State Consumer Disputes Redressal Commission
Sh. Santosh Jeevan Sharma. vs Sh. Rakesh Sharma. & Ors. on 21 May, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
Revision Petition No.: 24/2017
Date of Presentation: 26.07.2017
Order Reserved On : 26.03.2018
Date of Order : 21.05.2018
......
Santosh Jeevan Sharma resident of Sharma Building New Tutu
Shimla-11.
...... Revisionist/Auction purchaser
Versus
1. Rakesh Sharma.
2. Smt. Meena Sharma wife of Rakesh Sharma.
3. Mayank Sharma son of Shri Rakesh Sharma.
4. Ms. Divya Sharma D/o. Shri Rakesh Sharma.
5. Shri Arun Sharma S/o. late Sh. M.K. Dandora.
6. Smt. Shakuntla Devi W/o. late Sh. M.K. Dandora.
7. Smt. Kiran Sharma W/o. Pradeep Pandey D/o. late Sh. M.K.
Dandora.
All residents of Clublodge No.1 U.S. Club Shimla-171001
Himachal Pradesh.
......Non-revisionists/executors
8. Rock Land Leasing & Finance Co. Ltd. through its
Managing director registered office 81/a Himalaya House 23
K.G. Marg New Delhi 1100001.
9. Rock Land Leasing & Finance Co. Ltd. through its Branch
Manager Himrus Building near Himland Hotel Shimla
District Shimla.
10. Shri Jagmohan Chawla S/o. Shri P.C. Chawla Managing
Director Rock Land Leasing & Finance Co. Ltd. 81/A
Himalaya House 23 K.G. Marg New Delhi 1100001.
......Non-revisionists/non-executors
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
1
Whether reporters of the local papers may be allowed to see the order? Yes.
Santosh Jeevan Sharma Versus Rakesh Sharma & Ors.
(R.P. No.24/2017)
For Revisionist : Mr. Ravi Shankar Sood
Advocate.
For Non-revisionists No.1 to 7: None.
For Non-revisionists No.8 to 10 : Ex-parte.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
Present revision petition is filed against order dated 13.06.2017 passed by learned Executing Forum in execution petition No.36/2016 title Rakesh Sharma & Ors. Versus Rockland Leasing Limited & Ors.
Brief facts of Execution Petition:
2. Shri Rakesh Sharma and others filed consumer complaint under section 12 of Consumer Protection Act 1986 against non-revisionists No.8 to 10. Consumer complaint was allowed by learned District Forum on dated 15.06.2004.
Learned District Forum ordered non-revisionists No.8 to 10 to refund the amount as mentioned in para-1 of the order passed by learned District Forum with interest @ 12% per annum from the date of filing of complaint till actual payment. Detail of para-1 of order passed by learned District Forum is quoted in toto:-
Name of the complainant Amount Maturity
1. Rakesh Sharma Rs.100000/- 27.06.98 Rs.1250/- 27.06.98 Rs.1083/- 27.06.98 Rs.15000/- 16.04.99 Rs.15000/- 16.04.99 2 Santosh Jeevan Sharma Versus Rakesh Sharma & Ors.
(R.P. No.24/2017)
2. M.K. Dandora Rs.6966/- 07.07.98
3. Seema Sharma Rs.10000/- 01.09.98 Rs.40000/- 21.10.98 Rs.10000/- 21.10.98
4. Master Mayank Sharma Rs.5000/- 20.03.99 Rs.10000/- 16.04.99
5. Master Divya Sharma Rs.10000/- 16.04.99
3. Thereafter Non-revisionists No.1 to 7 Rakesh & others filed execution application No.36 of 2016 before learned Executing Forum under section 25 & 27 of Consumer Protection Act 1986. Executor sought relief of auction of property of non-executors by way of auction. Learned Executing Forum ordered that certificate would be issued for amount due against non-executors No.8 to 10 to the Collector for recovery of amount as arrears of land revenue. Learned Executing Forum also ordered Collector to delete the name of auction purchaser Shri Santosh Jeevan from remarks coloumn of Jamabandi qua land comprised in khata/ khatauni No.166/204 khasra No.135 measuring 173-75 hectares situated in Mauza Khalini Tehsil and District Shimla-H.P as per Jamabandi for the year 1999-2000. Learned Executing Forum further ordered that when amount would be received from Collector then non-revisionists No.1 to 7 would be informed accordingly. Learned Executing Forum further ordered that no further action is required in the execution and learned Executing Forum consigned the 3 Santosh Jeevan Sharma Versus Rakesh Sharma & Ors.
(R.P. No.24/2017) execution application to record room. Feeling aggrieved against order passed by learned Executing Forum revisionist Shri Santosh Jeevan auction purchaser filed present revision petition before State Commission.
4. We have heard learned advocate appearing on behalf of revisionist and we have also perused entire record carefully. None appeared on behalf of non-revisionists despite matter listed for arguments on 21.03.2018, 22.03.2018, 24.03.2018 & 26.03.2018. State Commission decided to dispose of revision petition on merits.
5. Following points arise for determination in present revision petition.
1. Whether revision petition filed by revisionist auction purchaser is liable to be accepted as mentioned in memorandum of grounds of revision petition.
