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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI- frivolus litigation imposed heavy penalty for not complaining the decree=It is a typical example how a litigation proceeds and continues and in the end there is a profit for the wrongdoers. 50. Learned Amicus articulated common man’s general impression about litigation in following words : “Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road.”= It is well settled that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, goes on filing meritless petitions in different foras. Time and again Courts have held that if any litigant approaches the court of equity with unclean hands, suppress the material facts, make false averments in the petition and tries to mislead and hoodwink the judicial forums, then his petition should be thrown away at the threshold. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree must be dealt with heavy hands. A strong message is required to be sent to such type of litigants that this Commission is not helpless in such type of matters. 16. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed ; “Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing law’s delay and bringing bad name to the judicial system.”

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      NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

 

 

                                 FIRST APPEAL NO.502 OF 2011

                                                 Alongwith

                                     I.A. No.01 of 2011 (For stay)

 (Against the order dated  11.11.2011 in E.A. No.25/2010 in CC No.80/2009

 of the State Commission, Andhra Pradesh)

 

 

R. Narasimha Reddy,

S/o R. Satyanarayana Reddy,

R/o Flat No.102, Sphinix Apartments,

Street No.1, Himayathnagar,

Hyderabad.                                                                     …..Appellant

Vs.

 

 

1.      Kuchakula Surender Reddy,

S/o Late K. Kantha Reddy,

R/o Flat No. 505,

Ashokchandra Enclave,

Lakdi-ka-pul, Hyderabad.

 

 

2.      Sikhara Constructions,

R/o Flat No. 102, Sphinix Apartments,

Street No.1, Himayathnagar,

Hyderabad.

Rep. by its Managing Director

K. Vishnu Vardhan Reddy

 

3.      K. Vishnu Vardhan Reddy,

S/o Late K. Kista Reddy,

R/o Flat No. 301, Start Homes,

Domalguda, Hyderabad                                          ….Respondents

BEFORE:

       HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

       HON’BLE MR. VINAY KUMAR, MEMBER       

For the Appellant      :    Mr. Gaichangpou Gangmei, Advocate with

Mr. Sridhar Potaraju, Advocate

 

For the Respondents :    Mr.Amrit Pal Singh, Advocate with

Ms. Gurjinder Kaur, Advocate for no.1/Caveator

 

Pronounced on:  5th  March,  2012

 

ORDER

 

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

Appellant who was (opposite party no.3) in the State Commission, has filed this appeal under Section 27A of the Consumer Protection Act, 1986 (for short as ‘Act) challenging order dated 11.11.2011, passed by Andhra Pradesh State Consumer DisputesRedressal Commission, Hyderabad (for short as ‘State Commission’).

2.       Brief facts are that Consumer  Complaint (No. 80 of 2009) was filed by respondent no.1 (complainant in the State Commission) against respondent no.2( opposite party no.1) which is a partnership firm and its two partners, namely, appellant and Shri JaligammaPrakash-opposite party no.4 and also against opposite parties no.5 to 7.  However, opposite parties no.4 and  7 have not been impleaded as a party in this appeal,  for reasons best known to the appellant.

3.       State Commission, vide its order dated 6.9.2010, allowed the complaint with following directions:-

“1.      that the opposite parties 1 to 3 shall execute a sale deed in respect of the schedule flat no.302 built up area admeasuring 1610 sft. with parking lot with all amenities built on 3-6-369/22A, Street no.1, Himayath Nagar, Hyderabad, within one month from the date of the order.

2.       that the complainant shall deposit the balance of sale consideration either in the State Commission or pay the same directly to OP 1 by obtaining Demand Draft within 30 days from the date of order.

3.       that the opposite parties 1 to 3 shall deliver the above said flat by completing with all required amenities as agreed upon within two months from the date of order.

4.       that the complainant is entitled for compensation as per the clause no.6  of Ex. A1 sale agreement and recover the same from opposite parties 1 to 3 with joint and several liability and

5.       that the complainant is entitle for litigation expenses of Rs.2,000/- recoverable from opposite parties 1 to 3 with joint and several liability.”

