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M/s. Libord Finance Ltd. v/s Sharpmind Consultancy Services

    Appeal Execution No. 208 of 2018

    Decided On, 31 October 2019

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. PREM NARAIN
    By, MEMBER

    For the Appearing Parties: Pavan Upadhyaya, Anand Patwardhan, Mohit Bhansali, Anjani Kumar Singh, Advocates.



Judgment Text


1. These Appeals Execution have been filed by M/s. Libord Finance Ltd. and Sharpmind Consultancy Services Pvt. Ltd. & Ors. respectively challenging the order 05.10.2018 passed by the State Commission in Execution application No.16/23 in CC No.01/32.

2. Brief facts of the case are that the complainant/appellant in AE No.208 of 2018 had filed a consumer complaint before the State Commission and the same was allowed vide order dated 17.11.2014 as under:-

"Opponent is directed to execute an agreement of sale in respect of another shop of the same size within the vicinity of the same location and to hand over possession of the same to the complainant within a period of six months from the date of this order by appropriating Rs.5 Lakhs paid by the complainant as booking amount towards total consideration and accepting Rs.47 Lakhs as remaining consideration from the complainant by giving intimation about readiness of the shop and the agreement to be executed in favour of the complainant."

3. The opposite parties preferred first appeal bearing No.106 of 2015 before the National Commission and this Commission vide its order dated 11.03.2016 modified the order of the State Commission as under:-

"25. However, it must be borne in mind that a sum of Rs.47.00 Lakhs was not paid by the complainant since 30.04.2000. We hereby modify the order of the State Commission and direct that, in addition to the order of the State Commission, the complainant will also pay interest at the rate of 10% p.a., from 30.04.2000, till the date of this order, in both the eventualities, specified in the order of State Commission."

4. As the possession was not offered within a period of six months, the complainant filed execution application 16/23 before the State Commission. The State Commission vide its order dated 05.10.2018 passed the following order:-

"We make it clear that for the delayed period with effect from date of final order, the amount which is deposited on 18/01/2017 ought to have been withdrawn by the opponents so as to comply with their obligation as per final order to deliver possession of the shop which is subject matter of consumer dispute. As long as opponents not delivering possession of shop to the complainant, they shall pay interest @10% p.a. on the amount withdrawn by them or made payable to them with effect from 18/01/2017. Meanwhile, accused shall produce certificate of completion of building duly certified by the Architect/Structural Engineer/Surveyor as also copy of application made to the Municipal Corporation indicating that occupation permission is sought for by the opponents pursuant to the final order. This compliance shall be made before the next date, failing which we will have to take coercive measures."

5. Aggrieved by the above order of the State Commission dated 05.10.2018, these two appeals have been filed. Parties will be referred as complainant and opposite parties for the purposes of identification.

6. Heard the learned counsel for both the parties and perused the record. Learned counsel for the complainant stated that the State Commission has allowed the release of the amount of Rs.47 lakhs deposited along with the interest with the State Commission to the opposite parties without insuring other part of the original order of the State Commission that the amount will be accepted by the opposite parties only when they are in a position to submit the completion certificate and they are in a position to hand over the possession. Learned counsel stated that the complainant to prove his bona fides deposited the total amount as ordered by the State Commission before the State Commission along with interest as ordered by the National Commission. Purpose of depositing the amount with the State Commission was that the interest of the complainant is safe. Once the amount gets released to the opposite parties and opposite parties are not in a position to handover the flat as per order of the State Commission, then the complainant will lose on both sides i.e. his money has been released to the opposite parties whereas no possession would have been offered by the opposite parties.

7. On the other hand, the learned counsel for the opposite parties stated that the money has not yet been released as the complainant has got the stay order in the appeal filed by the complainant before this Commission. The opposite parties are aggrieved because the State Commission has observed that the opposite parties will be responsible for interest @10% p.a. on the amount paid by the complainant, whereas the fact is that only Rs.5,00,000/- has been paid by the complainant to the opposite parties so far and for this amount interest has already been paid to the complainant. The State Commission's order further states that the interest will be paid from 18.01.2017 when the amount was deposited with the State Commission by the complainant. Clearly, if the amount has not been paid to the opposite parties, how can the opposite parties be made liable to pay interest on this amount, which is lying with the State Commission? Thus, the order of the State Commission primafacie is wrong so far as it relates to the payment of interest on the advance amount deposited.

8. In reply to the arguments of the learned counsel for the opposite parties, the learned counsel for the complainant stated that interest is payable from the date he deposited the amount before the State Commission because the amount has gone out of the pocket of the complainant since that date.

9. I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the record. It is seen from the order of the State Commission dated 17.11.2014 that the remaining amount was to be paid by the complainant and there was no direction that the amount will be deposited with the State Commission. Similarly, the order of this Commission also does not direct the complainant to deposit the amount with the State Commission. The meaning of operative portion of both these orders is clear that the amount was to be paid to the opposite parties and the opposite parties were to comply with their part of the obligation after accepting the remaining amount. Clearly, if the opposite parties do not comply with the order of the State Commission as confirmed by this Commission in respect of their obligation towards the complainant, the State Commission will take appropriate action in the Execution Application, which is proceeding before the State Commission. A builder completes the building when the payment is made by the allottees. The final order of the State Commission mentions the payment to be accepted by the opposite parties and in the execution case, a court cannot interpret the final order in its own way. It has to be interpreted in the sense it is actually written. Moreover, the learned counsel for the opposite parties stated that the second floor where the allotted shop of the complainant is located is completely ready and they are likely to get the occupancy certificate within a short period and will be filed before the State Commission. The opposite parties are in a position to deliver possession to the complainant after obtaining the occupancy certificate shortly. The learned counsel for the complainant also agrees that the matter can be resolved if the possession is given as per the order dated 17.11.2014 of the State Commission as modified by the order of the National Commission dated 11.03.2016 after proper completion certificate and occupancy certificate have been obtained by the opposite parties.

10. From the above discussion, I am of the view that impugned order of the State Commission dated 05.10.2018 is not in contradiction with the original order dated 17.11.2014 or against the order dated 11.03.2016 passed by this Commission. Hence, I do not find any force in Appeal Execution No.208 of 2018, which has been filed by the complainant.

11. So far as the Appeal Execution No.217 of 2018 is concerned, it is seen that the State Commission has asked the opposite parties to give interest of 10% p.a. from 18.01.2017, whereas the amount was lying before the State Commission and was not released to the opposite parties. Clearly, the opposite parties are responsible to pay the interest as ordered by the State Commission from the date of receipt of the amount. It is also obvious that if the amoun

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t was lying before the State Commission, it must have earned some interest and the complainant would be entitled to get that interest added to his amount deposited with the State Commission. 12. On the basis of the above discussion, Appeal Execution No.217 of 2018 is partly allowed and the State Commission order dated 05.10.2018 is modified to the extent that interest of 10% p.a. will be payable on Rs.5,00,000/-, which was paid in advance to the opposite parties from the date of its deposit with the opposite parties till actual payment. Interest of 10% p.a. shall be payable on the amount deposited by the complainant on 18.01.2017 shall be paid by the opposite parties only from the date of receipt of this amount by the opposite parties. The interest accrued on this amount from the date of deposit i.e. from 18.01.2017 till release to the opposite parties (if any) shall stand credited to this amount in favour of the complainant.
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