State Consumer Disputes Redressal Commission
Sayyed Izhar Ashraf Ashrafi vs Arsh Constructions & Ors. on 9 February, 2010
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI Execution Application No. 12/2009 Date of Filing: 04/07/2009 In Consumer Complaint No.27/2007 Date of Order: 09/02/2010 Sayyed Izhar Ashraf Ashrafi, Applicant Naperol Towerss, A-wing, Flat No.81, (Org.Complainant) R.A.Kidwi Marg, Wadala (W), Mumbai- 400 031. V/S 1. Arsh Constructions, Respondents 1 Albion Place, Hotel Heritgae (Org.Opp.Parties) Compound, Sant Savta Marg, Byculla (E), Mumbai. 2 Esmail Hashma Merchant R/at- 7, Gulistan building, 17, FAarroq Umerbhai Marg, 3rd floor, Agripada Mumbai. 3. Anwar Esmail Merchant, R/at-7, Gulistan Building, 17, FAarroq Umerbhai Marg, 3rd floor, Agripada Mumbai. 4. Salim Esmail Merchant R/at- 7, Gulistan Building, 17, FAarroq Umerbhai Marg, 3rd floor, Agripada Mumbai. 5. Rahimbhai Esmial Merchant, 7, Gulistan Building, 17, FAarroq Umerbhai Marg, 3rd floor, Agripada Mumbai. 6. Shamin Anwar Merchant 7, Gulistan Building, 17, FAarroq Umerbhai Marg, 3rd floor, Agripada Mumbai. Quorum : Justice Mr.S.B.Mhase, Hon'ble President Mr.S.R.Khanzode,Honble Judicial Member.
Mr.D.Khamatkar, Honble Member.
Present:
Adv.Mr.R.K.Yadav for applicants.
Adv.Mr. A.L. Mookhtiar for respondents.
:- ORAL ORDER :-
Per Shri S.B.Mhase, Honble President :
This is a execution application to execute the order passed in consumer complaint no.27/2007. The said complaint has been disposed by the State Commission in view of the consent terms recorded. The consent terms which were duly signed by the opp.party and complainant and their advocates was presented on 23/06/2008 before the State Commission. The consent terms (Exhibit- B of case papers) are as follows:
1) By Consent the parties have settled their disputes. The parties withdraw all their allegations against each other. The Complainant and the O.P. party admit that the terms and conditions of the Agreement dated: 11/06/2008 entered into and executed by Zikar Haji Mohammed Virani and others and the opposite party shall be binding on the parties in the present proceedings and a copy of the same is annexed to these consent terms. The complainant shall pay to Anwar Esmail Merchant one of the partners of the O.P. firm Arsh Constructions in the name of the firm Arsh Constructions Rs. 1,93,500/- (Rupess One Lack Ninety thousand Five Hundred Only) towards additional cost of constructions and expenses over and above the balance consideration and balance sums due and payable by the complainant to the O.P. firm Arsh Constructions on the Agreement For Sale Dated: 9th August, 2006 and towards the payment of the same the complainant has issued to and handed over to the O.P. firm Arsh Constructions cheque no. 045811 dated 15/07/2008 amount of Rs.1,9 93,500/- drawn on The Memon Co-Operative Bank Ltd. in favour of the O.P. firm Arsh Constructions.
On presentation of these consent terms, the State Commission has passed the following order (Exhibit A of case papers):
1. Complaint stands disposed in terms of Consent Terms. 2.
Consent Terms shall be binding on both the parties and in case of default committed by either party, other party shall be at liberty to invoke the jurisdiction of this Commission to execute the said consent terms as if it is a decree passed by this Commission.
Thereafter, the present execution application has been filed. Initially, when this application was filed, it was titled as Application under Section 25 and 27 of Consumer Protection Act, 1986. However, at later stage of the proceedings, Ld.Counsel for the applicant converted this application into application under Section 25 of Consumer Protection Act, 1986 (hereinafter referred as Act for sake of brevity) and accordingly modfiied the prayer clause (e) of the execution application. Thus presently, we have to consider by way of execution the following reliefs:
(a) That this Honble commission be pleased to order and thereby attach the properties i.e. immoveable property of the Opposite Party situated at:
1.
7, Gulistan Building,17, Farooq Umerbhai Marg, 3rd floor Agripada, Mumbai- 400 011.
