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2004 DIGILAW 1507 (SC)

GHAZIABAD DEVELOPMENT AUTHORITY v. URMILA

2004-10-25

C.K.THAKKER, RUMA PAL

body2004
ORDER 1. LEAVE GRANTED. 2. THIS APPEAL HAS BEEN PREFERRED FROM THE ORDER PASSED BY THE NATIONAL COMMISSION IN EFFECT AND SUBSTANTIALLY REJECTING THE REVISION APPLICATION OF THE APPELLANT AGAINST AN ORDER PASSED BY THE DISTRICT FORUM IN EXECUTION OF AN EARLIER ORDER. 3. THE DISPUTE BETWEEN THE PARTIES RELATES TO THE ALLOTMENT OF A FLAT BY THE APPELLANT TO THE RESPONDENT. ACCORDING TO THE APPELLANT, THE POSSESSION COULD NOT BE GIVEN BECAUSE IT WAS PROHIBITED BY AN INJUNCTION ORDER FROM MAKING ANY CONSTRUCTION ON THE LAND IN QUESTION IN PROCEEDINGS INITIATED BY THE OWNERS OF THE LAND. IT IS STATED THAT AFTER THE INJUNCTION ORDER WAS VACATED THE CONSTRUCTION WAS MADE AND ALLOTMENT MADE TO THE RESPONDENT. IT IS THE APPELLANTS FURTHER CASE THAT BY THE TIME SUCH ALLOTMENT COULD BE MADE THE PRICE OF THE FLAT HAD INCREASED. ACCORDINGLY, A DEMAND WAS RAISED ON THE RESPONDENT BY THE APPELLANT FOR THE DIFFERENTIAL AMOUNT IN THE PRICE. THE RESPONDENT TOOK POSSESSION OF THE FLAT BUT FILED A COMPLAINT BEFORE THE DISTRICT FORUM UNDER THE CONSUMER PROTECTION ACT, 1986 ALLEGING, INTER ALIA, THAT THE RESPONDENT WAS NOT LIABLE TO PAY THE INCREASED COST, THAT THE APPELLANT WAS LIABLE TO PAY INTEREST TO THE RESPONDENT ON THE AMOUNT DEPOSITED, CLAIMING COMPENSATION FOR MENTAL AGONY AND COSTS OF LITIGATION AND FINALLY CLAIMING COSTS ON ACCOUNT OF ALLEGED DEFECTS IN THE FLAT HANDED OVER BY THE APPELLANT TO THE RESPONDENT. 4. 4. THE DISTRICT FORUM PASSED AN ORDER ON 20-1-1999 DIRECTING: (I) THE APPELLANT TO PAY INTEREST ON THE AMOUNT DEPOSITED BY THE RESPONDENT WITH THE APPELLANT FOR THE PERIOD FROM 1-4-1995 UP TO 6-9-1996, (II) THE APPELLANT TO PAY A SUM OF RS 4000 TOWARDS MENTAL AGONY AND COSTS OF LITIGATION, (III) IN DEFAULT OF COMPLYING WITH CLAUSES (I) AND (II) ABOVE, THE APPELLANT TO PAY INTEREST AT THE RATE OF 18% PER ANNUM, (IV) IF ANY AMOUNT WAS OUTSTANDING AGAINST THE RESPONDENT IN RESPECT OF THE FLAT, THE APPELLANT WOULD BE ENTITLED TO ADJUST THAT AMOUNT AGAINST THE INTEREST AND COMPENSATION PAYABLE BY IT, AND D (V) THE APPELLANT WAS DIRECTED TO REMOVE THE DEFECTS IN THE ALLOTTED FLAT WITHIN A PERIOD OF TWO MONTHS FROM THE DATE OF THE DISTRICT FORUMS ORDER IN THE MANNER SPECIFIED BY THE ENGINEER COMMISSIONER FAILING WHICH "IN EXECUTION PROCEEDINGS THE DECISION WILL BE TAKEN TO AWARD THE AMOUNT REQUIRED TO BE SPENT BY THE COMPLAINANT ON REMOVAL OF THE DEFECTS". 