S J SD CHHATWAL Vs. PUSHPA BUILDERS LIMITED

JUDGEMENT

(1.) This is an application by the respondent M/s. Pushpa Builders Limited seeking order of this Court to transfer the amount deposited by the respondent Company to the National Consumer Disputes Redressal Commission (in short the National Commission) and to dismiss the Company petition because of the pendency of a petition before the National Commission. The respondent has also raised the objection to the jurisdiction of this Court, because according to it, the pendency of a petition before the National Commission this Court looses its jurisdiction. That amount deposited be not disbursed to the petitioners.

(2.) In order to appreciate the point raised in this application, it must be stated at the outset that there is a chequered history of litigation and round of applications filed by the respondent. This is not the first application of its kind. Number of applications had earlier been filed by the respondent before various Forums seeking modifications of their orders which I would like to pen down here, before I deal with this application on merits.

(3.) Petitioners herein filed petition before the National Commission. The National Commission vide its order dated 21st June,1996 directed the respondent herein to refund the amounts paid by the ten flat buyers alongwith interest at the rate of 18% per annum on that amount from the respective dates of deposit till repayment is made. Three months time was granted to the respondent Company to make the payment to each of the said ten flat buyers. Respondent herein filed an appeal against the said order to the Supreme Court which was listed as Civil Appeal No. 13172/96. The same was dismissed on 13th January,1997. Thereafter respondent filed review application before the National Commission. Same was dismissed by the National Commission vide its order dated 3rd February, 1997 observing that the prayer contained in that application virtually amounted to a request to modify the final order that had been passed by the Commission in the original petition and which could not be done. Accordingly dismissed the application. However, as regards the execution of the order passed, the National Commission granted three months' time to arrange funds and pay to the ten flat buyers. Shri S.J.S. Chhatwal filed a Company petition which was listed as CP. No. 120/94. The said petition stood admitted vide order dated 16th August, 1995. Directions in this petition were to publish the citation in the newspapers and Delhi Gazette. On appeal having been filed by the present respondent against the issuing of citation, stay was granted by the Appellate Authority. But the said appeal was subsequently dismissed. Pursuance to the order of the National Commission respondent deposited a sum of Rs. 37.00 lakhs. This Court vide order dated 16th January, 1998 observed that since substantial sum of money was yet to be paid by the respondent to the flat buyers, therefore, citation should be taken out as per the order dated 16th August, 1995. It was also observed that in case respondent deposit the balance amount within two months for being disbursed to the flat buyers, citation will not be issued. Order of 16th January, 1998 was not complied by the respondent, therefore, this Court vide order dated 19th March, 1998 directed the citation to be taken out and appointed the Official Liquidator as the Provisional Liquidator of the Company. Matter was thereafter taken up on 26th March, 1998 when Mr. Harish Uppal appearing for the respondent Company filed application for review of the order passed by this Court directing issuing of the citation and appointment of Provisional Liquidator. Perusal of order dated 26th March, 1998 shows that Counsel for the respondent/applicant stated that he had paid to the ten flat buyers a sum of Rs. 39,50,000.00 which according to him was more than 53% of the total amount due from the respondent. This position was disputed by Counsel for the petitioners who also pointed out that besides ten flat buyers there were 15 other flat buyers to whom payments were due from the respondent. This Court directed the respondent to pay the balance amount to the flat buyers and gave direction to the Registry to work out the amount due to each of the ten flat buyers in accordance with the order of the National Commission. Registry was also directed to work out the amount due calculating interest at the rate of 18% per annum. In the meantime. Provisional Liquidator was asked not to take over the assets of the Company. The case was, thereafter, adjourned to 2nd April,1998 on which date Mr. Harish Uppal, Advocate appearing for the respondent stated that his client was willing to make further payment due to the ten flat buyers. He also stated that the payment would be made on or before 3rd August,1998. Mr. Harish Uppal also stated that in case the payments were not made within the time granted by the Court, respondent would not oppose the application of the petitioners for winding up of the Company. This statement Mr. Harish Uppal had made on instructions of Mr. H.L. Soin, Director of the respondent company. The flat owners/petitioners agreed for the extension of time for payment of balance amount because their amounts were due since the year 1989. Keeping in view the statement of Counsel for the respondent Mr. Harish Uppal, this Court directed the respondent Company to make payment of the remaining amount to the ten flat buyers on or before 3rd August, 1998. With regard to the other 15 flat buyers directions were given to pay the entire amount after deduction of 20% of the principal amount deposited by them by or before 7th December, 1998. It was also observed that in case payments were not made within the time granted to the respondent, it would not be open to the respondent to oppose the winding up of the Company. Directions were also given to the petitioners to deposit the documents pertaining to the flats in this Court after the receipt of payment from the respondent in accordance with the directions given by this Court. Registry was directed to calculate the interest which the respondent was liable to pay to the ten flat buyers. Rate of interest at the rate of 18% per annum was challenged by the respondent by way of appeal which was listed as LPA No. 324/98. Vide order dated 7th August, 1998, Division Bench of this Court dismissed the appeal. Writ petition filed by the respondent Company challenging the rate of interest has also been dismissed. The Registry pursuance to the order passed by this Court calculated the amounts due and payable by the respondent to the ten flat buyers. It is in this background that we have to see what has been now urged by the respondent.