State Consumer Disputes Redressal Commission
Shri. Shaikh Vahidulla, vs M/S. Group Construction Company, on 26 June, 2013
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI -GOA EA No.03/2013 1. Shri. Shaikh Vahidulla, Major, lawyer by profession, Indian National, son of Shaikh Mahakumoddin, and wife, 2. Mrs. Hamida Bi Shaikh, Daughter of Shri. Sayed Saluddin, Wife of Shaikh Vahidulla, housewife, Major, Indian National, Both presently residing at E-13, Government Quarters, Altinho, Panaji, Goa. .. Complainants/D.Hs. v/s M/s. Group Construction Company, A partnership Firm, duly constituted Under the Indian Partnership Act, 1932, At present taken over by Shahajanand Investments Pvt. Ltd, Through their Directors, Shri. Rasiklal M. Gangani, Amprapali Building, Dr. Atmaram Borkar Road, Opp. Hotel Nova Goa, Panaji, Goa. .. O.Ps/J.Ds. Complainants/DHs are represented by Adv. Shri. S. Vales. O.Ps/J.Ds are represented by Adv. Ms. L. Rego. Coram: Shri. Justice N. A. Britto, President Shri. Jagdish Prabhudessai, Member Dated: 26/06/2013 ORDER
[Per Justice Shri. N. A. Britto, President] By the present application for execution filed on 14/03/13, the DHs seek for a direction to the JDs to execute the sale deed in respect of the Duplex Bungalow. On 24/06/13 they have also filed an application under Section 27 of the C.P. Act.
2. A reply has been filed by the JDs stating that the execution be kept in abeyance as balance of consideration of Rs. 6 lacs with interest thereon from 19/06/1995 till date has not been paid to them and which is the subject matter of Special Civil Suit No. 31/2004/A. They have also sought the execution of the sale deed in respect of flat No. A-24 situated on the 3rd floor, in Riviera Residency, Porvorim, Goa in their favour which is also the subject matter of the said Civil Suit.
3. We have heard Shri. Vales, the lr.
advocate on behalf of the DHs and Ms. L. Rego on behalf of the JD.
4. Shri. Vales, the lr. advocate would submit that it is implicit that the JD executes a sale deed in respect of the Duplex Bungalow alongwith the owners of the land. Lr. advocate further submits that the DHs are not required to pay Rs. 6 lacs claimed by them.
Lr. advocate submits that all issues between the complainants and JDs have now been settled by virtue of order dated 01/09/10 of the National Commission which is required to be complied.
5. On the other hand, Ms. L. Rego would submit that by virtue of the agreement between the parties the JDs were required to pay a sum of Rs. 6 lacs which they have claimed in the said Civil Suit.
6. In our view, there is no scope for giving any further direction to the JDs to execute the sale deed in respect of the said Duplex Bungalow. Since such a direction is already given by the National Commission. In case the complainants/DH were required to pay to the JDs the said sum of Rs. 6 lacs as balance of consideration towards the Duplex Bungalow, the Honble National Commission would have said so. A relief which is not given is deemed to have been denied to the JDs. A perusal of the order of the National Commission would show that the possession of the Duplex Bungalow has already been handed over to the complainants and likewise the possession of the Flat A24 handed over to the JDs (way back on 22/06/97). A perusal of the Order dated 9/11/09 of this Commission in CC No. 15/03 filed on 14/8/03 would show that the possession of the bungalow and the flat were simultaneously given along with possession letters in terms of agreement dated 19/09/95.
This would not have happened in case any balance consideration towards the bungalow was due to the JDs. This claim of the JDs is deemed to have been denied to the JD. Otherwise the Hon. National Commission would have said that the execution of the sale deed in favour of DH would be subject to the said payment of balance consideration.
7. The National Commission has observed that having considered that all the obligations have been performed by the parties (and which means no payment of balance consideration is to be made) so much so that the possession of the Duplex Bungalow and the flat have been handed over to the respective parties, they consider it a mere formality and therefore directed the Respondent/JD to execute the conveyance deed of the Duple Bungalow in favour of the complainants and the expenses required to be incurred towards stamp duty and registration charges to be borne by the complainants. Similarly, the National Commission directed the complainants/DHs to execute the sale deed simultaneously in respect of the flat No. 24-A in favour of the Respondent/JD for which the JD was required to bear the expenses in connection with the conveyance deed. The conveyance deeds were to be executed by both the parties simultaneously within a period of four weeks failing which it would be open to the parties to seek execution of the sale deeds through the State Commission in accordance with law.
In other words, one of the reliefs sought for by the JD in the Civil suit by the National Commission have been denied to them and the other has been granted in their favour. The Apex Court in Kanwar Singh Saini, 2012 (4) SCC 307 has held that when an Act creates a right or obligation and enforces the performance thereof in a specified manner, that performance cannot be enforced in any other manner. Therefore, there is no need of waiting for the result of the civil suit. The finding of the National Commission on both the reliefs has attained finality and thus has become res judicata.
8. The order of the National Commission dated 01/09/10 has attained finality and the same has not been complied with by both the parties by simultaneously executing the sale deeds within a period of four weeks. Any direction in that regard by this Commission would be superfluous in that both the parties have failed to comply with the order of the National Commission. In case the JD does not comply with the said order of the National Commission in the next four weeks we will have no other option but to initiate criminal proceedings against their Director Shri. Rasiklal M. Gangani for an offence punishable under Section 27(1) of the C.P. Act. Needless to observe the JD would be free to apply for similar action to be taken against the DHs.
9. With the above observations, we proceed to disposed off the execution application filed on 14/03/13.
[Shri. Jagdish G. Prabhudesai] [Justice Shri. N. A. Britto] Member President