(Per Mr.P.N.Kashalkar, Hon’ble Presiding Judicial Member)
(1) This appeal is filed by the original complainant against the order dated 30/09/2003 passed by the District Forum, Thane in Consumer Complaint No.719/99. The complainant is directed to approach the Court Receiver in Civil Suit No.3461/1994 pending in High Court for the relief. Aggrieved by this order, the original complainant filed this appeal.
(2) This appeal is lying unattended from 2003. The appellant also has not bothered to take circulation for getting first order passed. Therefore, on 11/07/2011, this matter was taken from sine-die list and placed before us for disposal. Intimation of that date was displayed on notice board and published on internet board of the Commission. On 11/07/2011, on finding that appellant as well as the respondent were absent; we directed office to issue notice informing next date of hearing i.e. 24/08/2011 to both the parties. As directions of 24/08/2011 were not complied with, office was directed to comply with the same and adjourned the matter to 11/10/2011. Accordingly, on 13/09/2011, office issued notices to the parties. On 11/10/2011 i.e. today, the appellant as well as the respondent are absent. Therefore, we are deciding the matter on merit.
(3) We perused the impugned order. The complainant had filed the consumer complaint with the prayer that the opponent No. 1 to 3 be directed to pay due of the bank, opponent No.4 and restore possession of the flat to the complainant. Opponents be ordered to obtain completion certificate from local authorities. The complainant had also prayed that the opponent be directed to pay `15,000/- towards expenses incurred by the complainant in High Court proceeding and refund of `18,000/- paid to court receiver towards royalty. The complainant had also prayed to direct the opponent to form the co-operative society and compensation 1 lac towards mental agony. The grievance of the complainant was that the complainant and opponent No. 1 to 3 executed an agreement for sale on 01/11/1990 of flat No.5 on 2nd floor in the building ‘Mangesh Apartment’ to be constructed on S.No.80, Hissa No.4, Kulgaon, Badlapur. The said agreement was registered on the same day at Registrar’s office, Ulhasnagar. On 27/11/1997, the complainant came to know thgough one flat holder in the same building that some officers of opponent No.4 bank are coming with court receiver who had been appointed in Civil Suit No.3461/1994 pending before Hon.Court of Mumbai as opponent No.1 to 3 had obtained loan of `5 lac from the opponent No.4 and failed to pay installments. On the same day, the said court receiver put lock and seal to the flat No.9 of the complainant. Thereafter, the complainant approached to the Hon’ble High Court, Mumbai and moved notice of motion. On 10/08/1998 application was heard by Hon’ble High Court and in view of order passed complainant repossessed his flat through court receiver with condition to deposit `2,000/- per month in court by way of royalty. During the pendency of said notice of motion opponent assured to deposit the amount due in three installments before 31/01/1999, but had not deposited it. The complainant pleaded that there is possibility that the bank may get possession of the flat and thus lot of mental pain was caused to the complainant. Hence, the complainant filed consumer complaint. The opponent No.1 to 3 resisted the complaint and pleaded that they had taken steps to form society, but due to dispute between flat purchasers and society, the society could not be formed. The opponents pleaded that they are not guilty of deficiency in service. After going through the documents, affidavits on record, the forum below found that all the property was in possession and under the control of court receiver appointed by High Court in Case No.3461/1994 and forum below deemed fit not to pass any order against the deficiency in service listed by the complainant. Therefore, the forum below dismissed the complaint and directed to complainant to approach the Court Receiver in Civil Suit No.3461/1994 pending in High Court for the relief. Aggrieved thereby, the complainant preferred this appeal.
(4) We are finding that there is pendency of suit No.3461/1994 between the opponent No. 1 to 3 and the opponent No.4 before the High Court, Mumbai. The court receiver appointed in the said suit took legal custody of the flat of the complainant. The forum below rightly held that they could not pass any order against the property which was in legal custody of court receiver. The forum rightly directed the complainant to approach the Court Receiver in Civil Suit No.3461/1994 pending in High Court. In the circumstance, the order passed by the forum below is just and proper and sustainable in law. We are, therefore, inclined to dismiss the present appeal filed by the original complainant. Hence, the order.
ORDER
(1) Appeal stands dismissed.
(2) No order as to costs.
(3) Inform the parties accordingly.
Pronounced on 11th October, 2011.