2. Final order.
Findings upon point No.1 with reasons:
6. It is proved on record that earlier former execution petition No.09/2006 was filed by Rakesh & others non-revisionists No.1 to 7 under section 25 & 27 of Consumer Protection Act 1986 against non-revisionists No.8 to 9. It is proved on record that learned Executing Forum in execution No.09/2006 attached the immovable property of non- 4
Santosh Jeevan Sharma Versus Rakesh Sharma & Ors.
(R.P. No.24/2017) revisionists No.8 to 10 comprised in khata No.166 khatauni No.204 Khasra No.135 measuring 173-75 hectares situated in Mauza Khalini Tehsil and District Shimla-H.P as per Jamabandi for the year 1999-2000 placed on record. It is also proved on record that auction proceedings were conducted by learned Executing Forum in former execution petition No.09/2006 and auction was conducted by Tehsildar (Urban) Shimla on dated 27.12.2007. It is also proved on record that on dated 27.12.2007 seven persons participated in the auction proceedings and revisionist namely Santosh Jeevan was declared as highest bidder in the auction proceedings by Tehsildar Shimla (Urban). It is also proved on record that thereafter revisionist namely Santosh Jeevan has deposited a sum of Rs.350000/-(Three lac fifty thousand) on 27.12.2007 in favour of President learned District Forum Shimla by way of cheque.
7. It is proved on record that thereafter on 03.04.2008 none appeared on behalf of non-revisionists No.1 to 7 before learned Executing Forum in execution petition No.09/06 and execution petition No.09/06 was dismissed in default by learned Executing Forum.
8. It is proved on record that thereafter non- revisionists No.1 to 7 Rakesh Sharma & others did not restore the earlier execution petition No.09/2006 which was 5 Santosh Jeevan Sharma Versus Rakesh Sharma & Ors.
(R.P. No.24/2017) dismissed in default but filed subsequent fresh execution petition No.36/2016 before learned Executing Forum. It is proved on record that in execution petition No.36/2016 non- revisionists No.1 to 7 filed application for setting aside sale in favour of revisionist and for deleting the name of revisionist from revenue records as auction purchaser. It is also proved on record that revisionist auction purchaser namely Santosh also filed application before learned Executing Forum for confirmation of sale which was finalized on 27.12.2007. Auction purchaser revisionist pleaded in the application that auction purchaser revisionist has deposited entire auction amount on 27.12.2007 by way of cheque before learned District Forum to the tune of Rs.350000/-(Three lac fifty thousand). Even in revision petition auction purchaser revisionist has deposited an amount to the tune of Rs.755000/-(Seven lac fifty five thousand) as per office report placed on record.
9. Learned Executing Forum did not obtain any evidence from revisionist auction purchaser or from executors/non-revisionists No.1 to 7 as per mode mentioned under section 13(4) of Consumer Protection Act 1986 before dispose of both the applications filed by non-revisionists No.1 to 7 and revisionist. It is well settled law that whenever there is disputes qua facts inter se parties then Executing Forum is 6 Santosh Jeevan Sharma Versus Rakesh Sharma & Ors.
(R.P. No.24/2017) under legal obligation to obtain evidence of the parties as per mode mentioned under section 13(4) of Consumer Protection Act 1986 by way of affidavits qua controversial facts. State Commission is of the opinion that learned Executing Forum has committed material procedural irregularity by way of not obtaining evidence of revisionist and non-revisionists No.1 to 7 upon two independent applications filed by them. It is well settled law that pleadings are not substitute for controversial facts. See Latest HLJ 2017 H.P 1011 Oriental Insurance Company Ltd. Versus Champa Devi & other. See 2018(II) CPJ 15 (B)(CN) Uttra Khand Sri Ram General Insurance Company Ltd. Versus Mahesh Chander & others. It is not expedient in the ends of justice and on the principle of natural justice to dispose of revision petition on merits unless material procedural irregularity is not rectified by learned Executing Forum.
Point No.2: Final Order
10. In view of findings upon point No.1 revision petition is allowed. Order of learned Executing Forum Shimla dated 13.06.2017 passed in execution petition No.36/2016 is set aside and execution petition is remanded back to learned Executing Forum with order that learned Executing Forum will obtained fresh evidence by way of affidavits of non- revisionists No.1 to 7 upon application filed by them relating 7 Santosh Jeevan Sharma Versus Rakesh Sharma & Ors.
(R.P. No.24/2017) to setting aside of sale by way of public auction dated 27.12.2017 in favour of revisionist Santosh. It is further ordered that learned Executing Forum will also obtain fresh evidence from revisionist by way of affidavit relating to application filed by revisionist for confirmation of sale conducted by Tehsildar Shimla (Urban) on dated 27.12.2017. After obtaining fresh evidence of parties by way of affidavits learned Executing Forum would dispose of both the applications afresh filed by non-revisionists No.1 to 7 and revisionist. Report of Tehsildar Shimla (Urban) dated 27.12.2007 and dated 31.12.2007 filed in execution petition No.09/2006 placed on record and cheque issued by auction purchaser dated 27.12.2007 placed on record would form part and parcel of order. Observations would not effect merits of execution application in any manner and would be strictly confined for disposal of revision petition. Learned Executing Forum would dispose of execution petition within two months after receipt of file strictly in accordance with law because proceedings under Consumer Protection Act 1986 are time bound proceedings and requires expeditious disposal. File of learned Executing Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free 8 Santosh Jeevan Sharma Versus Rakesh Sharma & Ors.
(R.P. No.24/2017) of cost strictly as per rules. Revision petition is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 21.05.2018 K.D 9