2. The Premises bearing no.1, Albion Place, Ground floor, Tata Compound (Hotel Heritage Compound), Sant Savta Marg, Byculla (W), Mumbai- 400 029.
3. The plot of Land bearing Plot No. A-537 Industrial area MIDC, Mahape, Thane Belapur Road, Navi Mumbai- 400 709.
4. The property situated at Merchant Classic Building, Shop No.1, Plot No.3, Sector No.48/A, Sea Wood, Nerul, New Mumbai- 400 070, for not complying the said order dated 23rd June 2008 including the Consent Terms dated 23rd June, 2008 and in view of enforcement of the said Consent Terms dated 23rd June, 2008 and Consent Terms dated 23rd June, 2008 filed before this Honble Commission.
(b) That this Honble Commission be pleased to order and direct the Opposite Party and its partner i.e. 1) Esmail Hasham Merchant, 2) Anwar Esmail Merchant, 3) Salim Esmail Merchant 4) Rahimbhai Esmail Merchant, 5) Shamin Anwar Merchant all residing at 7, Gulistan Building, 17 Farooq Umerbhai Marg, 3rd floor, Agripada, Mumbai- 400 011 to pay to the complainant a sum of Rs.16,000/- (Rupees Sixteen Thousnad Only) per month as and by way of damages for delaying the delivery of possession of the said flat a dmeasuring 420 sq.ft. carpet area bearing No.601, in CWing of A1 Raza TTowers situated at Rafi Ahmed Kidwai Marg, Sewree (W), Mumbai- 400 015. since 23 rd December 2008 till this date and/or further direct the Opposite Party and it partners to pay to the complainant the said amount of damages of Rs.16,000/- (Rupees Sixteen ThousandOnly) till such period i.e. till the date of physically delivering the possession of the said Flat bearing No.601 to the complainant under Section 25 of Consumer Protection Act, 1986.
(c ) That in the vent not complying the prayer clause (b)of this Application, this Honble Commission be pleased to order and direct the sale of the properties attached i.e.
1. 7, Gulistan Building,17, Farooq Umerbhai Marg, 3rd floor Agripada, Mumbaai- 400 011.
2. The Premises bearing no.1, Albion Place, Ground floor, Tata Compoundd (Hotel Heritage Compound), Sant Savta Marg, Byculla (W), Mumbai- 400 029.
3. The plot of Land bearing Plot No. A-537 Industrial area MIDC, Mahape, Thane Belapur Road, Navi Mumbai- 400 709.
4. The property situated at Merchant CClassic Building, Shop No.1, Plot No.3, Sector No.48/A, Sea Wood, Nerul, New Mumbai- 400 070
(d) That in the vent of non-compliance of the above mentioned prayers this Honble Commission be pleased to order the sale of the attached properties and to recover the said amount of damages from the sale prices of the said properties which may be received upon the sale of the said properties and to deliver the same to the complainant.
(e)That this Honble Commission be pleased to order and thereby direct the Opposite parties to deliver the possession of the Flat bearing no.601, admeasuring about 420 square feet, situated at C Wing. A1 Raza Towers situated at Rafi Ahmed Kidwai Marg, Seweree (West), Mumbai- 400 015 forthwith to the complainant in accordance with all the relevant rules and regulations.
On perusal of these reliefs what we find is that, that by these releifs the complainant has prayed that the directions may be given to the opp.party to perform their obligation, which was recorded in the consent terms. Before we consider the submissions of Ld.Counsel for the applicant/complainant we would like to mention that none of the prayers made in the execution application are in respect of the recovery of the amount from the opp.party and the complainant has not rightly made such a prayer because the consent terms recorded and accepted by the State Commission also did not provide for recovery of any amount from the opp.party. By and large, what we find is that, that on payment of Rs.1,93,500/-, additional cost of the construction and expenses of flat is the balance amount due and payable by the complainant to the opp.party firm/ Arsh Cconstriction for agreement for sale dated 09/08/2006 and on such payment being made, opp. Party shall give possession of flat no. 601 in C-wing of A1 Raza Towers situated at C.S.No. 446 (part) 447 (part), 448 (part) of a Parel Sewari Division in B.M.C. F/S ward, R.A.Kidwai Marg, Sewri (W), Mumbai- 400 015 within period six months from the date of consent terms. So, in short the complainant shall make payment as stated in the consent terms and thereafter, the opp.party shall deliver the possession of the flat is sum and substance of the consent terms.