4.       Present appellant and opposite parties no.4 to 7 remained ex parte before the State Commission, whereas the partnership firm including other partners of the firm contested the dispute.

5.       Appellant herein, challenged the ex parte order dated 6.9.2010 of the State Commission by filing (I.A. No.2508 of 2010) in CC No.80 of 2009.  That application was rejected by the State Commission, vide its order dated 2.12.2010. Appellant filed Revision Petition No.(179-180 of 2011) against order dated 2.12.2010.

6.   .  This Commission, vide order dated 25.2.2011, dismissed the Revision.

7.       It is pertinent to point out that appellant had also challenged order dated 6.9.2010, passed by the State Commission in (F.A. No.166 of 2011), in which there was delay of 194 days. This appeal was dismissed by this Commission, vide order dated 6.5.2011. Against order dated 6.5.2011, appellant filed Special Leave Petition,  before Hon’ble Supreme Court of India and the same was also dismissed on 30.11.2011.

8.       Pursuant to the Execution Application( No. 25 of 2010 in CC No.80 of 2009) filed by respondent no.1 herein, State Commission, on 11.11.2011 passed the following directions;

“In the result R1 to R3 (Ops 1 to 3) are directed to execute the sale deed before the concerned Sub-Registrar on 28.11.2011 and the complainant is directed to bear the necessary registration charges and stamp duty etc.  In the light of the fact that R1 & R2 are ready to execute the sale deed, R3 on failure to join execution of sale deed, sentence as required under Cr.P.C. and Section 27 of the Consumer Protection Act will be passed as it amounts to non-compliance of the order and liable for punishment.  On execution of said document the amount deposited by the complainant will be permitted to be withdrawn by R1 to R3 in order to complete construction and delivery of possession.  Since R1 & R2 are agreeable to pay compensation and costs as ordered, the complainant is directed to receive the same and file the acknowledgement thereof.  Call on 30.11.2011.  Since R3 called absent today at the time of pronouncement of order issued NBWs against him.”

 

9.       Aggrieved by the impugned order, appellant has filed this appeal.

10.     It has been contended by learned counsel for the appellant that appellant had been deprived of being heard on merits in the proceedings.  The observation made in the impugned order that appellant had an opportunity of filing the appeal is legally erroneous. The first appeal of the appellant was dismissed by this Commission only on the ground of limitation and there is no adjudication on merits.  Similarly, Hon’ble Supreme Court has not interfered with the order passed by this Commission and has merely dismissed the Special Leave Petition. Since, there is no adjudication on merits, the impugned order is liable to be set aside.

11.     It is also contended that the complainant has approached the State Commission with unclean hands and has deliberately suppressed the material facts to get the sale deed registered by forging the signatures of the appellant.

12.     On the other hand, it is contended by learned counsel for respondent no.1, that only intention of appellant is to delay the matter and to deprive the fruits of decree to the complainant. The appellant having lost up to the Supreme Court, now wants the matter to be reopened.

13.     As per order dated 6.9.2010 of the State Commission, it is manifestly clear that present appellant was ex parte before the State Commission.  Since, appellant was ex parte before the State Commission, he has no defence on merits.  Thus, a valuable right has accrued in favour of respondent no.1.

14.     All the earlier petitions/appeals filed by the appellant have been rejected by this Commission as well as by the State Commission with well-reasoned orders and also by the Hon’ble Supreme Court.  Now, appellant in the grab of present appeal cannot to be permitted re-open and re-agitate the matter again.  The only purpose of the appellant is to deprive the fruits of decree to the complaint and not to comply with the directions passed by the State Commission.

15.     It is well settled that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, goes on filing meritless petitions in different foras.  Time and again Courts have held that if any litigant approaches the court of equitywith  unclean hands, suppress the material facts, make false averments in the petition and tries to mislead and hoodwink the judicial forums, then his petition should be thrown away at the threshold. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree must be dealt with heavy hands. A strong message is required to be sent to such type of litigants that   this Commission is not helpless in such type of matters.

