Tamil Nadu

StateCommission

RP/24/2023

S Murugesan, S/o A.Subramaniam - Complainant(s)

Versus

Sri Sastha Constructions, Rep. by its Proprietor V.Sreekrishnan & Anr. - Opp.Party(s)

M/s V.Shankar

28 Jul 2023

ORDER

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present: Hon’ble Thiru Justice R.SUBBIAH  ... PRESIDENT

             Thiru.R VENKATESAPERUMAL        … MEMBER

 

Revision Petition No.24 of 2023

 

(Against the Order dated 13.10.2022 passed in MP No.50/2018 in   C.C. No.48/2008 on the file of  the DCDRC, Thiruvallur)

                                                    

                               Orders pronounced on :28.07.2023

S. Murugesan,

S/o. Mr. A. Subramaniam,

No.51/5, Type-II, HVF Estates,

Avadi,

Chennai – 600 054.

                        ... Revision Petitioner / Petitioner / Complainant.

 

Vs.

 

1. Sri Sastha Constructions,

Represented by its Proprietor,

Mr. V. Sreekrishnan,

No.7, 2^nd Street,

K.K. Nagar,

Thirumullaivoyal,

Chennai – 600 062.

 

2. K. Banumathy,

W/o. Mr. V. Sreekrishnan,

No.5, 1^st Street, K.K. Nagar,

Thirumullaivoyal,

Chennai – 600 062.

            ... Respondents / Respondents / Opposite parties 1 & 2.

 

For Revision Petitioner / Petitioner

/ Complainant                             : M/s. V. Shankar

 

For Respondents / Respondents

/ Opposite parties 1 & 2              :  M/s. K. Ganesan

 

 

This Revision Petition has been filed by the Revision Petitioner / Petitioner / Complainant to set aside the order in CMP No.50/2018 in C.C. No.48/2008 and came up for final hearing on 23.06.2023 and after hearing the arguments of the counsel for both parties and after perusing the materials on record and having stood over for consideration till this date, this Commission passes the following:-

 

O R D E R

R.Subbiah, J. – President.  

 

             The revision petitioner herein, who is the complainant in C.C. No.48 of 2008 on the file of the DCDRC, Tiruvallur, has filed the present Revision as against the Order, dated 13.10.2022, passed by the DCDRC, Tiruvallur, in CMP No.50 of 2018, in dismissing the said petition filed by him, seeking permission to withdraw the amount deposited by the Builder/OPs/Respondents herein, by holding that the petitioner, who failed to comply with the condition regarding re-conveyance of the property by him in favour of the OPs as directed by the  State Commission in its Order, dated 04.06.2014, passed in F.A. No.175 of 2013, is not entitled to withdraw the amount deposited by the OPs.

 

           2. Let us briefly recapitulate below the relevant facts which are necessary to decide the issue involved in this Revision.

           The Revision Petitioner herein had filed C.C. No.48 of 2008 before the DCDRF, Tiruvallur, alleging service deficiency against the OPs/Builder/respondents herein and, by orders dated 08.07.2010, the District Forum had allowed the said Complaint by directing the OPs to refund the amount paid along with compensation and  the complainant was directed to re-convey the property on receipt of the amount.   Aggrieved by the same, the OPs had filed an appeal in F.A. No.743 of 2010 before this Commission and the same was allowed in part by setting aside the award of compensation and confirming the rest of the Order.

            Pursuant to the same, the revision petitioner had filed E.P. No.6 of 2012 for realization of Rs.5,15,052/- and the said petition was terminated by an order, dated 26.04.2013. Seeking to set aside the said Order, an appeal in F.A. No.175 of 2013 was filed before this Commission and the said Appeal came to be disposed of on 04.06.2014 with a clarificatory direction that the complainant is entitled to receive the deposit amount only on re-conveying the property, within a period of six weeks from the date of receipt of a copy of the order. While so, after the deposit made by the Judgment Debtors to the credit of C.C. No.48 of 2008, the Revision Petitioner had moved CMP No.101 of 2017, seeking withdrawal of the deposited amount, but, the said petition was found not maintainable and consequently, he filed CMP No.50 of 2018 for a direction to issue the FDR amount and the said petition was vehemently opposed by the OPs by filing a common memo stating that, having failed to comply with the conditional order passed in F.A. No.175 of 2013 for re-conveyance, the petitioner has no locus standi to seek for  withdrawal.  

