BEFORE THEGOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

PANAJI-GOA

In the matter of First Appeal number 30 of 2019 in Execution Application 19 of 2018.

Before: Shri Dhananjay A. Jog, President

         Dr. Nagesh S. Colvalkar, Member

   Adv. Ms. Rachna A.M. Gonsalves, Member

Smt. Cruzinha Da Silva,

alias Cruzinha Candida Lourdina Da Silva,

widow of Shri Geraldo Da Silva.                        …..Appellant-1          

Shri Lincoln Emiliano Abel D’Silva,

s/o Shri Geraldo Da Silva,                                …..Appellant-2

both above residents of

Flat no. F-11,

D-Block, Priyanka Enclave,

Behind Costa Factory,

Aquem Alto, Margao-Goa.

V.

The Priyanka Enclave Co-operative

Housing Society Limited,

Priyanka Enclave,

behind Costa Factory, Aquem, Margao, Goa.
represented by its Chairman,

Shri Lawrence Fernandes.                          …..Respondent-1

Shri Lawrence Fernandes,

s/o Shri Baptist Fernandes,

Flat no. F-10, C-Block.                               …..Respondent-2

Shri Harshad S. Velguenkar,

s/o Shri Sakharam Velguenkar,

Flat no. S-5, B-Block.                                 …..Respondent-3

Shri Socorro Francisco Costa,

s/o Shri Antonio Joao Costa,

Flat no. S-12, A, C-Block.                                  …..Respondent-4

Shri Pradeep Bhaskar Nerurkar,

s/o Shri Bhaskar Nerurkar,

Flat no. T-6, C-Block.                                …..Respondent-5

Shri Babasaab Krishna Patil,

s/o Shri Krishna L. Patil,

Shop No. 14, B-Block.                               …..Respondent-6

Shri Gurudas Ganpat Samant,

s/o Shri Ganpat Samant,

Flat no. T-12-A, C-Block.                           …..Respondent-7

Smt. Cristalina Alda Furtado,

w/o Shri Ramiro Furtado,

Flat no. F-8, C-Block.                                …..Respondent-8

Shri Uday Shantaram Naik,

s/o Shri Shantaram Naik,

Flat No. T-4, B-Block.                                …..Respondent-9

Smt. Varsha Diller Desai,

w/o Shri Diller Desai,

Flat no. T-7, C-Block.                               …..Respondent-10

Shri Hubert Andre Martins,

s/o Shri F.X.R. Martins,

Flat no. S-3, B-Block.                                …..Respondent-11

Smt. Shobha alias Geeta V. Naik,

w/o Shri Vaikunth Deu Naik,                      …..Respondent-12

&

Shri Vaikunth Deu Naik,

s/o Shri Deu Naik,                                      …..Respondent-13

both above residents of

Flat no. F-9, C-Block.

Shri Pascoal Diniz,

s/o Shri Edmund Simon Diniz,     

Flat no. S-2, A-Block.                                       …..Respondent-14

Shri Avinash Bhikaji Dangui,

s/o Shri Bhikaji Dangui,

Flat no. T-9, C-Block.                               …..Respondent-15

Smt. Anjali Yashwant Deo,

w/o Shri Yashwant K. Deo,

Flat no. T-5, B-Block.                               …..Respondent-16

Smt. Abhilasha D. Gauns,

w/o Shri Dattaprasad Gauns,

Flat no. T-3, B-Block.                              …..Respondent-17

Shri Bhupendra alias Bhataram Patel,

s/o Shri Chogaram Patel,

Flat no. S-9, C-Block.                              …..Respondent-18

Shri Shanwalram Patel,

s/o Shri Ransodaram Patel,

Shop nos. 15,16,17 and 19 in C-Block.   …..Respondent-19

Shri Kalicharan C. Pareek,

s/o Shri Chunaram Pareek,

Shop no. 22, D-Block,                             …..Respondent-20

all above residents of

Priyanka Enclave, Behind Costa Factory,

Aquem Alto, Margao, Goa.

