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M/s. Alliance Palm Developers & Constructions Pvt. Ltd., Bangalore & Others v/s Venkata Bhanukiran Desi Raju

    First Appeal No. 738 of 2017

    Decided On, 07 April 2022

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. DINESH SINGH
    By, PRESIDING MEMBER & THE HONOURABLE MR. JUSTICE KARUNA NAND BAJPAYEE
    By, MEMBER

    For the Appellants: G. Indira, Advocate. For the Respondent: Notice not issued.



Judgment Text

1. This appeal has been filed under section 19 of the Act 1986 in challenge to the Order dated 14.12.2016 of the State Commission in complaint no. 29 of 2012.

2. We have heard the learned counsel for the appellant builder and have perused the record.

3. The appeal was filed on 17.04.2017. Till today i.e. 07.04.2022 notice has not / could not be issued to the respondent complainant, for almost 04 years now.

The way and manner in which the appeal has been procrastinated / conducted by the builder can be gauged from the proceedings before this Commission from 04.05.2017 onwards. In this respect this Commission’s Orders dated 12.01.2022, dated 31.01.2022 and dated 07.02.2022 are being reproduced below for reference:

Dated : 12.01.2022

ORDER

Taken up through video conferencing.

This appeal has been filed on 17.04.2017 under Section 19 of The Consumer Protection Act, 1986 in challenge to the Order dated 14.12.2016 of the State Commission in C.C. No. 29 of 2012.

A perusal of the record shows that this is a builder-buyer dispute and the State Commission vide its impugned Order dated 14.12.2016 has ordered for refund of the principal amount with interest and cost of litigation.

Till today i.e. 12.01.2022 notice has not been issued to the respondent. The way and manner in which the appeal has been procrastinated for over 03 years by taking time for curing the defects and then by taking time for “settlement with the complainant” does not reflect favourably on the appellants.

In the above backdrop, the learned counsel requests for a brief adjournment to seek instructions.

List on 18.01.2022.

Dated: 31.01.2022

ORDER

Taken up through video conferencing.

Taking reference in the earlier Order dated 12.01.2022, learned counsel for the appellants requests for a further period of one week to seek instructions.

List on 07.02.2022.

Dated : 07.02.2022

ORDER

Taken up through video conferencing.

This appeal was filed on 17.04.2017 under section 19 of The Consumer Protection Act, 1986 in challenge to the Order dated 14.12.2016 of the State Commission in complaint no. 29 of 2012.

The matter relates to a builder–buyer dispute.

We have heard the learned counsel for the appellants and perused the material on record, including inter alia the State Commission’s impugned Order dated 14.12.2016, the memorandum of appeal and the proceedings undertaken before this Commission.

The State Commission vide its impugned Order of 14.12.2016 has ordered for refund of the principal amount (Rs. 35 lakh) with interest (@ 18% p.a.) and cost of litigation (Rs. 25 thousand).

We note that from 17.04.2017, when the appeal was instituted, till today, i.e. 07.02.2022, notice could not be issued to the respondent complainant. A perusal of the proceedings shows the way and manner in which the appeal has been procrastinated for over 03 years, first by taking inordinate time for curing the defects and then by taking inordinate time for attempting “settlement with the complainant”.

Learned counsel for the appellants submits that complaints no. 29 of 2012, no. 70 of 2012 and no. 71 of 2012 were decided by the State Commission vide its common Order dated 14.12.2016. In so far as complaints no. 70 of 2012 and no. 71 of 2012 are concerned, the matters have been settled with the complainants and appeals apropos the said complaints have been withdrawn. Only this instant appeal, apropos complaint no. 29 of 2012, is now surviving before this Commission.

Learned counsel further submits that in the instant appeal the sole grievance of the appellants is regarding the rate of interest of 18% per annum awarded by the State Commission, which, in its view, is unjustified and unequitable, and arbitrarily high.

The Act 1986 is “for better protection of the interests of consumers”, its Statement of Objects and Reasons says of “speedy and simple redressal to consumer disputes”. The sole grievance of the appellant is apropos the rate of interest awarded by the State Commission. The fact that the principal amount of Rs. 35 lakh was duly deposited by the complainant respondent with the appellants is not being disputed. The cost of litigation of Rs. 25 thousand awarded by the State Commission is not being agitated. Only the rate of interest awarded by the State Commission is being contested. It also bears emphasis that without obtaining any stay or other interim relief from this Commission, the appellants have not implemented the State Commission’s impugned Order. That is to say, from 2016, when the State Commission passed its Order, till now, i.e. 2022, the respondent complainant has been deprived of the benefit of the Order passed in his favour by the State Commission.

