THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BANGALORE. (ADDL. BENCH)
DATED THIS THE 19th DAY OF JULY, 2023
TRANSFER APPLICATION NO.01/2023
PRESENT
SRI RAVI SHANKAR, JUDICIAL MEMBER
SMT. SUNITA C.BAGEWADI, MEMBER
Robert D’Souza
312, Crystal Valley,
C-Wing, 5th Cross Road,
Nayampalli, ...DHr/Petitioner
Udupi-576 102
(By Smt.Swathi.M, Advocate)
-Versus-
1. Thomas Charles Lewis
KG Road, Uppoor village,
Thenkabettu post,
Udupi taluk & Dist.-576 105 JDr/Respondent/s
2. Subhashi Piraji Kachole,
Flat No.404, Vishram Tower,
No.4, Sector No.9,
Shree Nagar, Thane, Mumbai-400 604
3. Mahendra Gajraj Bais,
Room No.505, 5th Floor,
Lewis Apartment,
Lewiswadi, Old BMC Pipe Line Road,
Thane West, Mumbai-400604
(Exparte)
O R D E R
BY SRI RAVI SHANKAR, JUDICIAL MEMBER
The Decree Holder in Execution Application No.14/2022 pending before the District Commission, Udupi filed this transfer application under Section 48 of Consumer Protection Act 2019 to transfer the said execution application to this State Commission and submits that he had filed the above execution application by virtue of the order passed in the complaint No.75/2020 which directed the Judgment Debtor/respondent to pay an amount of Rs.18.00 lakhs which was paid towards purchase of the flat. The respondent had not complied the order passed by the District Commission in complaint no.75/2020 within stipulated time provided for which this petitioner filed recovery proceeding under Section 71 and 72 of the Consumer Protection Act by filing execution application.
2. After admission, the District Commission issued cause notice for appearance and for compliance. On 29.8.2022 on that day the Judgment Debtor not appeared and time was given by the District Commission for appearance and to proceed with the evidence of the Decree Holder. Accordingly on 29.11.2022, the complainant filed affidavit evidence. After considering the said, the District Commission directed the Judgment Debtor/accused to appear before the District Commission. The District Commission after issuance of the notice had provided a time for appearance in-person and subsequently issued NBW for non-appearance of the Judgment Debtors.
3. The District Commission upon the application filed by advocate for Judgment Debtors under Section 436 enlarged them on bail without any reasons. The District Commission ought to insist for compliance of the order, but without any reason, the District Commission enlarged the Judgment Debtor on bail and not directed the Judgment Debtor to comply the order. The District Commission has not following the provisions laid down in the Consumer Protection Act in order to compliance of the order. Some lenient attitude was showing by the District Commission, the complainant is a senior citizen who had paid the amount for allotment of the apartment, but in default the order was obtained for recovery of the said amount, but the District Commission had not proceeding the matter expeditiously. Hence, prays to transfer the matter to this State Commission.
4. After hearing this commission issued a notice to the respondent/Judgment Debtor for appearance, but they were not appeared before this commission in spite of service after notice, hence they placed exparte.
5. Heard on application.
6. On perusal of the transfer application filed under Section 48 of Consumer Protection Act and certified copy of the order sheet in execution application no.14/2022, we noticed the District Commission after issuance of the notice have directed the Judgment Debtors to appear before the District Commission. When the Judgment Debtors not appeared in spite of notice, the District Commission proceeded to issue NBW against the Judgment Debtor, after issuance of the said NBW, the Judgment Debtors who represented through their counsel have filed an application Section 70(2) of CrPC to recall the warrant issued against them and undertaken to comply the order. There afterward, the Judgment Debtors released on bail by executing personal bonds for an amount of Rs.25,000/-. Subsequently, we noticed that on 13-9-2022, the Judgment Debtors had paid an amount of Rs.1,50,000/- through DD in favour of the Assistant Registrar, District Commission towards the amount payable in the execution application and the same was credited to the account of the District Commission and sought time for comply the order. Subsequently, another NBW was issued for which the Judgment Debtors had filed an application under Section 70 (2) of CrPC to recall the NBW, again the District Commission recalled the NBW.
7. We noticed the District Commission has not applied its judicious mind for compliance of the order. The very purpose of filing an application under Section 71 and 72 of Consumer Protection Act is for enforcement of the order passed by the District Commission. When the order was not complied the District Commission ought to impose penalty on Judgment Debtors for non-compliance of the order. Merely providing the date for recording evidence and other procedure will not serve the purpose.
8. We noticed apart from all these the Judgment Debtors has paid an amount of Rs.1,50,000/- towards award amount as such being the case, we do not find any valid reason for transfer of the execution application to this commission.
9. It is appropriate to direct the District Commission to proceed with the execution application in accordance with law for compliance of the order passed in complaint No.75/2020. Further the District Commission is directed to see the execution petition be closed expeditiously by complying the order by the Judgment Debtor. As such, Transfer Application is hereby disposed. Accordingly, we proceed to pass the following:-
O R D E R
The Transfer application is hereby disposed. No order as to costs.
Send a copy of this order to both parties as well as concerned District Consumer Commission.
Member Judicial Member
Jrk/-