16.     In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed ;

“Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them.  These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing law’s delay and bringing bad name to the judicial system.”

 

17.     Now the question which  arise for consideration is as to what should be the quantum of costs which should be imposed upon the petitioner for dragging the respondent upto this fora, when petitioner had no case at all.  It is not that every order passed by the judicialforas are to be challenged by the litigants even if the same are based on sound reasonings.

 

18.     Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors., (Civil Appeal Nos.4912-4913 of 2011 decided on July 4, 2011) has observed ;

“45.   We are clearly of the view that unless we ensure that wrong –doers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations.  In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation.  It is a matter of common experience that court’s otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases.

46.   Usually the court should be cautious and extremely careful while granting ex-parte ad interim injunctions.  The better course for the court is to give a short notice and in some cases even dasti notice, hear both the parties and then pass suitable biparte orders.  Experience reveals that ex-parte interim injunction orders in some cases can create havoc and getting them vacated or modified in our existing judicial system is a nightmare.  Therefore, as a rule, the court should grant interim injunction or stay order only after hearing the defendants or the respondents and in case the court has to grant ex-parte injunction in exceptional cases then while granting injunction it must record in the order that if the suit is eventually dismissed, the plaintiff or the petitioner will have to pay full restitution, actual or realistic costs and mesne profits.

47.   If an ex-parte injunction order is granted, then in that case an endeavour should be made to dispose of the application for injunction as expeditiously as may be possible, preferably as soon as the defendant appears in the court.

48.  It is also a matter of common experience that once an ad interim injunction is granted, the plaintiff or the petitioner would make all efforts to ensure that injunction continues indefinitely.   The other appropriate order can be to limit the life of the ex-parte injunction or stay order for a week or so because in such cases the usual tendency of unnecessarily prolonging the matters by the plaintiffs or the petitioners after obtaining ex-parte injunction orders or stay orders may not find encouragement.  We have to dispel the common  impression that a party by obtaining an injunction based on even false averments and forged documents will tire out the true owner and ultimately the true owner will have to give up to the wrongdoer his legitimate profit.  It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have heardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh Vs. State of Punjab (2000) 5 SCC 668 this court was constrained to observe that perjury has become a way of life in our courts.

49.  It is a typical example how a litigation proceeds and continues and in the end there is a profit for the wrongdoers.

50. Learned Amicus articulated common man’s general impression about litigation in following words :

“Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly.  The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road.”

 

Hon’ble Supreme Court further held;

 

“54.    While imposing the costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts.  We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.

55.     The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts.  The appellant in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts  the appellants have also wasted judicial time of the various courts for the last 40 years.

56.     On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well reasoned impugned order/judgment.  These appeals are consequently dismissed with costs, which we quantify as Rs.2,00,000/-. We are imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of rivolous litigation.”

19.     In our opinion, the present appeal is nothing but a gross abuse of the process of law and is frivolous in nature which is required to be dismissed with punitive costs.  Accordingly, we dismiss the present appeal with costs of Rs.1,00,000/- (Rupees One lakhs only).

20.        Out of the costs imposed upon the appellant, Rs.75,000/-(Rupees Seventy five thousand only) be paid to respondent no.1/complainant by demand draft in his name.  Remaining cost of Rs.25,000/- (Rupees twenty five thousand only) be deposited by demand draft in the name of “Consumer Legal Aid Account” of this Commission, within one month from today.

21.     In case, appellant fails to deposit the aforesaid costs within the prescribed period, he shall also be liable to pay interest @ 9% p.a., till realization.

22.     Costs awarded to the respondent no.1/complainant  shall be paid to him only, after expiry of the period of appeal or revision preferred, if any.

23.     Pending application also stands disposed of.

24.     List for compliance on 13th April, 2012.

…………………..……….J

     (V.B. GUPTA)

      PRESIDING MEMBER

 

 

…………………..……….

     (VINAY KUMAR)

Sg.                                                                                                    MEMBER

 

 

 

 

 

 

 

 

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