISION PETITION NO. 2447 OF 2008

REVISION PETITION NO. 2448 OF 2008

REVISION PETITION NO. 2449 OF 2008

REVISION PETITION NO. 2581 OF 2008

REVISION PETITION NO. 2582 OF 2008

REVISION PETITION NO. 2583 OF 2008

REVISION PETITION NO. 2584 OF 2008

HON’BLE DR. B C. GUPTA, MEMBER

O R D E R

Friday, November 15, 2013

(1) REVISION PETITION NO.3862 OF 2010

(2) REVISION PETITION NO.3863 OF 2010

(3) REVISION PETITION NO.3864 OF 2010

(4) REVISION PETITION NO.3865 OF 2010

(5) REVISION PETITION NO.3866 OF 2010

(6) REVISION PETITION NO.3867 OF 2010

(7) REVISION PETITION NO.3868 OF 2010

(8) REVISION PETITION NO.3869 OF 2010

(9) REVISION PETITION NO.3870 OF 2010

(10) REVISION PETITION NO.3871 OF 2010

(11) REVISION PETITION NO.3872 OF 2010

(12) REVISION PETITION NO.3873 OF 2010

(13) REVISION PETITION NO.3874 OF 2010

(14) REVISION PETITION NO.3875 OF 2010

(15) REVISION PETITION NO.3876 OF 2010