Shri Ivano Jose Almeida,

s/o Shri Joaosinho G. Almeida.                         …..Respondent-21

Smt. Maria Almeida

w/o Shri Ivano Almeida.                           …..Respondent-22

M/s J. G. Developers

represented by its sole Proprietor,

Shri Ivano Almeida.                                         …..Respondent-23

all above residents of

Near Presentation Convent Bldg.,

Old Market, Margao, Goa.                               

Smt. Sonia Estefania D’Silva e Varghese,

w/o Shri Johny Varghese

and d/o late Shri Geraldo Da Silva.         …..Respondent-24       

Shri Johny Varghese,                               …..Respondent-25

both above residents of

Flat no. F-2, A-Block,

Priyanka Enclave,

Behind Costa Factory,

Aquem Alto, Margao-Goa.       

Smt. Sandra Maria Da Silva e Mascarenhas,

w/o Shri Humberto L. Mascarenhas

and d/o late Shri Geraldo Da Silva.          …..Respondent-26 

Shri Humberto L. Mascarenhas,              …..Respondent-27

both above residents of

House no. 12,

Sarvodem, Margao-Goa.          

Smt. Silva Da Silva e Colaco,                   …..Respondent-28

w/o Shri Zacarius A. Colaco,

and d/o late Shri Geraldo Da Silva.         

Shri Zacarius Alistair Colaco,                  …..Respondent-29

both above residents of

House no. 70,

Sasmollem, Baina,

Vasco-Da-Gama-Goa.

Shri Fermino Da Silva,

s/o late Shri Abel Simao Da Silva,            …..Respondent-30

Smt. Maria Quiteria D’Costa,

w/o Shri Fermino Da Silva,                       …..Respondent-31

both above residents of

2nd Floor, Star House,

Sirvodem, Navelim, Salcete, Goa.            

Shri Eugenio Rodrigues,

s/o Shri Macario A. Rodrigues,                 …..Respondent-32

Smt. Sarita Rodrigues,

w/o Shri Eugenio Rodrigues.                    …..Respondent-33

both above residents of

c/o. Macario Rodrigues,

House no. 72, Maimolem, Down mangor,

Vasco-Da-Gama, Mormugao-Goa.

Shri Valeriano Mendonca,                       …..Respondent-34

and his wife.                                           

Smt. Lisa Mendonca,                               …..Respondent-35

d/o Shri Macario Rodrigues.  

both above residents of

Sakkare Residency,

3rd Building, 3rd Floor, Adarsh Nagar,

Chicalim, Mormugao-Goa.

Shri Neves Quadros,                                …..Respondent-36

and his wife

Smt. Nena Quadros,                                        …..Respondent-37

d/o Shri Macario Rodrigues.

both above residents of

House no. 119/A,

Amboi, P.O. Piedade,

St. Estev, Ilhas-Goa. 403403 

• Adv. Shri Zeller D’Souza argues for Appellants.
• Adv. Shri P. N. Kamat argues for Respondents-1 to 20.
• Adv. Shri A. Gonsalves present for Respondents-21 to 23.
• Adv. Shri J. Reis present for Respondents-24 & 25.
• Other Respondents absent.

Date: 14/03/2023

JUDGEMENT

{per Shri Dhananjay A. Jog, President}

1. This Judgement and Order shall dispose of an Appeal filed on 04/06/2019 as against Order dated 03/05/2019 of the District Consumer Commission South Goa, in EA/19/2018 before it.