5. THE APPELLANTS APPEAL FROM THIS ORDER BEFORE THE STATE COMMISSION WAS DISMISSED AND SO ALSO REVISION APPLICATION PREFERRED BY THE APPELLANT FROM THE STATE COMMISSIONS ORDER. A SPECIAL LEAVE PETITION WAS FILED BEFORE THIS COURT IN WHICH THIS COURT HAS GRANTED LEAVE. THAT APPEAL IS PENDING. 6. IN THE MEANTIME, THE RESPONDENT HAS PUT THE ORDER OF THE DISTRICT FORUM DATED 20-1-1999 INTO EXECUTION. IN THE EXECUTION PROCEEDINGS, THE AMOUNT PAYABLE BY THE APPELLANT TO THE RESPONDENT WAS QUANTIFIED. IN QUANTIFYING THE AMOUNT, THE EXECUTING COURT PROCEEDED ON THE BASIS THAT COST OF THE REPAIRS UNDERTAKEN BY THE RESPONDENT UPON FAILURE OF THE APPELLANT TO CARRY OUT THE DIRECTIVES OF THE DISTRICT FORUM AS CONTAINED IN THE ORDER DATED 20-1-1999 WAS RS 1.5 LAKHS. IT WAS HELD THAT THE APPELLANT WAS LIABLE TO PAY A SUM OF RS 3.16 LAKHS TOGETHER WITH FURTHER INTEREST AMOUNTING TO A SUM OF RS 75,517.50 AS WELL AS FOR THE COSTS OF APPEAL RS 1500 TOTALLING RS 3,93.407.50. THE APPELLANT WAS DIRECTED TO PAY THE AMOUNT TO THE RESPONDENT BY A BANK DRAFT. BEING AGGRIEVED BY THE ORDER OF THE EXECUTING COURT, THE APPELLANT PREFERRED AN APPEAL BEFORE THE STATE COMMISSION. THE STATE COMMISSION DISMISSED THE APPEAL. THE APPELLANT WAS DIRECTED TO PAY THE AMOUNT TO THE RESPONDENT BY A BANK DRAFT. BEING AGGRIEVED BY THE ORDER OF THE EXECUTING COURT, THE APPELLANT PREFERRED AN APPEAL BEFORE THE STATE COMMISSION. THE STATE COMMISSION DISMISSED THE APPEAL. THE NATIONAL COMMISSION HAS PARTIALLY ALLOWED THE REVISION APPLICATION OF THE APPELLANT TO THE EXTENT THAT THE DISTRICT FORUM HAD NOT TAKEN INTO ACCOUNT INTEREST PAYABLE TO THE APPELLANT ON THE DIFFERENTIAL AMOUNT OF THE COST OF THE FLAT. THE MATTER WAS ACCORDINGLY REMANDED BACK TO THE DISTRICT FORUM TO REWORK THE AMOUNT DUE TO THE RESPONDENT. 7. THE PRESENT APPEAL HAS BEEN PREFERRED BY THE APPELLANT FROM THIS ORDER. BASICALLY TWO GROUNDS HAVE BEEN URGED: (I) THAT THE ISSUE WHETHER THE APPELLANT WAS AT ALL LIABLE TO MAKE PAYMENT ON INTEREST OR AT THE RATES DIRECTED WAS THE SUBJECT-MATTER OF THE APPEAL PENDING BEFORE THIS COURT IN WHICH THE APPELLANTS CONTENTION IS THAT IT COULD NOT BE MADE LIABLE TO PAY INTEREST DURING THE PERIOD WHEN THERE WAS A STAY OF CONSTRUCTION ON THE LAND OVER WHICH THE FLAT WAS TO BE BUILT, AND (II) THAT THE EXECUTING COURT HAD NO JURISDICTION TO DETERMINE THE AMOUNT ALLEGED TO HAVE BEEN EXPENDED BY THE RESPONDENT ON THE ALLEGED REMOVAL OF THE ALLEGED DEFECTS IN THE FLAT. ]T IS STATED THAT THE ORIGINAL ORDER PASSED BY THE DISTRICT FORUM ON 20-1-1999 COULD NOT ALSO HAVE LEFT THE ISSUE TO BE DETERMINED BY THE EXECUTING COURT. IT IS SUBMITTED THAT AT LEAST TO THIS EXTENT THE CALCULATION OF THE AMOUNT AND THE INTEREST PAYABLE THEREON WAS UNSUSTAINABLE. 