Per Mr.B.S.Wasekar, Hon’ble President
1) The Executant/Original Complainant has filed complaint bearing No.CC/01/2010 before this Forum. The same was dismissed vide order dated 17th August, 2010. The complainant filed appeal before the Hon’ble State Commission bearing First Appeal No.A/10/1025. The Hon’ble State Commission vide order dated 16th July, 2012 allowed the appeal and set aside the order of this Forum. The Hon’ble State Commission directed the Opponent/Respondent to pay Rs.22,665.78/- alongwith interest at the rate of 15% per annum from the date of operation i.e. 22nd April, 2008 till the date of actual payment. The Hon’ble State Commission also directed to pay penal interest and cost of litigation. On the basis of this order of the Hon’ble State Commission, the Executant has filed this execution petition. Admittedly, the opponent has not filed any appeal against the order of the Hon’ble State Commission. But, filed writ petition bearing No.10797 of 2012 before the Hon’ble High Court. The Hon’ble High Court has passed order dated 20th November, 2012 and refused to grant any interim relief. The Hon’ble High Court has passed specific order that the rule granted would not in any manner whatsoever hinder the proceeding before the relevant authorities.
2) The opponent appeared before this Forum and requested to stay the proceeding till the hearing of writ petition pending before the Hon’ble High Court. It is objected by the Executant on the ground that the Hon’ble High Court has given specific directions not to hinder the proceeding before any authority. According to the learned advocate for the Executant, the Hon’ble High Court has given specific directions to avoid further delay in execution.
3) The learned advocate for the opponent has submitted that even though no appeal is filed before the Hon’ble National Commission still the order is under challenge before the Hon’ble High Court therefore there is no finality to the order of the Hon’ble State Commission. The learned advocate for the Executant has drawn our attention to the provision under section 24 of the Consumer Protection Act, and submitted that there is no appeal pending before the Hon’ble National Commission therefore the order passed by the Hon’ble State Commission is final.
4) Admittedly, no appeal is filed before Hon’ble National Commission against the order of the Hon’ble State Commission. The opponent has filed writ petition before the Hon’ble High Court challenging the certain provisions under the Consumer Protection Act. The Hon’ble High Court has given specific directions in the order dated 20th November, 2012 that the proceeding should not be hindered in any manner before the relevant authorities. It shows that the Hon’ble High Court has refused to grant any stay. On the other hand, the Hon’ble High Court has given specific directions not to hinder any proceeding. Therefore, this Forum can not stay the execution proceeding. It is settled law that mere filing appeal or pendency of any matter before the higher authority is not sufficient to stay the proceeding. The writ petition was filed in the year 2012. The Executant is a senior citizen. Even though the order was passed before two years still the Executant has not received any amount. On this background, it will not be proper to stay the execution proceeding.
5) As per the order of the Hon’ble State Commission, the opponent was directed to pay the amount of Rs.22,665.78/- with interest at the rate of 15% per annum and also penal interest at the rate of 3% per annum. The opponent was directed to pay cost of litigation Rs.10,000/-. The opponent has not paid any amount therefore the Complainant has filed this execution. The amount of Rs.52,725/- is outstanding against the opponent. Therefore, the Executant has prayed for recovery certificate u/s 25 of the Consumer Protection Act. As the opponent failed to pay the amount, the Executant is entitled for the recovery certificate as prayed u/s25 of the Consumer Protection Act. Hence, the following order.
O R D E R
1) Execution proceeding under section 25 is allowed.
2) Issue recovery certificate under section 25 of the Consumer Protection Act, 1986 to the Collector, Mumbai City, Old Custom House, Mumbai.
3) Inform the parties accordingly.
Pronounced
Dated 28th February, 2014
