M/S D S S Buildtech Pvt Ltd v. Manoj Kayal

1. Allowed, subject to all just exceptions. Application is disposed of. CM(M) 1701/2019 & CM APPL. 51535/2019

2. The present petition under Article 227 has been filed challenging the impugned order dated 30th October, 2019 passed by the NCDRC. The said order reads as under:- “We have partly heard the learned counsel for the appellants on admission, and perused the entire material on record including inter alia specifically the impugned Order dated 09.01.2019 of the State Commission. The State Commission vide its impugned Order dated 09.01.2019 had allowed the complaint. We note in particular paras 13 and 14 of the said Order dated 09.01.2019 of the State Commission. in the facts and unsavoury specificities of the case, we deem it appropriate that; [a] the entire decretal amount (with clear and cogent calculation sheet) shall be deposited by the appellants builder co. before the State Commission at the earliest and [b] the chief executive of the appellants builder co. shall file a 2019:DHC:7284 report, supported with affidavit, on the whole matter, on the basis of its record, through counsel. The said report shall inter alia be perused while concluding arguments on admission. On a question from the bench, learned counsel for the appellants builder co. submits that it would require four weeks to file the requisite report supported with affidavit from the chief executive of the appellants builder co. The learned counsel for the appellants builder co. is requested to bring this instant Order to the notice of the chief executive of the appellants builder co. at the earliest. And, the chief executive of the appellants builder co. shall file a report on the whole matter, supported with affidavit, on the basis of its record, within four weeks from today, without fail, through counsel. The Registry is directed to send a copy of this Order to the chief executive of the appellants builder co. (D.S.S. Buildtech Pvt. Ltd.) within seven days. Contingent to (and subsequent to) the entire decretal amount (with clear and cogent calculation sheet) being deposited by the appellants builder co. with the State Commission, the operation of the impugned Order of the State Commission shall be stayed. The amount deposited shall be kept in the shape of an FDR initially for a period of one year to be renewed regularly. It is made explicit that we have as yet not issued notice to the respondent in this case. List on 20.12.2019 for concluding arguments on admission.”

3. The grievance of ld. counsel for the Petitioner is that the State Commission’s order dated 9th January, 2019 which was challenged in the appeal filed by the Petitioner before the NCDRC has been directed to be complied with in full, and further directions have been issued, asking for the report of the Chief Executive, even without notice being issued in the appeal or the appeal being admitted. It is submitted that a perusal of the order makes it clear that the ld. Bench of NCDRC categorically states that no notice has been issued in the matter but the entire decretal amount has been directed to be deposited as a condition for grant of stay. He further submits that the ld. Bench of NCDRC, which passed the instant order, does not have a judicial member as per Regulation 12 of the Consumer Protection Regulations, 2005. He further points out to this Court that on the same very day, another order has been passed in FA 1032/2019 between completely different parties wherein the order passed by the NCDRC is identical except for factual corrections as to dates.

4. The Court has perused the impugned order of the NCDRC dated 30th October, 2019. As per the said order, the appeal of the Petitioner has not yet been admitted, as is clear from the sentence reading “the said report shall inter alia be perused while concluding arguments on admission.” Thus, the admission of the appeal is yet to happen. The last but one paragraph of the order also makes it clear that no notice has been issued to the Respondent. However, the entire decretal amount has been directed to be deposited as a condition for stay, which ld. counsel submits is premature, inasmuch as unless and until the NCDRC takes a decision for admission of the appeal or issuance of notice, the condition for deposit cannot be made and, in fact, even stay cannot be granted.