In the wake of such disconcerting facts and circumstances, we deem it just, equitable, lawful and conscionable to order that the appellants shall refund the principal amount of Rs. 35 lakh and pay the cost of litigation of Rs. 25 thousand to the respondent complainant within a period of two weeks from today without fail and file proof thereof with the Registry of this Commission within a further period of one week thence. Subject to the afore being duly complied with within the stipulated period, notice may be issued by the Registry of this Commission limited and confined to the sole question of rate of interest (only). The notice may also be ‘dasti’ in addition. The appellants shall ensure that ‘dasti’ service of the notice is duly effected on the respondent complainant before the next date of hearing.

In case the principal amount is not refunded and the cost of litigation is not paid within two weeks from today and proof thereof is not filed within a further period of one week thence, notice may not be issued by the Registry and the matter may be placed before the bench for directions.

Subject to the appellants refunding the principal amount of Rs. 35 lakh and paying the cost of litigation of Rs. 25 thousand to the respondent complainant within the stipulated period of two weeks from today, the operation of the impugned Order dated 14.12.2016 in complaint no. 29 of 2012 shall remain stayed in so far as it relates to payment of interest (alone). If the conditions attached with the grant of stay are not fulfilled, the State Commission shall be free to undertake execution of its Order of 14.12.2016 in complaint no. 29 of 2012 in its entirety as per the law.

List on 01.04.2022.

Let the Order be ‘dasti’ in addition to facilitate timely compliance.”

4. The matter relates to a builder-buyer dispute. The State Commission vide its impugned Order of 14.12.2006 had ordered for refund of the principal amount (Rs.35 lakh) with interest (at the rate of 18% p.a.) and cost of litigation (Rs.25 thousand). The sole grievance of the builder as submitted by its learned counsel on 07.02.2022 (and again today i.e. on 07.04.2022) is regarding the rate of interest which the principal amount shall carry. Vide our Order of 07.02.2022, after a critique of the facts & circumstances and the situation obtaining, it was inter alia directed that the appellant builder shall refund the principal amount and pay the cost of litigation within two weeks without fail and file proof thereof within a further period of one week thence and subject to the afore being duly complied with within the stipulated period notice be issued by the Registry to the respondent complainant limited to the sole question of rate of interest on the principal amount.

5. The learned counsel for the builder submits that the principal amount has not been refunded and the cost of litigation has not been paid to the complainant even till today. Consequently notice could not be issued to the respondent complainant.

Learned counsel could not offer any acceptable explanation or reason for not refunding the principal amount and not paying the cost of litigation when the same are admittedly not being agitated and the sole question being agitated before this Commission is the rate of interest on the principal amount. Nor is any explanation or reason forthcoming for not complying with the State Commission’s impugned Order of 17.04.2017 even when the State Commission had ordered that the same shall be complied with within 45 days and even though no stay on the operation of the State Commission’s Order has been granted by this Commission.

6. The spectrum of proceedings that have been kept pending since 2017 does not present a welcome or desirable state of affairs. The conduct of the appellant builder in not allowing this Commission to proceed further first by taking considerable time for curing the defects then under the guise of making attempts of compromise is disconcerting. Even though no stay has been granted on the State Commission’s impugned Order by this Commission, the same still has not been complied with and the appellant builder has successfully kept the same in abeyance by resorting to the pleas of compromise which now appear to be apparently nothing but a contrivance to keep the proceedings on hold indefinitely. Thereafter, even when, by the builder’s own contention, it is not challenging the refund of the principal amount and payment of the cost of litigation and is only agitating the rate of interest on the principal amount, the builder has blatantly disregarded this Commission’s direction made on the last occasion i.e. on 07.02.2022 to refund the principal amount and pay the cost of litigation. The Order passed by us on the last occasion was unambiguous and categorical without any equivocation about it, and had to be complied with within two weeks. Yet to our chagrin we have again been informed by the learned counsel that the last Order still remains non-complied with, even after two months. Nor is any categorical submission still forthcoming even today that the refund of the principal amount and payment of the cost of litigation, which are not in challenge, will be made good even now within any reasonable period. It is difficult to exactly describe such a manner of prosecuting this appeal. To say the lea

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st it appears to be nothing but non-prosecution of appeal. It is also a clear case of abuse of the process of court. The appellant cannot keep on misusing the process of this Commission for an indefinite period of time, and certainly indefinite non-compliance of the Orders either of the State Commission or of this Commission cannot be allowed. We have to put an end to this indefinite process of procrastination and the attempts to abuse the solemn proceedings of this Commission in this manner. The inevitable corollary of such a manner of conducting the appeal, which to us is nothing but its non-prosecution, is its dismissal. 7. The appeal no. 738 of 2017 stands dismissed. 8. In case its Order of 14.12.2016 is not complied with forthwith, in its entirety, execution proceedings shall be taken to their lawful culmination by the State Commission. 9. The Registry is requested to send a copy each of this Order to the parties in the appeal and to their learned counsel as well as to the State Commission immediately. The stenographer is also requested to upload this Order on the website of this Commission immediately.
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