          The District Commission, by adverting to the specific clarification made by this Commission in the Order, dated 04.06.2014, passed in F.A. No.175 of 2013, to the effect -         “It is further clarified, that the complainant is entitled to receive the amount deposited, only on re-conveying the property, at the cost of the opposite party.  Time granted for compliance, six weeks from the date of receipt of this order.”, ultimately dismissed the said petition for the reason that the complainant is not entitled to receive the FDR amount deposited, since he failed to comply with the condition regarding re-conveyance. It is as against the said order of the District Commission, the petitioner/complainant has preferred this Revision.

 

           3. Learned counsel for the revision petitioner submits that  the 2^nd respondent/Plot Owner/Joint Developer had filed a suit in O.S. No.440 of 2014 on the file of the District Munsif Court, Ambattur, seeking to declare the deed of sale, dated 08.03.1999, registered as document No.1178 of 1999, on the file of the Sub-Registrar, Ambattur, in favour of the defendant therein/present Revision Petitioner/Complainant, as null and void and, by judgment dated 04.06.2018, the said Suit was allowed by declaring the sale deed executed by the 2^nd OP/plaintiff in favour of the complainant/defendant as null and void. According to him, by virtue of the said judgment passed by the civil court in the
Suit filed by none else than the R2 herein/2^nd OP, declaring the sale deed covering the property in question as null and void, the conditional order passed by the State Commission was already satisfied and, on the face of it, there cannot be any objection in acceding to the plea of the revision petitioner for withdrawal of the amount deposited by the OPs.

 

           4. The respondents herein/OPs vehemently opposed the revision petition by stating that, way back on 04.06.2014, while disposing of the appeal in F.A. No.175 of 2013, this Commission had made it in abundantly clear terms that the complainant shall be entitled to the deposited amount only after complying with the condition to re-convey the property within a period of six weeks from the date of receipt of the order; while so, the complainant, who never came forward, either within the 6 week time-limit as stipulated in the Commission’s Order or anytime thereafter, to re-convey the property, willfully neglected even the personal demands made at intervals by the respondents for re-conveyance and such defiant conduct of the complainant ultimately drove the 2^nd respondent/plot owner to move the civil court to get the sale deed declared null and void.  In such circumstances, the petitioner cannot be allowed to reap any undue advantage from his own default by misquoting the civil court’s Judgment as if re-conveyance was given effect to thereby, which was never done, and any such misguided claim would only amount to travesty of justice.

 

               5. Upon considering the rival submissions advanced on either side and perusing the materials made available before us, we are of the view that a crafty litigant like the revision petitioner, who attempts to shield and conceal his apparent default by knavishly citing a Judgment that came to be passed by the civil court in favour of the 2^nd OP owing to the recalcitrant attitude of the complainant, and  who never came forward at any point of time to re-convey the property as directed by this Commission and thus exhibited a defiant conduct throughout, cannot be shown any further indulgence.

 

            6.  It is seen that, by repelling the contention of the OPs that the complainant/revision petitioner had not paid the amount in full to the builder and that is the prime reason why the latter could not timely hand over the flat to him, the District Forum had ordered to refund the amount with compensation, however, on appeal, this Commission was pleased to set aside the award of compensation alone by confirming the rest of the Order passed by the District Forum.  Subsequently, upon the 1^st OP depositing the award amount before the District Forum, the complainant filed E.P. No.6 of 2012  finding fault with the calculation of interest and the District Forum terminated the said petition and, in the consequential Appeal filed in F.A. No.175 of 2013, this Commission, by the order dated 04.06.2014, clearly directed as follows:-

