This appeal has been filed by the appellant, Manish Kumar against the order dated 7.3.2008 passed by the State Commission, Karnataka, Bangalore  in C.C.No.43 of 2007.

2.      Brief facts of the case are that the appellant/complainant entered into a sale agreement on 15.5.2007 and the total consideration of flat was Rs.26,80,000/-. The possession was given by the OP. The complainant alleged that the flat was not in a habitable condition and it was looking like a second hand flat. It is the allegation of the complainant that the OP only white washed the walls and handed over the possession to the complainant. Not satisfied with the flat, the complainant filed a consumer complaint no.43/2007 before the State Commission.

3.      The OP resisted the complaint. The Managing Director and Chairman of the OP firm were present on 7.3.2008 before the State Commission and on the same day  the State Commission passed the following order:

  “After hearing for some time, the complainant has no objection to re-convey the said Flat in favour of the OP provided the OP is directed to refund the amount of Rs.26,80,000/-

  The Learned counsel appearing for the OP agreed to refund the money provided if the complainant were to execute the Sale Deed in favour of the OP at the cost of the OP in respect of the flat referred to above.  Hence, this Complaint is disposed in the following terms.

ORDER

       “The complainant is directed to execute the Sale Deed in respect of Flat bearing No.L-112 of Ittina Properties situated at Kasavanahalli Village, Varthur Hobli, Bangalore in favour of the OP, at the cost of the OP on receipt of Rs.26,80,000/-  at the time registration before the Sub Registrar.”

4.      Learned counsel for the complainant stated that complainant had nowhere agreed that he was foregoing all the remaining reliefs prayed in the complaint. He has only agreed to return the flat and get back his payment. The compensation and the interest on the deposited amount have not been ordered by the State Commission nor any observation has been made in this regard. As the money of the complainant remained with the OP, the OP is required to pay interest on this amount. Moreover, the complainant is also entitled to compensation for the harassment and mental agony that he has suffered  during the whole process of allotment and re-conveying of the property. The learned counsel further argued that there is no compromise in writing and recording of commitment on the part of the complainant as recorded in the order of the State Commission is not totally correct.  The learned counsel referred to the following case law to prove his point:-

Gurpreet Singh Vs. Chatur Bhuj Goel, AIR 1988 SC 400.  It has been held that:-

“10.  Under Rule 3 as it now stands, when a claim in suit has been adjusted wholly or in part by any lawful agreement or compromise, the compromise must be in writing and signed by the parties and there must be a completed agreement between them.  To constitute an adjustment, the agreement or compromise must itself be capable of being embodied in a decree.  When the parties enter into a compromise during the hearing of a suit or appeal, there is no reason why the requirement that the compromise should be reduced in writing in the form of an instrument signed by the partiers should be dispensed with.  The Court must therefore insist upon the parties to reduce the terms into writing.”  

5.      On the other hand, learned counsel for the respondent stated that the flat was in good condition. However, the appellant wanted his money back even before the order was passed by the State Commission as would be clear from the affidavit filed by the complainant.

6.      Learned counsel has further stated that there has been no delay in even refunding the amount as ordered by the State Commission. The order of the State Commission was conditional and when the re-conveying of the flat was done, the money was refunded.  It was further pointed out by the learned counsel for the appellant that the appellant had also filed an execution application wherein even the Managing Director of the OP firm had to go to Jail.  This execution application was filed without any permission of this Commission where the appeal was pending. In compliance of this order of the State Commission as well as under the execution application,  the amount as ordered by the State Commission has already been refunded on 19.9.2011.  The delay in this payment has been caused due to the reason that first of all against the impugned order, the appeal was filed by the complainant and the complainant has taken time in re- conveying the flat as ordered by the State Commission. The learned counsel further mentioned that the original sale deed has not yet been  returned by the complainant and his money was withheld for return of the original sale deed. However, when the execution application was filed and Managing Director of the OP firm was jailed, the total amount awarded was paid, even though the OP has not yet received the original sale deed from the complainant. It was also argued that once the order passed by the State Commission has been executed on the execution application filed by the complainant, this appeal has become infructuous and needs to be  dismissed.

 7.     I have carefully perused the documents and have given a thoughtful consideration to the arguments advanced by both the parties.

8.      Admittedly, the property was in possession of the complainant and opposite party could not make use of the property during the period from first conveyance in favour of the complainant and then reconveyance in favour of the opposite party. Whether the complainant lived in this flat or not and whether he has given this property on rent or not, the fact is that the property was with the complainant himself and therefore, for this period complainant cannot claim any interest on the deposited amount.  Moreover, the complainant on the one hand had filed appeal against the State Commission order and on the other hand, preferred execution of the same State Commission order, wherein the opposite party was jailed and opposite party had to pay all the payment as ordered by the State Commission. This execution was proceeded with by the complainant/appellant without obtaining any permission from or without giving any information to this Commission.  A perusal of the prayer made in the appeal shows that the appellant has asked for setting aside of the order of the State Commission. So, if the appeal of the appellant is allowed and order of the State Commission is set aside, then what will happen to the execution of the State Commission order, which has already materialized.  As the appellant/complainant has already taken money after execution, the order of the State Commission cannot be set aside now.  Accordingly nothing remains to be decided in respect of the consumer complaint No.43 of 2007 as the order passed by the consumer forum has already been implemented.  In these circumstances, the appeal is not sustainable.

9.      Based on the above discussion, I do not find any merit in the appeal and the same is dismissed.