State Consumer Disputes Redressal Commission
Mr. Vinayak Janardan Limaye vs Mr. Vishnu Govind Kulkarni, Thro Heirs on 19 April, 2012
A/05/1429
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
First Appeal No. A/05/1429
(Arisen out of Order Dated 03/09/1997 in Case
No. 165/1995 of District Ratnagiri)
1.Mr. Vinayak Janardan Limaye Tilak Aali, Ratnagiri
2. Mr. Jivaji Janardan Limaye Tilak Aali, Ratnagiri
3. Mr. Shivram Janardan Limaye Tilak Aali, Ratnagiri ...........Appellant(s) Versus
1. Mr. Vishnu Govind Kulkarni, Thro heirs B-2, Om-Shanti Bhavan, Tilak Aali, Ratnagiri
2. Mrs. Nalini Sudhakar Golwalkar B-2, Om Shanti Bhavan, Tilak Aali, Ratnagiri
3. Mr. Prakash Vishnu Kulkarni C/o. Mrs. Suvarna M. Kulkarni, B-3 & B-4, Om-Shanti Bhavan, Tilak Aali, Ratnagiri
4. Mr. Vilas Vishnu Kulkarni B-3 & B-4, Om-Shanti Bhavan, Tilak Aali, Ratnagiri
5. Mr. Madhav Vishnu Kulkarni B-3 & B-4, Om Shanti Bhavan, Tilak Aali, Ratnagiri
6. Mrs. P. P. Shevade C/o. Mrs. Suvarna M. Kulkarni, B-3 & B-4, Om-Shanti Bhavan, Tilak Aali, Ratnagiri
7. Mrs. Suvarna Madhav Kulkarni B-3 & B-4, Om-Shanti Bhavan, Tilak Aali, Ratnagiri ...........Respondent(s) BEFORE:
Hon'ble Mr. S.R. Khanzode PRESIDING MEMBER Hon'ble Mr. Narendra Kawde MEMBER PRESENT:
Adv.Patwardhan ......for the Appellant Adv.Madhavi Thatte ......for the Respondent (Per Shri S.R.Khanzode, Honble Presiding Judicial Member ) (1) Heard with consent of both the parties.
We also prefer to ignore the fact as to whether the present proceedings to be treated as revision as appeal may not lie.
(2) This appeal takes an exception to an order dated 18/07/2005 in Execution Application No.12/98 which make an observation for execution of sale deed as per the order passed in Consumer Complaint No.165/95 decided on 03/09/1997 and as further modified in Appeal No.1247/97, Shri Vinayak Janardhan Limaye & ors. Vs. Vishnupant Govind Kulkarni & ors., by an order dated 18/12/2002 passed by State Commission. This modified order is subject matter of the Execution Application No.13/98 and herein the impugned order dated 18/07/2005 is passed. It records stating that the sale deed be executed as ordered or otherwise punishment will be imposed as per Sec.27 of the Consumer Protection Act, 1986 (the Act for the sake of brevity). Feeling aggrieved by such observation, the appeal is preferred.
(3) We find the impugned order in the present form would not stand in the eyes of law. As a mode of execution when the executant prefers a remedy U/s.27 of the Act, the forum (as Judicial Magistrate First Class) was under
obligation to address itself for taking cognizance of the offence punishable U/s.27 of the Act and if cognizance is taken then to hold the trial in a summary trial procedure as provided under Code of Criminal Procedure, 1973, and thereafter may punish or acquit the accused, namely, the appellants in the instant appeal.
This procedure is not followed.
Instead of following such procedure, the forum proceeded to make observation, supra, and directed that the appellant shall execute the sale deed and if not they will be punished U/s.27 of the Act. Such observation is unwarranted and not as per the law. Before parting with the order, we may observe that the Commission has already elaborately explained the procedure U/s.27 of the Consumer Protection Act, 1986 in the matter of Amir Ali Tharani Vs. Rajesh Sukhtankar and another, II (2011) CPJ 23.
(4) We may further make it clear that the execution, in the light of observation made earlier, is expected to proceed and both the parties shall take steps accordingly.
We hold accordingly and pass the following order.
ORDER (1) Appeal is allowed.
Impugned order dated 18/07/2005 is set aside.
(2) Both the parties shall remain present before the District Forum, Ratnagiri on 28/05/2012 and thereafter the execution application U/s.27 of the Consumer Protection Act, 1986 shall be proceeded with according to law.
(3) Copy of this order be supplied forthwith to the District Forum.
(4) In the given circumstances, both the parties shall bear their own costs.
(5) Appeal stands disposed off accordingly.
Pronounced on 19th April, 2012.
[Hon'ble Mr. S.R. Khanzode] PRESIDING MEMBER [Hon'ble Mr. Narendra Kawde] MEMBER pgg