PER SHRI. S.S. PATIL - HON’BLE MEMBER :

1) This is an execution application of the Applicant in respect of an order of the Hon’ble Consumer Disputes Redressal Commission Maharashtra State (Hon’ble State Commission for brevity) in 1st Appeal No.2341/06 filed under Section 25 of the Consumer Protection Act, 1986. Originally in this case the Applicant had filed a Complaint No.161/2000 before this Forum. The said complaint was dismissed by this Forum on 18/08/2006. Aggrieved by this order, the applicant then filed 1st Appeal No.2341/2006 before the Hon’ble State Commission (The applicant has erroneously referred this Forum as Consumer Disputes Redressal District Forum, Suburban Division, in the Execution Application). This appeal 2341/06 was allowed by the Hon’ble State Commission vide its order dtd.29/08/08.

2) Being aggrieved by the order of the Hon’ble State Commission, Maharashtra State, the Appellant (Opposite Parties) preferred Revision Petition No.4574/2008 before the Hon’ble National Consumer Dispute Redressal Commission. This Revision Petition was dismissed vide order dtd.12/12/08. No appeal was preferred in the Hon’ble Supreme Court, making the order of the Hon’ble State Commission (dtd.29/08/2008) absolute.

3) Thereafter, the applicant sent a notice to Opposite Parties to comply with the order of the Hon’ble State Commission in Appeal No.2341/06 dtd.29/08/08. This notice was sent on 19/06/09. However, the Opposite Parties failed to comply with the order of the Hon’ble State Commission. Therefore, the Complainant filed an execution application No.48/2009 before this Forum. (It is noted that the Complainant has not attached the copy of this Execution Application in this matter).

4) The Complainant has stated that the Opposite Parties partly complied with the said order dtd.29/08/08 in First Appeal No.2341/06, as they delivered the new brand car and paid compensation of Rs.1 Lac and cost of Rs.10,000/- on 16/01/2010. Here, the Complainant has made a false statement. In fact the pursis of the Complainant signed by him and his Ld.Advocate is on record (dtd.18/01/2010) stating that “the execution application (48A/09) is disposed of fully satisfied.”

5) Further the Complainant has stated in this Execution Application that as per the direction No.3 of the said order dtd.29/08/08, passed in F.A. No.2341/06, the Complaint No.161/2000 was allowed wherein the Complainant had prayed for interest @ 21% p.a. on the amount of R.4,37,616/- paid by the Complainant. As the Opposite Parties did not pay the amount of interest on the sum of Rs.4,37,616/-, the Complainant sent a notice dtd.24/04/2010 to the Opposite Parties calling upon them to pay the interest amount of Rs.34,37,566/- till March, 2010. However, the Opposite Parties did not pay the said amount. Hence, the Complainant filed a complaint bearing No.65/2011 before the Hon’ble State Commission. The Hon’ble State Commission dismissed the said complaint vide its order dtd.29/03/2011.

6) The Complainant has stated in this Execution Application that the Hon’ble State Commission observed “The said order dtd.29/08/08 passed in F.A. No.2341/06 is partly complied with and the interest claimed by me has to be claimed by way of execution application before the Forum.” The Complainant further averred that “as such, I have preferred the present application.”

7) In the execution application columns the column no.7, the question printed is erroneous. It is printed as follows –

      “Whether previous Execution Forum or the Appellate Forum (Commission) is complied with by the Opposite Party, if so    

     state its particulars/details and date of such compliance”

8) Column No.8 of execution application the question is as follows –

      “Whether previous execution application is filed if so no. of such execution application is pending or disposed of. If disposed

     state the nature of the order passed and date of such order.”

       The answer stated to this question is absolutely false. The Complainant has filed a complaint vide Complaint No.65/2011. It is not an Execution Application. The Complaint No.65/2011 was dismissed by the Hon’ble State Commission observing that “any issue relating to the non-compliance of the said order (order dtd.29/08/08) needs to be taken for execution before the Forum only. Hence, the complaint No.65/2011 was dismissed.”

9) In column No.10 of the Execution Application the Complainant was supposed to give the description of the immovable property sought to be attached but the Complainant has given only the address of Opposite Party. In column No.11 (c) of the Execution Application the applicant has mentioned the interest till 31/08/2011 on principal amount of Rs.4,37,616/- as Rs.37,49,067/-. There is no prayer that this amount should be recovered or order may be passed to recover the amount or it is nowhere mentioned as to which amount should be recovered from the Opposite Parties.

10) The notices of the execution application were served on the Opposite Parties. Opposite Parties appeared before this Forum through the Ld.Advocate and filed their reply wherein they specifically prayed to peruse the order in Execution Application No.48A/09 for proper disposal of the present Execution Application.

11) The Opposite Parties have mentioned the original prayers of the Complainant in Complaint No.161/2000. They were as follows –

“a) Handing over possession of vehicle with warranty from the date of handing over physical possession of the vehicle.

 b) Depreciation cost of vehicle @ 20% from 18/10/99 or replace with latest model.

 c) Rs.1 Lac compensation.

 d) Interest @ 10% on loan taken by the Complainant from Standard Chartered Bank.

e) Cost of the complaint.”

