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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
A.P. Sahi, President
New Okhla Industrial
Development Authority – Appellant
versus
Noida Management
System Pvt. Ltd. – Respondent
First Appeal No.388 of 2013
(Against the Order dated 04/04/2013 in Complaint No.12/2012 of the State Commission Uttar Pradesh)
Decided on 3.1.2024
Consumer Protection Act, 1986 – Section 19 [Consumer Protection Act, 2019 – Section 51] – Appeal against Execution – Remand of Proceedings - Complainant in the Execution Application had alleged about undue influence being exercised and which was categorically denied in the Affidavit of the Appellant/Opposite Party. The Executing Court did not choose to investigate these allegations or attempt to record any finding of coercion, undue inference or pressure being exercised by the Appellants. In the absence of any such findings which ought to have been indicated about the impact of the subsequent settlement made between the parties through the offer of the Complainant and its acceptance by the Appellant, the impugned Order cannot be sustained. In the absence of any such analysis, discussion or conclusion thereafter on reasons to be recorded, the inference of harassment by the Executing Court is unsustainable – Appeal allowed, matter remanded. [Paras 4 to 24].
Result: Appeal allowed.
ORDER
The Appeal arises out of an Order dated 04.04.2013 passed during execution in Execution Petition No.12/2012 arising out of Complaint No.20/2010 decided by the State Consumer Disputes Redressal Commission, U.P. on 27.09.2011.
2. A development took place immediately thereafter. The file was processed by the Appellant Authority and a proposal was made to prefer an Appeal against the Order of the State Commission. On 12th of December, 2011, the Complainant moved an application before the Appellant Authority that since the allotted plot could not be delivered as the encroachment had not been removed, hence an alternative equivalent plot be allotted. In that event, the Complainant offered to waive off the demand of 18% interest and the damages of Rs.10 lacs as awarded by the State Commission. The said letter dated 12.12.2011 as translated by the Appellant is extracted hereunder:—
“To,
Hon’ble Chief Executive Officer, Noida
Sub: Consent letter for allotment of another plot equal to Industrial Plot No. B-7, Sector-68.
Sir,
It is requested that the Applicant was allotted Industrial Plot No B-7, Sector 68, area 4000 square meter for I. T. Project on 08.01.2007, the lease deed of which on 30.5.2008 executing in favour of the Allottee on 05.06.2008 possession letter had been given. On the plot on the dispute of physical possession the Applicant had filed Complaint No. 30/2010 M/s Noida Management System Pvt. Ltd. versus NOIDA before the State Consumer Forum, Lucknow. By the Order dated 27/09/2011 the State Forum had ordered to remove the encroachment from the said plot within 30 days handed over the possession. In case of the encroachment is not removed order was passed in the alternative equal plot was directed to be given on the amount deposited by the Applicant against the said plot be given 18% interest per annum along with rupees ten lakhs as damages.
The Applicant from 2007 is harassed in the above case. The Applicant actually wants to implement the Project. If the Authority in place of above plot equivalent other alternative plot is allotting then the Applicant in the context of Order passed by the State Consumer Forum will not make demand of 18% interest per annum and the damages of rupees ten lakhs and would be bound by the said statement. Besides this will not make demand of any other kind of damages/amount.
On the basis of the above facts allowing the Application of the Applicant may kindly be allotted another alternative plot. The Applicant will always remain obliged.
Applicant
Sd/- illegible
M/s Noida Management System Pvt. Ltd.
B-07, Sector-68, Noida.”
The said letter was accompanied by an Affidavit swearing the same paragraphs which is on record as Annexure-4.
3. The fact of the aforesaid application/letter and Affidavit was also noticed by the Executing Court in the impugned Order dated 04.04.2013 but it was held that such an undertaking reflects on the negligent and deficient attitude of the Authority that resulted in the harassment of the Complaint. Accordingly, the Execution Application was allowed and the Authority was called upon to submit the calculation as per the final Order dated 27.09.2011 within a fortnight and in the absence of any compliance, process would be undertaken under Section-25 r/w Section-27 of the Consumer Protection Act, 1986.
4. Pursuant to the aforesaid offer, the same was accepted by the Authority vide letter dated 19.12.2011, the translation whereof as on record is extracted hereunder:—
“Chief Executive Officer
Chief Administrative Bhawan.
Sector-6, Noida, Gautambuddh Nagar.
Letter No. Noida/M.Pr(I)/2011/6226
Dated 19.12.2011
M/s Noida Management System Pvt. Ltd.
B-107, Sector-68, Noida.
Sub: In respect of allotment another plot equivalent to Industrial Plot No. B-7, Sector-68, Noida.
Sir,
Kindly refer to your letter dated 12.12.2011 by which you in respect of the equivalent plot under reference in respect of the Complaint No. 20/10 filed by you before the Hon. State Co
Executing Court - The Executing Court did not choose to investigate these allegations or attempt to record any finding of coercion, undue inference or pressure being exercised by the Appellants.
Settled law that Executing Courts cannot go behind the Decree
Consumer Commission retains jurisdiction over complaints despite IBC proceedings, affirming consumer rights in property allotment without requiring a physical allotment letter.
Cancellation of allotment of plot – No deficiency in service as no claim for allotment of alternative plot made by Complainant.
The main legal point established in the judgment is the jurisdiction of the State Commission under the Consumer Protection Act and the power of the High Court under Article 227 of the Constitution of....
Appeal Execution – The impugned Order against which the present Appeal Execution has been filed cannot be termed to be an Order passed under Section 17 of the Consumer Protection Act, 1986 at all.
Non-availability of the Occupancy/Completion Certificate points to the deficiency on the part of the Appellant.
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