Per Shri P.N. Kashalkar, Hon’ble Presiding Judicial Member
By this common order, we are disposing of these two appeal Nos.RBT/A/11/826 & 827. Both these appeals have been filed by wife and husband against M/s.Chanakya Construction through its Proprietor Mr.Vikra, Vijay Gosavi, who is resident of Satara.
2. Both these appellants had filed consumer complaint Nos.211 & 212/2006 and complaints were allowed and opponent was directed to refund amount of `6,85,000/- to the complainant-Sou. Swati Shriniwas Wathare and in another complaint, opponent was directed to pay `7,35,000/- to the complainant-Shri Shriniwas Wathare by the award passed by the District Consumer Disputes Redressal Forum, Satara. Against that award, org. opponent has filed appeals and same were dismissed by this Commission, against which M/s.Chanakya Construction had gone in Revision Petition, which was also dismissed by the National Commission and therefore, award became final.
3. Both the complainants who are appellants herein filed execution proceedings in District Consumer Disputes Redressal Forum, Satara for recovery of the dues. They filed Execution Application Nos.78 & 79/2007. In the said applications, Exhibit-69 was filed in Execution Application No.78/2007 and prayer was made that non-bailable warrant should be issued against the judgement debtor since he had not complied with the order. District Consumer Disputes Redressal Forum mentioned in the order below Exhibit-69 passed in Execution Application No.78/2007 that while allowing the complaint, District Consumer Disputes Redressal Forum had permitted org. opponent to sell the flat allotted to the complainant, since said flat cannot be sold by the judgement debtor for the reason that the decree holder has taken loan of IDBI Bank mortgaging said flat for securing loan. District Consumer Disputes Redressal Forum found that since the judgement debtor had made payment of `7,10,000/- covering both Execution Applications, no further action could be taken because the decree holders were not co-operating with the judgement debtor to sell the flats to third party since decree holders were not paying all the outstanding loan dues to the IDBI Bank and this created impasse between the parties and therefore, applications for taking further action against the judgement debtor were rejected by passing order below Exhibit-69 and also Exhibit-71 disposing off the execution applications itself. The same observations were made in the order below Exhibit-69 and also below Exhibit-71. Aggrieved by this order, these two appeals came to be filed. These appeals were filed under Section 15 of Consumer Protection Act, 1986 and this Commission by passing common order in Appeal Nos.922 and 923/2010 on 04/03/2011 dismissed the appeals since they were filed under Section 15 of the Consumer Protection Act, 1986, but granted relief to the appellants by exercising Suo-Motu Revision powers vested with us and thereby, we quashed the order of dismissal passed by the District Consumer Disputes Redressal Forum and restored the Execution Applications back to file and directed the District Consumer Disputes Redressal Forum to initiate Execution Applications under Section 27 of the Consumer Protection Act, 1986 and continue it till the award passed in both the complaints are fully satisfied. This order of exercising Suo-Motu Revision was challenged by the judgement debtor by filing Revision Petition. The Hon’ble National Commission allowed the Revision Petition and directed this Commission to dispose of these appeals on merits than to exercise Suo Motu Revision powers and that is why these appeals are again back to us for disposal in accordance with the law.
4. We heard appellant in Appeal No.RBT/A/11/827-Mr.Vathare in person along with his Advocate Mrs.Warunjikar and Mr.Balasaheb Deshmukh, Advocate for the respondent as also respondent-Mr.Vikram Gosavi who is also present in person.
5. We are finding that by making applications below Exhibit Nos.69 & 71 in both the Execution Applications, the appellants wanted that the amount deposited by the judgement debtor be given to them, but instead of passing the order directing to pay the said amount, District Consumer Disputes Redressal Forum observed that flats in question booked by the decree holders with the judgement debtor were under mortgage by way of security to the loan given by IDBI Bank, Satara and complainants/decree holders were not taking steps to discharge said loan and thereby the judgement debtor is not in a position to sell the flats booked earlier by the complainants when the complainants are seeking refund in terms of order passed by the District Consumer Disputes Redressal Forum, Satara in main complaints. District Consumer Disputes Redressal Forum on finding obstinate attitude of the appellants not only dismissed Exhibit Nos.69 & 71, but also dismissed Execution Applications when both these execution proceedings were not fully satisfied. So, order passed by the District Consumer Disputes Redressal Forum below Exhibit No.69 & 71 in both these Execution Applications are per se bad in law and cannot be allowed to sustain in law. So, by allowing these appeals, execution proceeding Nos.78 & 79/2007 will have to be restored back on the file of District Consumer Disputes Redressal Forum, Satara with a direction to permit decree holders to take the amount deposited by the judgement debtor pursuant to the order passed by the Hon’ble National Commission in the Revision Petition, mentioned supra. The District Consumer Disputes Redressal Forum is required to be directed that both these execution proceedings should be kept live till every farthing payable to the consumer complainants/decree holders is paid by the judgement debtor/respondent herein. For that purpose, both these appeals will have to be allowed to restore Execution Proceeding Nos.78 & 79/2007 back on the file of District Consumer Disputes Redressal Forum, Satara.
6. Before parting with the judgement, we have to mention here that both the parties are adamant and District Consumer Disputes Redressal Forum while allowing the complaints had not passed proper effective order settling equity between the parties. District Consumer Disputes Redressal Forum simply directed under the award to refund amount deposited by Mrs.Swati S. Wathare towards purchase of flat and amount deposited by Mr.Shrinivas P. Vathare also towards purchase of flat. But in operative part, District Consumer Disputes Redressal Forum Wathareed opponent to sell the flats belonging to the complainants, if necessary and also permitted opponent to mortgage said flats for taking loan. It is this order which is coming in the way of smooth disposal of execution proceedings. We are of the view that while allowing the execution proceedings, decree holders will have to cancel agreement of sale executed in their favour by the judgement debtor and they will have to clear the loan taken from IDBI Bank by mortgaging those flats. So, payment of dues as per the award and complainants clearing the dues and leaving encumbrance of the Bank will have to be done simultaneously by the Executing Court after these Execution Proceedings are restored back to file of the District Consumer Disputes Redressal Forum. Hence, the following order :-
-: ORDER :-
1. Both appeals are allowed.
2. The impugned order passed below Exhibit-69 & 71 stands dismissed.
3. Execution Proceeding Nos.78&79/2007 which had been disposed off by the District Consumer Disputes Redressal Forum are restored back to file. Learned District Consumer Disputes Redressal Forum is directed to continue with the Execution Proceeding Nos.78&79/2007 till full amount as per the award is paid by respondent herein.
4. Both parties are directed to appear in both Execution Proceedings on 16/01/2012 before the District Consumer Disputes Redressal Forum.
5. No order as to costs.
6. Copies of the order be furnished to both the parties.
Pronounced
Dated 2nd December 2011.