             “5. …. the complainant is directed to reconvey the property concerned.  It is further clarified, that the complainant is entitled to receive the amount deposited, only on reconveying the property.  Time granted for compliance, six weeks from the date of receipt of this order. “

The above direction shows that the condition precedent to seek withdrawal of the deposited amount is that the complainant shall re-convey the property to the OPs and only thereafter, he can seek for withdrawal of the sum deposited by them.  Further, the time for compliance was also fixed as six weeks. It is the specific contention of the OPs that, after the said order, they made personal demands with the complainant for re-conveyance of the property but in vain.  It is axiomatic, if anytime during the 6 week respite given by this Commission or shortly thereafter, the complainant had made any honest and sincere efforts to re-convey the property, the 2^nd OP/Plot Owner would not have been driven to move the civil court seeking to declare the sale deed null and void.  The defiant conduct of the petitioner in avoiding re-conveyance all the time only supports the claim of the OPs that he had pledged the property and that is why, he was never ready for re-conveyance.  Further, from the judgment passed by the civil court, we find that the complainant, who is shown as defendant therein, did not choose to contest the proceedings and, as a result, he was set ex parte and the civil court also recorded a clear finding that, as per the orders of the State Commission passed on 04.06.2014, the defendant therein/revision petitioner herein ought to have re-conveyed the suit property in favour of the plaintiff therein/2^nd respondent herein and  that, only due to the failure of the defendant in complying with the appeal orders passed by the State Commission, it has come to the conclusion that the plaintiff is entitled for the relief of declaration.  When the whole judgment of the civil court revolves around the willful failure on the part of the complainant/revision petitioner/defendant in complying with the conditional order passed by this Commission, it is quite unfortunate that the revision petitioner is citing the said judgment in his favour to portray as if the conditional order passed by this Commission on 04.06.2014 was satisfied consequent to the declaratory relief given to the 2^nd OP.  There is a sharp difference between the complainant voluntarily effecting re-conveyance of property within the time-limit as prescribed by this Commission and the 2^nd OP getting the declaratory relief from the civil court after the default of the complainant in doing re-conveyance that drove her to file a civil suit.  Thus, when declaratory relief was given to the 2^nd respondent by only considering the lethargic and defiant conduct of the complainant/revision petitioner in never coming forward to comply  with the orders of the State Commission, we are completely at a loss to understand as to how the revision petitioner is so barefaced to cite the civil court’s Judgment and say that re-conveyance was already given effect to by virtue of the declaratory relief, which was in fact granted only due to the default of the revision petitioner. The guileful conduct of the revision petitioner in misquoting a Judgment that completely runs against him in adverse lines, further exposing his repulsive conduct of non-compliance and utter disregards to the orders of the State Commission needs to be dealt with in a fitting manner.  Since the 2^nd OP was driven to approach the civil court only due to the non-compliance on the part of the revision petitioner regarding the ‘clarificatory conditional order’ passed by this Commission for re-conveying the property within the prescribed time and, by looking at the deplorable conduct of the revision petitioner in slyly wielding the civil court’s judgment to harvest a positive order and thereby taking the Courts and Commissions for granted, we have no hesitation to hold that the revision petitioner/complainant shall be disentitled to claim the amount deposited by the OPs and consequently, we hold in turn that it is only just and proper to direct refund of the sum in question to the OP concerned, who deposited it before the District Commission to the credit of C.C. No.48 of 2008. 

 

           7. In the result, by disentitling the revision petitioner to claim the deposited amount, the Revision Petition is dismissed as devoid of any merit and it is consequently directed that the amount deposited by the OP concerned to the credit of C.C. No.48 of 2008 shall be refunded to him/her upon the said OP moving proper application before the District Commission.

 

R.VENKATESAPERUMAL                                                R.SUBBIAH, J.

MEMBER                                                                                  PRESIDENT.

 

ISM/TNSCDRC/Chennai/Orders/JULY/2023.