ORDER
(18th January, 2011)
Per Mr.Justice S.B.Mhase, Hon’ble President
1. Heard Mr.A.A.Dhumal-Advocate for the appellant.
2. This appeal is directed as against the order dated 16/11/2010 passed below Exhibit 11 in Execution Application no.200/09 arising from the original complaint no.117/04. By this order the execution application no.200/09 has been dismissed because the District Consumer Disputes Redressal Forum is not in a position to proceed for execution. This order has been passed by the District Consumer Disputes Redressal Forum, Thane in the following circumstances:-
3. The consumer complaint no.117/04 was filed by the present appellant in the District Consumer Disputes Redressal Forum, Thane. The complainant was owner of C.T.S. nos.232 & 233 and house no.61 situated at Bhayandar, District Thane. Said property was in a dilapidated condition. Opponent being a builder and developer approached to the appellant/ complainant and there was a development agreement between appellant and respondent on 19/11/1999. It appears that as per said agreement the construction work was to be completed within a period of two years and the time was essence of a contract. Since no construction had commenced till November 2001, appellant/complainant has filed the consumer complaint for compensation of `5 lakhs with interest @ 21% p.a. from 19/11/2001 onwards till its final recovery and also `10,000/- by way of cost of the litigation.
4. This consumer complaint was decided by the District Consumer Disputes Redressal Forum on 02/03/2006. The consumer complaint was partly allowed and the respondent/opponent was directed to pay `10,000/- by way of cost of the complaint. It was also further directed that the opponent/ respondent shall jointly pay `3,00,000/- by way of compensation with interest @ 18% p.a. from 19/11/2001 till recovery and there is further direction given by the District Consumer Disputes Redressal Forum that amount of compensation and cost shall be paid within a period of two months from the date of receipt of copy of the order, failing which, the respondent shall be liable to pay additional penal interest of 3% p.a. over `3,00,000/- from 19/11/2001.
5. This order of the District Consumer Disputes Redressal Forum was challenged by the respondent before the State Commission by filing First Appeal no.740/2006 along with M.A.no.888/2006. Appeal was disposed of by the State Commission on 19/06/2008. Said appeal was partly allowed. Order of cost and compensation was confirmed by the State Commission. However, the order of charging interest @ 18% p.a. was modified by the State Commission and instead the rate of interest chargeable was made 7% p.a. by the State Commission. M.A.No.888/06 was disposed of. Thus, what we find that except change in the rate of interest to be charged on amount of `3,00,000/- and the cost, the order of the District Consumer Disputes Redressal Forum has been confirmed. It appears thereafter matter was not taken to the National Commission by either of the parties.
6. It is to be noted that copy of Execution Application no.200/2009 is made available to us. In the said execution application in a column, “Mode in which assistance of the Court is required” the following reliefs have been claimed by the original complainant;
a) Opponent No.1 to 5 or any person/s claiming through or under him may be directed to comply with the order forthwith.
b) Opponent No.2 to 5 be arrested and detained for non satisfaction of order of this Hon’ble Court.
c) Moveable and/or Immoveable properties of Opponent No.1 to 5 or any person/s claiming through or under him be attached and sold for recovery of the amounts due and payable by virtue of the said order.
d) For this purpose if required the permission to break open the lock, bolt or to break open the door or to remove any person found to be in possession thereof and to do any other act necessary for putting Applicant in possession of the property;
e) Applicant may be allowed to add, amend and alter the prayers as provided in Order XXI of C.P.C., as and when necessary and may be allowed to seek any other mode of execution as and when necessary;
f) Applicant may be granted such further and other relief/s to which he may be found entitled on the facts stated above;
and, lastly, applicant may be permitted to exhaust the above remedy either simultaneously as per directions of the forum and any other relief.
7. Thus, it appears that this application is a composite application invoking powers and jurisdiction of the District Consumer Disputes Redressal Forum under section 25 (3) and under section 27. However, such composite application is not tenable in law. We have held in A/1190/09 and Suo Motu Revision Petition no.35/10 Mr.Amir Ali Tharani v/s. Mr.Rajesh Sukhtankar decided on 27th September 2010, that execution application under section 25(3) is of civil nature, while execution application under section 27 is of the criminal nature and, therefore, both these remedies cannot be clubbed together. Procedure to be followed in each of the execution petition is a separate and distinct and, therefore, clubbing of the execution petitions is not permissible. However, it is permissible to file simultaneously separate proceeding under section 25(3) and under section 27. To that effect ratio has been laid down by us in the above referred judgement. Therefore, basically the application as filed was not maintainable.
