ORDER
(Passed on – 2nd July, 2018)
As per Hon’ble President. Mr. Shekhar Muley.
Order on application of N.A. for dismissal of the proceeding (Ex. 9)
1. This is an application for dismissal of the execution application moved by the Opposite Party. The dismissal is sought on the premise that the execution application is not maintainable under the provision of Section 27 of the Consumer Protection Act. (the Act, for short), and the order has also been complied by depositing the amount directed to be paid.
2. The complainant has filed the instant execution application on failure of the OP to comply the order passed by the forum in the consumer complaint case. The execution application is filed u/s 27 of the Act. However, the prayer made in the application is not in conformity with the provisions of the Sec.27.
3. The OP is seeking dismissal of the execution application on this specific ground that nature of and reliefs to be claimed under these two sections, 25 and 27, are different and so reliefs under both the sections cannot be clubbed together in one application. It has been pointed out to us that the complainant, though filed the execution u/s 27 of the Act, has virtually claimed the reliefs u/s 25 of the Act, therefore such application for execution is bad in law. It is further submitted that as per the order of the forum, the OP is directed to execute sale deed of the plot or refund the amount with interest to the complainant. It is submitted since the complainant made default in payment of money the booking was cancelled and the plot was given to other person. So now, no plot is available with the OP and so execution of sale deed is out of question. Therefore, he refunded the amount with interest by depositing the same with the forum and thereby complied the order.
4. Ld counsel for the complainant has strongly opposed the application. It is contended the OP has failed to comply the main part of the order by failing to execute sale deed. Therefore mere deposit of the amount to be refunded is not tantamount to compliance of the order. Because, it is submitted, the amount has been deliberately deposited without satisfying the forum for non execution of sale deed. It is further submitted some amount is still due from the OP. Therefore on these counts it is urged to reject the application.
5. As stated before, in the execution application u/s 27 of the Act, following prayer is made. (translated into English)
- By passing suitable order against the OP, the order passed by the forum be complied and the direction be given to the OP to pay balance amount of Rs. 1,58,118/- to the complainant.
It does not require second thought to say that the execution, in essence, is sought u/s 25, though the heading of the application mentions that it is filed u/s 27 of the Act. It was registered as one u/s 27 of the Act. Even the contents of the application nowhere suggest the complainant wants the OP to be penalised u/s 27. Ld counsel for the complainant tried to explain that the application is drafted by some other counsel, who might not be aware of two different provisions. We are unable to accept this explanation for simple reason that the error could have been corrected if the application was not proper. Section 27 of the Act is a penal provision by which the person against whom the order is passed by the forum, is punished for non compliance of the order. Specific compliance of the order can also be sought u/s 25 of the Act. These are two separate provisions provided for the person in whose favour order is passed to get the fruits of the order. But it must be noted that while section 25 is for enforcement of the order passed by the forum, provisions of section 27 are essentially penal in nature for failure to comply the order.
6. It is pertinent to note that the complainant in this execution application has not asked for execution of sale deed. She simply prayed to direct the OP to pay balance amount. She has relinquished or omitted to seek direction regarding execution of sale deed. Now, she cannot say that the OP has avoided to execute sale deed. Therefore under the circumstances, her insistence to get sale deed executed is not justified. As far as monetary relief is concerned, the forum directed the OP to refund the amount of Rs. 54,000/- with 12% p.a interest from 25/4/2003 to her, besides compensation of Rs. 10,000/- and litigation cost Rs. 5000/-. The OP has deposited Rs. 1,61,300/- on 15/7/2017 after calculating interest till that date. The deposit was made before the execution application was filed. This fact is admitted by the complainant in the application itself. However, according to the complainant the OP is supposed to pay Rs. 2,95,553/-, besides Rs. 10,000/- and Rs. 5000/- on account of compensation and cost. At what rate of interest she calculated this amount of Rs. 2,95,553/- is not explained. Because interest @12% pa on principal sum of Rs. 54,000/- from 25/4/2003 till 15/7/2017 comes to Rs. 92,247/-. That means principal amount with interest is Rs.1,46,247/-. So total amount including compensation and cost is Rs. 161,247/-. The OP has deposited more than that. It appears, the complainant has applied compound rate of interest, which is not correct. The order of the forum has allowed 12% pa interest. It does not say the interest shall be calculated at compound rate. When the order does not specify whether interest would be simple or compound, it shall always be calculated at simple rate. Thus we find that the OP has fully complied the order and now nothing remains to be executed.
7. After considering the submissions and facts, we are of considered opinion that the execution application is infructuous for full compliance of the order and secondly the application u/s 27 of the Act is not tenable for the reliefs claimed in it. On these counts, the execution application is liable to be dismissed. Hence, the following order.
ORDER
- The application, Ex. 9 is allowed.
- The execution application, E.A. No. 17/81 is dismissed.
- The OP is discharged and his bail bond is cancelled.
- Proceedings closed.
