State Consumer Disputes Redressal Commission
Mangalmurti Co-Operative Housing ... vs Mr.Manish T.Gosar on 17 April, 2010
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI REVISION PETITION NO.14 OF 2010 IN EXECUTION APPLICATION NO.70/2008 IN CONSUMER COMPLAINT NO.114/2006 DISTRICT CONSUMER FORUM :THANE Date of order : 17/04/2010 Mangalmurti Co-operative Housing Society Ltd. (Proposed) Through its Secretary Mr.Sadashiv S.Aadate R/o.Mangalmurti Apartment B-1/1, Chakki Naka, Tisgaon Kalyan(E), District Thane Petitioner /org.complainant v/s. Mr.Manish T.Gosar Builders & Developers M/s.Disha Enterprises C/o.Kaveri Constructions Kalyan Dombivali Marg Netivali, Kalyan(E) District Thane .Respondent/org.O.P. Quorum : Justice Mr.S.B.Mhase, Honble President Mr.S.R.Khanzode, Honble Judicial Member
Mr. Dhanraj Khamatkar, Honble Member Present:
Mr.A.B.More-Advocate for the petitioner.
Mr.Sanjay Mhatre-Advocate for the respondent : ORAL ORDER:
Per Justice Mr.S.B.Mhase, Honble President
1. Heard Mr.A.B.More-Advocate for the petitioner. Mr.Sanjay Mhatre-Advocate for the respondent.
2. This revision petition has been filed by the revision petitioner challenging the order dated 22/5/2009 passed in Execution application no.70/2008.
3. Initially complaint no.114/2006 was filed by four complainants. They are respectively 1) Mr.Sadashiv S.Adate 2) Mr.Dattaram A.Adate 3) Mr.Bajrang P. Hajare 4. Mr.Sarad A.Natekar. This complaint was decided on 25/12/2007.
Complaint was partly allowed. Order is to the following effect:-
Opponent nos.1&2 shall pay Rs.5000/- to 21 complainants/members jointly and shall bear their own costs.
The opponent nos.1&2 shall pay an amount of Rs.7,128/- deposited towards the non agricultural cess by the 21 complainants/members.
They were further directed to pay an amount of Rs.2500/- paid by all these 21 members towards electric meter. There is further direction that in respect of building no. B(1) and B(2) opponents shall form a Co-operative Society and shall make an application for the said purpose. Opponents were also directed to execute Conveyance deed in favour of the society and submit the Occupation Certificate. For mental agonies Rs.10,000/- were directed to be paid to the 21 members.
4. Prayers in respect of property tax, processing fee and penalty were rejected and opponents in the said complaint were directed to comply with the said directions by the District Consumer Forum within a period of three months.
This order of the District Consumer Forum was not challenged by the opponents and, therefore, said order became final.
5. Thereafter, execution petition no.70/2008 was filed by Mangalmurti Co-operative Housing Society Ltd. (Proposed) through its Secretary Mr.Sadashiv S. Adate under section 27 of Consumer Protection Act, 1986. It appears that the objection was raised in respect of said execution application on the ground that the original complainants who were 1 to 4 have not filed execution and the proposed society, which has filed execution is not a party to the original complaint and, therefore, execution application is not tenable.
6. Said objection was decided by order dated 22/5/2009 and it has been observed that only 4 complainants can continue with the execution petition. Forum has also found that power of attorney dated 12/12/2005 even though on record, in favour of four original complainants, the said complaint was not filed by the 21 persons being the complainants and represented by four original complainants as power of attorney therefore, said complaint cannot be said to be on behalf of 21 persons and, thereby, has refused to proceed with the execution. Said order is under challenge.
7. Initially this order was challenged by filing an appeal under section 15 of Consumer Protection Act, 1986 by said Mangalmurti Co-operative Housing Society Ltd. (Proposed). It appears that since the said society was not party to the main complaint and the order was passed in view of the objection raised at preliminary stage in execution disposing of execution application, we found that the appeal under section 15 is not tenable. Equally we found that there is no order under section 27 and, therefore, appeal under section 27-A was not tenable. Under these circumstances, Ld.counsel prayed for leave to convert the said appeal into revision petition so that State Commission can consider the matter under section 17(1)(B) of Consumer Protection Act, 1986 and, accordingly, leave was granted by the State Commission by order dated 06/1/2010 and also issued a notice to the respondent. In view of this order appeal which was filed by the said proposed society was to be converted into revision petition and on such conversion Registry was supposed to deregister the appeal and register it as revision petition. However, presently, Ld.counsel for the Society filed memo showing that 21 persons who were not parties to the original complaint and also to the execution petition, as persons filing the revision petition and claiming review of order dated 22/5/2009 which is impugned order. The manner in which the memo has been drafted that shows that the concerned advocate is not aware of difference between the revision and the review. It requires to be stated that revision is to be entertained by the superior courts while review application has to be filed before the forum which has passed the order and that too if the power of review is permissible under the law. Title of this revision petition itself shows that such permission was not taken by the counsel who has drafted the revision. Let the fact as it is. What is interesting to note is that that when the permission for proposed society has been granted to convert appeal into revision under section 17(1)(B), there was no permission granted by the State Commission to add the parties, namely, 21 persons who are not parties to the complaint and execution petition, to add them as parties in revision petition. In fact if they desire to add them as parties, then Ld.counsel for the parties should have made an appropriate application before the State Commission to add them as party and/or they could have filed separate revision petition on their behalf. However these simple niceties of invoking remedies under the law has not been followed by the Ld.counsel who filed such a memo. Therefore, even though memo is on record that memo cannot be said to be in consonance with the order and permission which have been granted by order dated 06/1/2010 to convert appeal into Revision. We therefore, struck down the said memo from the record. What we find is that that the revision memo as filed is not in consonance with the orders granted by the State Commission and, therefore, said revision memo is hereby struck off from the record of this Commission.
8. We have noted in the above facts that the proposed Society which initially has filed appeal and has obtained permission to convert appeal into Revision, was not party to original complaint. Therefore, said Society was/is not entitled to file execution petition under Section 25(3) of Consumer Protection Act, 1986. Said society is also not entitled to file application under section 27 of the Consumer Protection Act, 1986.
9. We have already noted in above paras that the initial complaint was filed by four persons as complainant. They have filed said complaint for themselves only. Even though those four complainants were possessed of power of attorney of 21 persons who are/were similarly situated and/or are/were having same interest, yet the complaint on their behalf was not filed. We also have noted that said complaint was not filed in representative complaint, after making compliance of section 2(6)(iv) and section 12(1)(c ) of Consumer Protection Act, 1986. There was no compliance of order 1 rule 8 of Civil Procedure Code as provided in Section 13(6) of Consumer Protection Act, 1986. Though these legal deficiencies are existing District Consumer Forum passed order in favour of complainants and 21 other persons who are not parties to the complaint. In view of all these facts the execution application filed by proposed society is/was not tenable. It has been rightly rejected by the District Consumer Forum. Hence the order:-
ORDER Appeal/Revision petition stands disposed of accordingly.
Copies of the order be furnished to the parties.
(Dhanraj Khamatkar) (S.R.Khanzode) (S.B.Mhase) Member Judicial Member President Ms.