12) The Opposite Parties have further stated that the State Commission in its order dtd.29/08/08 allowed the Appeal No.2341/06 with the direction that –

               a) the respondents (Opposite Parties) to give immediate delivery of vehicle in question with usual warranty commencing

              from the date of delivery.

               b) Opposite Parties to ensure that each & every part of the vehicle is brand new one at the time of delivery.

              c) Opposite Parties to pay one lac to the Complainant as compensation.

              d) Opposite Parties to pay Rs.10,000/- to the Complainant as costs.

13) Therefore, Opposite Parties filed revision petition in Hon’ble National Commission. The R/P was dismissed. Thereafter the Complainant filed an Execution Application No.48(A)/09 praying for

      1) Immediate delivery of vehicle in question with each and every part of the vehicle brand new.

      2) Rs.1 Lac compensation.

      3) Rs.10,000/- costs.

14) In compliance with the order of the State Commission, Opposite Parties paid Rs.1,10,000/- through cheque and a brand new Quadra jet Aura Car was handed over to the Complainant. Therefore, the Complainant filed a pursis dd.18/01/2010 before this Forum stating that the Opposite Parties have complied with the order dtd.29/08/08 of the Hon’ble State Commission and the Complainant further prayed to dispose of the Execution Application No.48(A)/09 as fully satisfied. As per the pursis, this Forum disposed of the said Execution Application NO.48A/09 vide its order dtd.18/01/2010 as fully satisfied.

15) After disposing of the said Execution Application No.48A/09, as fully satisfied the Complainant again sent his legal notice dtd.29/04/2010 demanding Rs.34,37,566/- by way of interest. The Opposite Parties have specifically stated that, the Hon’ble State Commission had never allowed any interest while allowing the appeal No.2341/2006.

16) Thereafter, the Complainant filed another complaint No.65/2011 before the Hon’ble State Commission for payment of Rs.34,37,566/-. But the said complaint was dismissed by the Hon’ble State Commission.

17) The Opposite Parties have further submitted that, in column 7 of this Execution Application the Complainant has admitted that Execution Application No.48A/09 is complied with and disposed of in view of the compliance. The Complainant is not entitled to any amount prayed for as the entire order of the Hon’ble State Commission in F.A. No.2341/06 has been complied with. The Complainant himself has confirmed the compliance by way of his pursis dtd.18/01/2010 filed before this Forum and this Forum has disposed of the E.A. No.48A/09 as fully satisfied. Therefore, nothing remains to be complied with. Therefore, E.A.No.75/2011 deserves to be dismissed with cost of Rs.10,000/- under Sec.26 of the Consumer Protection Act, 1986.

18) We heard the Ld.Advocates of both the parties and perused papers submitted by them. Our findings are as follows-

         The order of the Hon’ble State Commission in F.A. No.2341/06 dtd.29/08/06 is an absolute order. The operative part of the said order is as follows –

        1) Appeal is allowed.

     2) The impugned judgment and order passed by the Dist. Forum South Mumbai dismissing the complaint is hereby  

         quashed and set aside.

       3) The complaint is allowed.

       4) The respondents are hereby directed to give immediate delivery of the vehicle in question to the appellant/original

          Complainant with usual warranty commencing from the date of delivery.

       5) While giving delivery of the vehicle, the Respondents are directed to ensure that each and every part of the vehicle is

          brand new one.

        6) The Respondents are further directed to pay Rs.1 Lac to the Appellant by way of mental agony and hardship he was required to

          go through all these years.

        7) The Respondents are further directed to pay Rs.10,000/- to the Appellants as cost of original complaint and this appeal

          and bear their own cost.

19) We scrupulously examined this order of the Hon’ble State Commission and observed that the Respondents (Opposite Parties) are directed to comply with points 4, 5, 6 & 7. The Opposite Parties have complied with these points as per the pursis of the Complainant dtd.18/01/2010 on the strength of this pursis only this Forum has disposed of the Execution Application No.48A/09 on 18/01/2010.

20) The Complainant had filed an execution application No.48A/09 to comply with the order of the Hon’ble State Commission in F.A. No.2341/06, dtd.29/08/06. This order of the Hon’ble State Commission was complied with by the Opposite Parties as per the pursis of the Complainant himself. The Execution Application No.48A/09 was disposed of as fully satisfied. Despite of these facts being on record, the Complainant has again filed Execution Application No.75/2011 on the same cause of action. This is nothing but the misuse of the Consumer Protection Act, 1986.

21) The Complainant had paid Rs.4,37,616/- in order to purchase a new brand car. It was found defective. Dispute arose between the parties. It was settled by paying new brand car for the said consideration alongwith an extra amount of Rs.1 Lac with cost of Rs.10,000/-. Nowhere the Hon’ble State Commission has mentioned about 21% interest p.a. on Rs.4,37,616/- to be given to the Complainant. Still the Complainant makes this Execution Application demanding Rs.37,49,067/- till 31/08/2011.

22) The Complainant has not attached the copy of the Execution Application No.48A/09. He suppressed the pursis dtd.18/01/2010 filed by him before this Forum. He suppressed the order of this Forum dtd.18/01/2010 disposing of the Execution Application as fully satisfied. Therefore, in our candid opinion the Execution Application is frivolous as well as vexatious and therefore, deserves to be dismissed with cost. Hence, we pass the order as follows -

     ii. Certified copies of this order be furnished to the parties.