2. Appellants are Judgment Debtors-4 & 5 in the Impugned Order (erroneously referred to as Judgment Debtors-3 & 4). Present Respondents-1 to 20 are Decree Holders-1 to 20. Respondents-21 to 23 are Judgment Debtors-1 to 3. Respondents-24 & 25 are Judgment Debtors-7 & 8. Respondents-26 & 27 are Judgment Debtors-9 & 10. Respondents-28 & 29 are Judgment Debtors-11 & 12. Respondents-30 & 31 are Judgment Debtors-13 & 14. Respondents-32 & 33 are Judgment Debtors-15 & 16. Respondents-34 & 35 are Judgment Debtors-17 & 18. Respondents-36 & 37 are Judgment Debtors-19 & 20.  

3. Appellants state that during the proceedings before the District Commission, in the year 2015, i.e. prior to the Execution Proceedings being filed at the District Commission, Judgment Debtor-6 expired.

4. That present Appellant-1 filed an Application on 20/06/2012 before the Asst. Registrar of Co-operative Societies praying for cancellation of formation of Respondent-1 Society and a Legal Notice was sent on 26/06/2012 for de-registration of said Society. The said Asst. Registrar of Co-operative Societies informed Appellant-1 that the request for de-registration cannot be complied with. Appellant-1 filed a Revision Application before the Co-operative Tribunal. The said Revision Application, vide Judgment dated 29/03/2016 was remanded back to said Asst. Registrar of Co-operative Societies for a fresh decision in the matter.

5. That Respondents-1 to 20 subsequently filed a Consumer Complaint (CC/52/2013) at the District Commission, South Goa as against the present Appellants as also Respondents-21 to 27 and also Respondent-7 who has since expired as stated in clause 3 above. That subsequently, the Complaint at District Commission was amended so as to add Respondents-30 to 37, Legal Heirs of Shri Abel D’Silva. That the said District Commission pronounced its Order on 31/08/2016 in terms of which Respondents-24 to 37 were directed to Execute a Sale Deed in favour of Respondent-1 within 60 days, and Appellants and Respondents-24 to 37 were also jointly and severally directed to pay compensation of Rs.1,00,000/- with interest @ 9% p.a.

6. That the Respondent-1 never informed Appellants as to date/time of Execution of Sale Deed.

7. That subsequently Respondent-1 to 20 filed an Execution Application (EA/19/2018) on 30/08/2018 which came to be disposed on 03/05/2019. Vide said Order of 03/05/2019 District Commission allowed the Execution Application and directed recovery of Rs.1,00,000/- @ 9% p.a. from 14/08/2013 till realization of the amount.  

8. It is Appellant’s case that the District Commission did not appreciate the fact that Appellants were ready to execute the Sale Deed as is evidenced by Appellant’s response to Respondent-1’s Notice of 15/03/2017 that Appellants showed willingness to execute Sale Deed and furnished copies of PAN/Aadhar Card by reply dated 28/03/2017. That it was Reapondent-1 who delayed in execution of Sale Deed and hence that Appellants should not be held liable.                                

9. Upon admission of Appeal notices were issued. Certain of the many Respondents arrayed appeared in person and certain others were represented by Counsel. Written Arguments were filed by both sides. Between the period from around February 2021 till June 2022 this Commission functioned with a Single-Member-Bench due to vacancies, and hence the matter could not be proceed. Final Oral Arguments were heard on 10/01/2023.

10. The Impugned Order in EA/19/2018 observed that the said District Commission cannot Order execution of Sale Deed as such powers are not conferred by provision of Section 25 of the Consumer Protection Act 1986. The District Commission went on to state that Sub-Sections-1 & 2 of Section 25 of the C.P.A. 1986 deal only with interim Orders and that Sub-Section-3 empowers the Commission to issue a Recovery Certificate.

11. Accordingly the Order directed Judgment Debtors (including Appellants) to jointly and severally pay to Decree Holder-1 a sum of Rs.1,00,000/- with interest @ 9% p.a. from 14/08/2013 till date of realization of said amount. Issuance of such Recovery Certificate to Collector was also ordered.  

12. Further that, for the purpose of  executing Sale Deed, Appellants also requested Decree Holder to furnish a copy of a draft of such Deed which could be vetted by Appellants/their Advocate.

