PER JUSTICE J.M. MALIK

1.       This is unfortunately the case of double innings due to the fault of parties, the complainant particularly and the fora below.  It is difficult to fathom how a State Commission decides the appeals, two times on the same cause of action.

2.       It is now transpired that as a matter of fact the controversy was finally decided by the State Commission on 01.,08.2006 wherein the following order was passed:-

“As a resultant, the appeal of the appellant is partially accepted and the order under dated 17^th April, 1999 is amended as follows:

1. The Respondent appellant should be given possession of the questioned house no. 1/65 at Nimbahera within three months after depositing the outstanding amount.
2. If  the questioned house has been given to any other person during this period, then the respondent appellant, on the amount deposited by him on different-different dates, should pay 12 per cent per annum interest from the date of deposit.”

3.       Arguments heard.  The case of Sh. Hiralal the predecessor of the complainants Jagdish Chander & Anr., is that he had deposited the registration amount for M.I.G. ‘A’ Category house on 11.02.1983.  After that he deposited RS. 28,363/- with the OPs.  He was allotted house No. 1/65 on 28.09.1993. Thereafter, the complainant deposited Rs. 30,575/- on 31.10.1994.  This was agreed between parties that complainant would take the possession and pay the instalments in the sum of Rs. 1795/- per month till 12.12.1994.  The petitioner had deposited a total amount of Rs. 30,663/-The total amount to be paid by the complainant was in the sum of            Rs. 1,15,000/-.

4.       The grouse of the complainant is that he was not given the possession at all.  He also desired that the amount should be returned to him alongwith interest.  However, he was directed to deposit the outstanding amount within three months and the OPs were also asked to pay 12% interest on the deposited amount.  In the meantime, the opponents gave notice to the complainant on 30.1.2006 to pay the monthly instalment and interest Rs.2,95,156/- plus Rs. 43,800/- and penalties.  Total being Rs. 6,27,038/-.

5 .      The second complaint on the same cause of action was filed before the District Forum, wherein the bill in question was challenged. The District Forum directed that the matter should be decided by the Civil Court.

6.       The State Commission, however, accepted the second complaint on the same cause of action filed by the complainant and passed the following order:-

“Therefore, in such situations, accepting this appeal, orders are given that in the annexure-3 issued by the opponents, in sl. No. 4, the amount of interest Rs. 2,95,156/- (in words, Rs. Two lacs ninety five thousand one hundred fifty six) and at sl. No.7, other penalties Rs. 43,800/- (in words forty three thousand eight hundred only) be removed.  Within one month of issuance of notice of amended demand of the balance amount, the complainant shall deposit the amount and he would be given possession of the allotted house number 1/65 in right condition at Nimbaheda City.

          For the mental and financial damages to the complainant, it is appropriate to levy penalties on the opponents for Rs. 1,00,000/- (in words Rs. One lacs only) which shall be paid by the Opponents within 30 days otherwise the opponents shall pay interest on it at annual rate of 12 per cent.  Accordingly the appeal was accepted.”

7.       I have heard the counsel for the parties.  Learned counsel for the respondents/complainants did not pick up a conflict with the following documents.  The complainants were called upon to take the possession of the house within 7 days vide letter written by the OPs on 13.11.1994.  There is a hand-written note by the complainant himself wherein he agreed to take the possession of the premises in dispute vide endorsement 31.03.1995.  It bears the signatures of the complainant wherein it is mentioned that he would pay amount of Rs. 7360/- per month after taking the possession.  It is difficult to fathom as to why did not he take the possession immediately.  Counsel for the complainants submits that he was willing to take the possession but has not shown any document in this regard but mentions about the subsequent documents after 1998.  The record also shows that on 02.09.1997 the OPs wrote to the complainants, clearly, specifically and unequivocally:-

“With regard to the above mentioned subject it is stated that till date you have not taken possession.  Therefore,  it is for the last time through registered post you are being informed that you are required to deposit the entire due outstanding amount and take possession within 7 days and inform the board failing which your allotment would be cancelled for which entire responsibility would be yours.”

8.       This must be borne in mind that the letter was sent after three years later, for possession.  OPs were right in demanding the entire residue amount as well as interest because of lapse of 3 years.  That letter is dated 01.11.1998, which letter in its entirety runs as follows:-

“Subject:  Taking possession of the House No. 1/65. Scheme Nimbahera, City Nimbahera.

Ref: Allotment Letter  No. 3207 dated 31.10.1994.

Sir,

        With reference to the above mentioned subject this office had issued letter No.3207 dated 31.10.1994 for the allotment of House No. 1/65, Scheme  Nimbahera, City Nimbahera according to which an amount of Rs. 30575/- was supposed  to be deposited within one month/three months and possession was to be taken prior to 15.1.1995.  However, you have not deposited the amount till date.  According to the rules of the Board the following amount is due against you:-

Monthly  Ins talments [1/95 to 12/97]                                       64,620/-

Interest on monthly instalments                                               19,924/-

Lease Amount                                                                             3,720/-

Interest on Lease Amount                                                         1,116/-

                                                                                   ----------------------

Total                                                                                          89,380/-

        Therefore from this registered final notice you are informed that within 21 days of issuance of this notice you are required to deposit the abovementioned amount and produce the copy of the challan along with the required documents to the Resident Engineer, RBH, Bhilwara.  Otherwise your allotment will be cancelled for which entire responsibility would be yours.

NOTE;        If you have deposited the monthly instalments then please provide the proof of the same.”

9.       The complainants also took plea before the District forum that in case the complainants are not given the possession, their money be returned alongwith interest.

10.     Thereafter, the outstanding bill was sent which was again challenged by the complainant before the District Forum as a regular complainant.  I am of the considered view that this complaint is not maintainable.  The District Forum, thereafter the State Commission have committed an egregious mistake in entertaining both the complaint and the appeal.   I, therefore, set aside their orders rendered after 1.8.2006. This case should have been decided by the Executing Court, not by filing a regular case before the District Forum.  This is a mistake on the part of the complainant.

11.     It is, therefore, ordered that the order passed by the State Commission dated 01.08.2006 be complied with, strictly by both the parties.  The order passed by the State Commission dated 1.8.2006 has attained finality.  It was never called into question before the National Commission or anywhere else. Prima facie it appears that the bill sent by the OP as per the order dated 1.8.2006 is correct.  I, however, refrain from speaking my piece on this issue and refuse to arrogate to myself the power vested with the Executing Court.  This question can be raised before the Executing Court.

12.     The matter stands disposed of.