STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

E.A. No.32 of 2017 in

                                                Consumer Complaint No.224 of 2015

Date of the Institution:08.11.2017

Date of Final Hearing:01.06.2023

    Date of pronouncement: 01.06.2023

1.      Mr. Abhinandan Arora, S/o Shri Arun Aora, R/o House No.440, Sector-16, Panchkula (Haryana).

2.      Mr. Arun Aora S/o Mr.J.S. Arora, R/o # R/o House No.440, Sector-16, Panchkula (Haryana).

                                                                  .…. Complainants-Decree Holders

Versus

M/s Landmark Apartments Pvt. Ltd., Land Mark House, Plot No.85-P, Sector-44, Gurgaon, (Haryana) through its Director/Authorized Person/Signatory.

                                                    .….Opposite Party-Judgment Debtor

CORAM:    S.P.Sood, Judicial  Member.         

Present:-    Mr. Neeraj Sharma, counsel for the complainant-Decree Holders.

                   Mr. Shubnit Hans, counsel for the opposite party-judgment Debtor.

                                                 ORDER

S P SOOD, JUDICIAL MEMBER:

                    This Commission while allowing C.C. No.224 of 2015 has directed the OP to pay Rs.27,00,000/- alongwith 18% interest per annum (as per Clause 13 of MoU) from the date of deposit, that is 7^th November, 2011, till its realization after deducting the assured return already paid by the opposite party to the complainants.

2.                Seeking compliance of the order dated 26.04.2017 passed by this Commission which has also attained finality wherein complainant-Decree holder have filed this execution application No.32 of 2017 on 08.11.2017 as JDs having failed to comply the said order.  Parties appeared before this Commission.   

3.                Perusal of the record reveals that in order of Complying with the above said order, the JDs-OPs has made the several payments, the details of which is as under: -

4.                This is how in all an amount of Rs.55,33,900/- has been received by the Decree Holders-complainants. As such after paying up the above stated amount JDs assert of their having cleared their entire liability under the said award in question.

5.                On the other hand, learned counsel for DHs though admit of their having received payment of Rs.55,33,900/- along with interest @ 18% from the JDs but were not satisfied. Therefore, the matter was further adjourned to 23.07.2019 for producing relevant calculation sheets from authorized chartered accountants on behalf of DH and that of JDs. The calculation sheets on behalf of both the parties were produced before the commission on 30.08.2022 respectively but there was a difference between the same. Thereafter, the matter was adjourned to 27.09.2022 for reconciliation of the calculation sheets. The matter was again taken up on September, 27^th 2022 and on that date Judgment Debtor-opposite party had filed fresh calculation sheets along with TDS Certificate and the case was adjourned to 09.11.2022 for filing objection by Decree Holders-complainants on the calculation sheet supplied by Judgment Debtor-opposite party. On 09.11.2022 Decree Holders-complainants filed objection to the calculation sheet supplied by Judgment Debtor-opposite party and thereafter the matter was adjourned to 15.12.2022, 31.01.2023, 24.02.2023, 17.04.2023 for filing reply to these objections by Judgment Debtor-opposite party. Even, the records reveal that the matter was taken up before the National Lok Adalat for passing appropriate orders and thereafter the matters as again adjourned to 26.05.2023 and 01.06.2023 for passing appropriate orders. Calculations sheets as provided by both the parties were carefully perused and examined wherein JDs have consistently desired to appropriate various payments firstly towards the principal amount and thereafter other payments tendered by them towards the interest component. However to resolve this dispute it would be relevant here to pursue the order passed by the Commission in its order dated 26.04.2017, the relevant portion is as under:-

“while accepting the complaint, the O.P. is directed to refund of the amount of Rs.27,00,000/-/- alongwith interest @ 18% per annum 18% interest per annum (as per Clause 13 of MoU) from the date of deposit, that is 7^th November, 2011, till its realization after deducting the assured return already paid by the opposite party to the complainants. In case, there is a breach in making payment within the stipulated period of three months, in that eventuality, the complainants would further be entitled to get the interest @ 18% per annum, for the defaulting period”.  

6.      It is admitted case of both the parties that in compliance of the aforesaid order JD had made full and final payment of Rs.55,33,900/- uptill 01.07.2019, so the JD have cleared the entire amount standing against the DHs which included principal amount and interest and thus nothing was pending towards the DHs. It is pertinent to mention here that builder has also deposited an amount of Rs.81000/- against TDS. The relevant TDS certificate is also attached with the file.

7.                Section 47 (1) of CPC is relevant in this regard:-

“(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.”

Even it was also observed by Hon’ble Supreme Court of India that where

(iv) An executing court granted decree for interest which was not part of the decree for execution on ground of delay and unreasonable stand taken in execution.  Since the executing court cannot travel beyond decree under execution, the said decree was held to be without jurisdiction; (Kaneshwar Das Gupta V. State of Uttar Pradesh, AIR 1997 SC 410).”

                   It has been held by Hon’ble Supreme Court of India in S.Bhaskaran Vs. Sebastian (Dead) by Lrs. & Ors. In Civil Appeal No.7800 of 2014 decided on 13.09.2019.  Para No.9 is relevant and reproduced as under:-

“Having perused the records and the findings of the Trial Court, we find ourselves unable to agree with the decision of the High Court in the impugned judgment. It is well-settled that an executing court cannot travel beyond the order or decree under execution (see Rameshwar Dass Gupta Vs. State of UP and Another, 1996 (4) SCT 575 (1996) 5 SCC728.”

8.                It has further been held by the Hon’ble Supreme Court of India in Civil Appeal No.1220 of 2007 titled Vedic Girls Senior Secondary School, Arya Samaj Mandir, Jhajjar Vs. Smt. Rajwanti and others decided on 08.03.2007, elaborating the provisions of section 47 of Civil Procedure Code relating to execution that the executing court cannot travel beyond the decree by enlarging its scope.  Hon’ble Supreme Court also observed that if the decree is not clear in its terms, the proper course for the decree holder is to get the same amended accordingly from the court passing the same and that the executing court cannot grant any relief which is not discernible in the terms of the decree.

9.                In the expressed provisions of Section 47 of Civil Produce Code, 1908 and keeping in view the observations of the Hon’ble Supreme Court in Kaneshwar Das Gupta V. State of Uttar Pradesh, (supra), S.Bhaskaran Vs. Sebastian (Dead) by Lrs. & Ors.(supra) and Vedic Girls Senior Secondary School, Arya Samaj Mandir, Jhajjar Vs. Smt. Rajwanti and others (supra), in our considered opinion, the order of the Commission passed in decree dated 26.04.2017 has  already been complied with  and in terms of compliance, JD had made full and final payment of Total amounting to Rs.55,33,900/- uptill 01.07.2019. This is how the JDs have cleared the entire outstanding amount standing against the DHs which included principal amount, compensation, litigation expenses and interest and thus nothing was pending towards the DH. The DH also received Rs.55,33,900/- towards full and final settlement and subsequent orders of this Commission. 

10.              Keeping in view the aforesaid facts and circumstances of the case, this Commission is of considered view that the execution petition stands fully complied with and duly discharged in its entirety and thus hold that the execution petition has been complied with in terms of the order dated 26.04.2017 passed by this Commission. Execution petition is disposed of as being fully satisfied.

Pronounced on 01^st June, 2023                                                             S. P. Sood                                                                                                                                        Judicial Member    

                                                                                                                        Addl. Bench-I.