03.11.2014

MRIDULA ROY, MEMBER.

This judgment will govern both the appeals bearing Nos. FA/304/2014 and FA/305/2014.

The instant appeals under Section 27A of the Consumer Protection Act, 1986 are directed against the order being No. 30 dated 24.02.2014 passed by Ld. District Forum, South 24 Pgs. in Execution Case Nos. 71 of 2012 and 72 of 2012 wherein the Ld. District Forum held that the Executing Court cannot go beyond the decree and fixed 20.03.2014 for full compliance of the decree, in default, the JDRs were to face sentence proceedings as mentioned earlier especially mentioning that no hearing would be made except sentence proceeding on the date fixed. 

Both the execution cases arose out of the Complaint Cases being Nos. 296 of 2010 and 297 of 2010 allowing the same in part on contest against the O.P. No. 1, 1(a) and 1(b) with cost and without cost against the rest directing all the O.Ps to execute and register the Deed of Conveyance in favour of the Complainant in respect of the flat and car parking space in question within one month from the date of the order, further directing the O.P. Nos. 1, 1(a) and 1(b) to complete the unfinished works as per stipulation and specification of the sanctioned plan, to deliver possession of common meter room, guard room and pump room and to supply the copies of completion plan and occupancy certificate within one month from the date of order, restraining the O.P. Nos. 1, 1(a) and 1(b) from transferring/alienating the common area to any stranger purchaser/person, furthermore directing the O.P. Nos. 1, 1(a) and 1(b) to pay Rs.1,00,000/- towards compensation and Rs.10,000/- towards cost within one month from the date of order failing which the said amount of Rs.1,10,000/- would carry an interest @ 10% per annum from the date of default till realization.

Being aggrieved by and dissatisfied with the impugned order being No. 30 dated 24.02.2014 in Execution Case Nos. 71 of 2012 and 72 of 2012 the O.P. – Developer – Partnership Firm and its partners i.e. the O.P. Nos. 1, 1(a) and 1(b) have preferred the instant appeals being Nos. FA/304/2014 and FA/305/2014 on the grounds, inter alia, that the Ld. Executing Forum passed the impugned order without considering the matter in its proper perspective deviating from the settled principles of law laid down by the Hon’ble Supreme Court of India in its judgment reported in AIR 2002 SC 251 wherein the Hon’ble Apex Court held “the executing court can decide whether the question raised by a resister or obstructor illegally arises between the parties.  An answer to the said question also would be the result of the adjudication contemplated” and also without considering the submission of the Ld. Advocate for the JDRs that they were ready and willing to execute and register the Deed of Conveyance, construction work of guard room was going on and the same would be delivered, completion certificate could not be given at that stage, the pump room could not be constructed since there was a submersible pump and electric meters had been place in the premises as per instruction of the Electricity Department.

The Complainant Sri Goutam Chatterjee by filing Complaint Case being No. 296 of 2010 and the Complainants Sri Samiran Ghosh and Smt. Tapasi Ghosh by filing Complaint Case being No. 297 of 2010 before the Ld. District Forum alleged that in spite of receiving the consideration amount in full, even in excess, the O.Ps neither executed and registered the Deed of Conveyance in respect of a flat along with a car parking space nor did complete several construction works although requests on several occasions were made to that effect but to no avail.

In course of hearing of the appeals Ld. Advocate for the Appellants – Developers has submitted that the crux of the entire matter is that whether the JDR obeyed the executing court or not.  Ld. Advocate for the Appellant has submitted that the Appellant – JDRs obeyed the order of the trial Forum and paid Rs.1,00,000/- (one lakh) to the purchaser in each case.  Ld. Advocate for the Appellant has further submitted that the Ld. Executing Court should have reconsidered the matter appreciating the predicament of the Developers in constructing the pump room etc. since the flat owners of the building have been enjoying the pump since five years and, therefore, there is no need to construct another pump room in the building.  In support of his contention Ld. Advocate for the JDR has cited the decision reported in AIR 2002 SC 251 (N.S.S. Narayana Sarma and Others – vs. – M/s. Goldstone Export (P) Ltd. and Others).

Ld. Advocate for the Respondent – purchaser has submitted that the permission of pump room etc. were in the sanctioned plan but in spite of that the same have not been constructed and to determine the actual state of construction Ld. Executing Forum sent a Commissioner and report of the said Commissioner revealed that there was no guard room, meter room and pump room which were provided in the sanctioned plan.

In course of hearing the Respondent – Land Owners supported the view of the purchasers. 

Having heard both sides and on perusal of papers on record it appears that the specific grounds taken by the Appellants in both appeals that the Execution Court can reconsider the matter of decree in execution and considering the circumstances the executing court should exempt the JDR from complying with certain directions given by the trial Forum in the final order in original case.  In support of his contention Ld. Advocate cited the decision of Hon’ble Supreme Court wherein the Hon’ble Supreme court was pleased to hold “ the execution court can decide whether the question raised by a resister or obstructor illegally between the parties”,  but in the instant execution cases, no such question of illegality arose  between the parties.  the Ld. Trial Forum clearly directed the O.P. – Developers to complete the unfinished works as per stipulation and specification of the sanctioned plan and since the construction of unfinished works were directed to be done as per provision of sanctioned plan there is no question of any illegality.  Therefore, the decision of the Hon’ble Apex Court is not applicable in the facts and circumstances of the instant case.

Further, it is well settled principle of law that the executing Court cannot go beyond the original order which was put into execution.

Therefore, considering the facts and circumstances as discussed hereinabove we are of opinion that no illegality was committed by the Ld. District Forum in passing the impugned order.

In the result, the appeals fail.

Hence, ordered that the instant appeals are dismissed on contest without cost.  The impugned orders are affirmed.