8. Apart from that on perusal of the above reliefs, which have been enumerated above, it appears that the complainant who has filed the application has not looked into provisions of section 25. Section 25(1) is in respect of execution of interim order, while section 25(3) is in respect of execution of orders of Consumer Forum wherein there under direction is given by the District Consumer Disputes Redressal Forum for recovery of the amount. Section 25(3) can be invoked in respect of interim orders passed by the Consumer forum wherein directions for recovery of the amount have been given, which can be equally invoked for execution of the orders wherein order of recovery has been passed as in the instant case. Further, no prayers to that effect have been made. The old section 25 was permitting the Consumer Fora to execute the orders of the Consumer Fora as if it is a decree of the Civil Court passed in a pending suit. However, now the amended section 25 does not provide that the Order XXI can be invoked by the Consumer Fora. A detailed discussion in this respect is reflected in the above referred judgement. We need not repeat the same here also. However, application made by the complainant/appellant appears to have been made under section 25 (old) invoking powers under section 25. Such application is not permissible under amended section. Therefore, prayers made in this application are not in consonance with the amended section 25(3). What is to be taken into consideration is that that the application under section 27 for execution of any order i.e. order may be in respect of recovery of the amount and/or for the purpose of certain other acts as directed under section 14 of the Consumer Protection Act, 1986, however, in the present appeal, such application made in a composite manner is not correct. In this appeal, application Exhibit 11 has been preferred by the complainant/ appellant wherein he prayed that as per the undertaking given by the respondent, possession of the flat may be given to the complainant. Thus, what we have noted that the above referred two orders of the District Consumer Disputes Redressal Forum and the State Commission do not make a reference for a delivery of a possession of the flat.
9. It is further to be noted that in the original complaint which was filed before the District Consumer Disputes Redressal Forum, there was no prayer and no issue in respect of delivery of possession of the flat and, therefore, taking into consideration the dispute then existing, orders were passed by the District Consumer Disputes Redressal Forum and the State Commission. However, it appears that in the complaint in para 2 there is a statement “the complainant had intention to retain at least one premises in the new building to be constructed on the said property by demolishing old structure standing thereon. It was a strong wish of the complainant to enter into the new premises in his lifetime, built on the ancestral property”. However, as we have already observed that in consonance with these statements in the complaint there was no prayer before the District Consumer Disputes Redressal Forum that the possession of the premises should be given to the complainant. Apart from that nothing has been brought on record to demonstrate that there was an agreement to give a particular premises of a particular area to the complainant. On the contrary, complaint has been filed for compensation, for non development of the property within a stipulated period claiming that the time was an essence of the contract and that was limited issue which was for consideration of the District Consumer Disputes Redressal Forum and of the State Commission.
10. However, it appears that while the appeal was pending in the State Commission the respondent had given an undertaking to hand over possession of the flat to the complainant/appellant in December 2008. The said observation which is reflected from the appellate court order is as follows:-
“On last occasion builder has given an undertaking that he will hand over possession of the flat to the complainant in December 2008”.
11. However, what we find that the said undertaking was not, though recorded in the order, was not accepted by the State Commission and, further, while passing a final order relying upon the said undertaking, the State Commission has not passed an order for delivery of possession of one of the flats. Therefore, ultimately, we find that even though there is undertaking on record to deliver one of the flats to the appellant the area of the flat, location of the flat, namely floor on which flat is to be given, number of flat, nothing is disclosed in the undertaking. Therefore, it is simplicitor an undertaking that the flat will be given to the complainant/appellant but since we find that the said undertaking was not converted into an order by the State Commission, there is no order of the State Commission for delivery of possession of the flat. Under these circumstances, what are the remedies for the complainant. It is for him to find out the remedies. We are not giving any advice to him. However, what we find that the application-Exhibit 11 given before the District Consumer Disputes Redressal Forum while claiming execution of the original order, which was passed by the consumer forum was not tenable and the District Consumer Disputes Redressal Forum has rightly rejected the application holding that there is no direction or order given by either of the Consumer Fora to deliver possession of flat.
12. It is further to be noted that so far as monetary part of the order is concerned, namely `3 lakhs by way of compensation and `10,000/- by way of cost to be paid @ 18% p.a. from 19/11/2001 is concerned, the opponent has paid that amount to the complainant. Therefore, order which was passed by the District Consumer Disputes Redressal Forum and was modified by the State Commission has been completely obeyed by the opponent/respondent and the Ld.counsel who appears for the complainant/ appellant states that those amounts have been satisfied. Therefore, nothing survives for the execution and, therefore, District Consumer Disputes Redressal Forum has rightly rejected the application for execution. What we find that the remedies which have been followed by the complainant for execution of the undertaking are misconceived and, therefore, we concur with the finding recorded by the District Consumer Disputes Redressal Forum. Appeal stands disposed of accordingly. Copies of the order be furnished to the parties.