13. That in view of all above Appellant cannot and should not be faulted, especially since after responding to Decree Holder’s letter as stated above, no communication thereafter was received from Decree Holder.

14. That, in spite of all above, the District Commission passed its Impugned Order in which Appellant is also held liable.

15. Adv. Shri P. N. Kamat for Respondents-1 to 18/Decree Holders would argue that expression of willingness exhibited by Appellants should not be considered sufficient. That the same should have been translated into concrete action on behalf of Appellants, as also the other Judgment Debtors, which was not seen.

16. Upon a question by this Commission to Counsel Shri Kamat, as to why, when such willingness was expressed, the appropriate logical step; - which would have been to draft a Sale Deed and give the same to Appellants for inspection and approval- was not taken; Counsel stated that multiple steps are necessary to Draft & Execute a Sale Deed and that 3 such drafts exist with Decree Holder as on date. Counsel admitted that none of these drafts were ever given either to Appellants or the other Judgment Debtors.

17. We observe that, if no draft was ever given, how could a Party, either, approve/reject or suggest any modification therein? If a draft had ever been given to Appellants, it could have been inferred that progressive step as above may have been taken.    

18. Appellants bonafides are only partly established by their expressed willingness in writing together with PAN and Aadhar Card details. However at the same time we observe that Appellants tried to scuttle the formation of a Co-operative Society by Decree Holders by applying for de-registration of Society and even Appealing against decision. It is to be noted that even said Appeal was rightly dismissed by CO-OPERATIVE TRIBUNAL, GOA.     

19. The present Appeal before us prays for setting aside the Impugned Order dated 03/05/2019 by District Commission, South Goa, pronounced in the matter EA/19/2018.

20. The said Order directs that Judgment Debtors including the present Appellants are held jointly and severally liable to pay to the Decree Holder-1 an amount of Rs.1,00,000/- with interest @ 9% p.a. from 14/08/2013 till realization of said amount by the appropriate Collector by issuing to him a Recovery Certificate as provided under sections 120, 122 to 164A of Chapter X of the Goa Land Revenue Code.

21. Having observed as above, we are of the considered opinion that when a Court/Commission has directed that a Sale Deed be executed, it was incumbent on the present Appellants to take steps on their own to execute such Deed. No doubt Appellants responded positively to Decree Holder’s communication and provided PAN/Aadhar Card details. However this was after about over 45 days of the 60-day period granted to execute such Sale Deed.

22. It is hence evident that Appellants did not initiate any steps to execute the Sale Deed. There is nothing on record to show that Appellants on their own drafted any such Deed and forwarded it to Decree Holder.

23. Vide observations as above it is seen that laxity occurred on behalf of both contending Parties. Decree Holders/Respondents-1 to 18 did not submit draft of Sale Deed in spite of Appellants inviting them to do so. On the other hand Appellants did not initiate any step to execute the Deed as they were bound to.           

24. We hence observe that Appellants are certainly liable to execute the required Sale Deed in favour of Decree Holders/Society. 

25. It is hence determined that Order by District Commission, South Goa dated 03/05/2019 in Execution Application EA/19/2018 is partly upheld.

26. Clause 31 of the Impugned Order is quashed and set aside. Accordingly the Impugned Order is modified as under.

27. All Judgment Debtors including present Appellants shall execute Sale Deed within 60 days of this Judgment and that they shall also, jointly and severally, pay the sum of Rs.1,00,000/- to Decree Holders. In case the said amount is not paid within 60 days as directed then it shall attract a penal interest of 12% p.a. from the 61^st day.

28. In the facts of the matter, there shall be no Order as to  Costs.

[Shri Dhananjay A. Jog]

President

[Dr. Nagesh S. Colvalkar]

                        Member

[Adv. Ms. Rachna A.M. Gonsalves]

Member

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