5. The identity of two orders in two completely different matters is absolutely startling. A perusal of the order of the same very date passed in FA No. 1032/2019 titled M/S. Taneja Developers & Infrastructure v Varun Gupta shows that the same is verbatim to the impugned order except as to some dates. The comparative table of the two orders is set out below:- F.A. No. 1115/2019 F.A. No. 1032/2019 “The State Commission vide its impugned Order dated 09.01.2019 had allowed the complaint. We note in particular paras 13 and 14 of the said Order dated 09.01.2019 of the State Commission. In the facts and unsavoury specificities of the case, we deem it appropriate that; [a] the entire decretal amount (with clear and cogent calculation sheet) shall be deposited by the appellants builder co. before the State Commission at the earliest and [b] the chief executive of the appellants builder co. shall file a report, supported with affidavit, on the whole matter, on the basis of its record, through counsel. The said report shall inter alia be perused while concluding arguments on admission. On a question from the bench, learned counsel for the appellants builder co. submits that it would require four weeks to file the requisite report supported with affidavit from the chief executive of the appellants builder co. The learned counsel for the appellants builder co. is requested to “The State Commission vide its impugned Order dated 20.02.2019 had allowed the complaint. We note in particular paras 12 and 13 of the said Order dated 20.02.2019 of the State Commission. In the facts and unsavoury specificities of the case, we deem it appropriate that; [a] the entire decretal amount (with clear and cogent calculation sheet) shall be deposited by the appellant builder co. before the State Commission at the earliest and [b] the chief executive of the appellant builder co. shall file a report, supported with affidavit, on the whole matter, on the basis of its record, through counsel. The said report shall inter alia he perused while concluding arguments on admission. On a question from the bench, learned counsel for the appellant builder co. submits that it would require four weeks to file the requisite report supported with affidavit from the chief executive of the appellant builder co. The learned counsel for the appellant builder co. is requested to bring this instant Order to the notice of the chief executive of the appellants builder co. at the earliest. And, the chief executive of the appellants builder co. shall file a report on the whole matter, supported with affidavit, on the basis of its record, within four weeks from today, without fail, through counsel. The Registry is directed to send a copy of this Order to the chief executive of the appellants builder co. (D.S.S. Buildtech Pvt. Ltd.) within seven days. Contingent to (and subsequent to) the entire decretal amount (with clear and cogent calculation sheet) being deposited by the appellants builder co. with the State Commission, the operation of the impugned Order of the State Commission shall be stayed. The amount deposited shall be kept in the shape of an FDR initially for a period of one year to be renewed regularly. It is made explicit that we have as yet not issued notice to the respondent in this case. List on 20.12.2019 for concluding arguments on admission.” bring this instant Order to the notice of the chief executive, of the appellant builder co. at the earliest. And, the chief executive of the appellant builder co. shall file a report on the whole matter, supported with affidavit, on the basis of its record, within four weeks from today, without fail, through counsel. The Registry is directed to send a copy of this Order to the chief executive of the appellant builder CO. (M/s Taneja Developers and Infrastructure) within seven days. Contingent to (and subsequent to) the entire decretal amount (with clear and cogent calculation sheet) being deposited by the appellant builder co. with the State Commission, the operation of the impugned Order of the State Commission shall be stayed. The amount deposited shall be kept in the shape of an FDR initially for a period of one year to be renewed regularly. It is made explicit that we have as yet not issued notice to the respondent in this case. List on 18.12.2019 for concluding arguments on admission.”

6. A perusal of the impugned order and the order extracted above shows that the NCDRC appears to be passing identical templated orders in such matters and the same is inexplicable. Ld. counsel for the Petitioner, after enquiring from the counsel in the Taneja case, submits that the factual context of these two cases, are completely different.

7. The passing of such identical templated orders by the NCDRC is a matter of grave concern as it may reflect non-application of mind. Considering that the factual scenarios are different in the two matters, such orders by any forum would be wholly unacceptable.

8. Considering the above background, it is directed that the records of these two appeals being FA No. 1115/2019 titled M/s D.S.S Buildtech Pvt. Ltd and Others v. Manoj Kayal and FA No. 1032/2019 titled M/S. Taneja Developers & Infrastructure v Varun Gupta be called for on the next date. The present order shall be communicated to the Registrar General of the NCDRC, in order to produce records of these two cases on the next date of hearing. The operation of the impugned order shall remain stayed till the next date.

9. At this stage Ld. Counsel for the Complainant/Respondent has entered appearance. Let a copy of the paper book be supplied to him. Before the next date, ld. counsel for the Petitioner to also seek instructions as to the status of the construction of the project of the Petitioner in order for this Court to balance equities between the parties. The State Commission shall adjourn the matter in the meantime.

10. List on 19th December, 2019.

PRATHIBA M. SINGH JUDGE NOVEMBER 29, 2019 MR