8. THE LEARNED COUNSEL APPEARING ON BEHALF OF THE RESPONDENT HAS STATED THAT THERE WAS NOTHING ON RECORD TO SHOW THAT THERE WAS ANY ORDER OF STAY OPERATING DURING ANY MATERIAL PERIOD AS CLAIMED BY THE APPELLANT. IT IS SUBMITTED THAT THIS COURT HAD NOT GRANTED ANY STAY AT THE TIME OF ENTERTAINING THE APPEAL FROM THE ORIGINAL ORDER OF THE DIFFERENT FORA UNDER THE CONSUMER PROTECTION ACT. IT WAS, THEREFORE, OPEN TO THE DISTRICT FORUM TO PROCEED WITH THE EXECUTION OF ITS ORDER DATED 20-1-1999. IT IS SUBMITTED THAT THIS COURT HAD NOT GRANTED ANY STAY AT THE TIME OF ENTERTAINING THE APPEAL FROM THE ORIGINAL ORDER OF THE DIFFERENT FORA UNDER THE CONSUMER PROTECTION ACT. IT WAS, THEREFORE, OPEN TO THE DISTRICT FORUM TO PROCEED WITH THE EXECUTION OF ITS ORDER DATED 20-1-1999. AS FAR AS THE QUANTIFICATION OF THE REPAIRS CARRIED OUT BY THE RESPONDENT IS CONCERNED, IT IS SUBMITTED THAT IN FACT THE RESPONDENT HAD EXPENDED MORE ON REMOVING THE DEFECTS IN THE FLAT BUT HAD LIMITED ITS CLAIM ONLY TO THE AMOUNT AS HAD BEEN FOUND BY THE ENGINEER COMMISSIONER IN HIS REPORT SUBMITTED BEFORE THE DISTRICT FORUM. IT IS, THEREFORE, SUBMITTED THAT THIS COURT SHOULD NOT INTERFERE WITH THE PROCEEDINGS IN EXECUTION OF THE DECREE. 9. WE ARE, PRIMA FACIE, OF THE VIEW THAT THE SUBMISSIONS OF THE APPELLANT MUST BE SUSTAINED. IT DOES NOT APPEAR THAT THERE IS ANY LAW UNDER WHICH THE DISTRICT FORUM COULD HAVE LEFT IT TO THE EXECUTING COURT TO DETERMINE WHAT WOULD IN FACT BE A DECREE. SINCE THE MAJOR PORTION OF THE CLAIM OF THE RESPONDENT IN EXECUTION RELATES TO THIS QUANTUM WE ARE OF THE VIEW THAT IT WOULD NOT BE EQUITABLE TO ALLOW THE RESPONDENT TO EXECUTE THE DECREE FOR THIS AMOUNT OR THE INTEREST REFERABLE THERETO. AT THE TIME OF ISSUANCE OF NOTICE THIS COURT HAD PASSED A LIMITED INTERIM ORDER TO THE EXTENT THAT THE DISTRICT FORUM WOULD DECIDE THE MATTER ON REMAND AS DIRECTED BY THE STATE COMMISSION. HOWEVER, THIS COURT HAS ALSO DIRECTED THAT NO EFFECT WOULD BE GIVEN TO THE ORDER OF THE DISTRICT FORUM WITHOUT THE LEAVE OF THIS COURT. WE WOULD DISPOSE OF THIS PRAYER FOR INTERIM RELIEF BY CONFIRMING THE INTERIM ORDER PASSED UNTIL THE FINAL DISPOSAL OF THIS AND THE CONNECTED APPEAL. THIS MATTER BE TAGGED ALONG WITH THE PENDING APPEAL.