Now, this consent terms are being executed by filing an application under Section 25 of Consumer Protection Act, 1986. We have asked Ld.Counsel for the applicant as to how the application is filed under Section 25 of the Act by the complainant is tenable. In reply to this question, Ld.Counsel submitted that Section 25 is enforcement of order of District Forum and State Commission and Honble National Commission, and therefore, he submitted that this is a provision for enforcement of the order of the Consumer Fora. He further made a submission that sub Section (1) and (2) though makes reference to the interim orders and manner of execution of the interim order, same is applicable for the final orders in Consumer Fora and therefore, consent terms which complainant desires to execute can be executed by following procedure as laid down under Section 25 sub Subsection (1) and (2) of the Act. Except this no other submission is made by the Ld.Counsel for the applicant. Though Ld.Counsel tried to take us through the consent terms to demonstrate that they are not acted by the opp.party even though part of the said consent terms which the complainant is supposed to obey are still not obeyed.
The submission of Ld.Counsel for the applicant is that sub Section (1) and (2) of Section 25 of the Act is applicable for the execution of the final order is misconceived. Sub Section (1) and (2) of Section 25 of the Act is as follows:
(1) Where an interim order made under this Act, is not complied with, the District Forum or the State Commission or the National Commission, as the case may be, may order the property of the person, not complying with such order to be attached.(2)
No attachment made under Sub-Section (1) shall remain in force for more than three months at the end of which, if the non-compliance continues, the property attached may be sold and out of the proceeds thereof, the District Forum or State Commission or the National Commission may award such damages as it thinks fit to the complainant and shall pay the balance, if any, to the party entitled thereto.
On plain reading of these Sections and following the golden rule of interpretation, namely, literal interpretation of the Section, it is patently clear that this provision has been provided to implement and enforce the interim orders made under the Act which are not complied with. That means whenever Consumer Fora stated in the said Section during the pendency of the complaint and / or appeal, revision and/ or in proceedings which can be entertained under this Act passes interim order as against the parties and said party has not complied with the order passed by the Consumer Fora, this sub Section (1) is attracted and in that circumstances consumer Fora may order that property of such person shall be attached for not obeying the interim orders of this Consumer Fora. Sub Section (2) is enabling provision for sub Section (1). Sub Section (1) gives power to consumer Fora to attach the property and sub Section (2) states that in what manner the attachment shall be carried out and to what extent attachment is existing as against the property. It has been made clear in sub Section (2) that attachment under Sub Section (1) shall remain in force not more than three month and at the end of which, if the non-compliance continues, the property attached may be sold and out of the sale proceeds, the District Forum or the State Commission or the National Commission, may grant or award damages to the complainants as it deems fit and the balance amount will be paid to the party entitled for the same.
Therefore, the attachment under sub Section (2) can only continue for period of three months and the party which is under obligation to obey interim order shall obey the said interim order within that period and thereafter if it is found that order is not obeyed, the Consumer Fora may sell the property and pay damages to the person in whose favour the interim order was/ is and balance amount to the persons whom the property belongs. This provision is made for the implementation of the interim orders. Ld.Counsels submission that this procedure is equally applicable for the final orders is misconceived. We can not read word final orders passed by District Fora under sub Section (1) of the Act. Therefore, the submission made by the Ld.Counsel for the applicant/complainant is hereby rejected.
Sub Section (3) of Section 25 of the Act is a provision which generally may apply to any order including final order. It provides that certificate can be granted by District Fora to Collector to recover the amount as arrears of land revenue in case the order of consumer Fora is not obeyed by the opp.party. In the present matter, there is no consent terms for recovery of the amount in favour of the complainant. On the contrary, the complainant is supposed to pay some amount as stated in the consent terms and thereafter, the opp.party is to deliver the possession of flat. On payment of amount by the complainant, the opp.party will be under obligation to deliver the possession. But for delivery of possession certificate can not be issued because sub Section (3) of Section 25 contemplates recovery of amount and not delivery of possession of any property. Thus, sub Section (3) of Section 25 of the Act is not applicable in the present execution application. Execution application is preferred by the Ld.Counsel is under Section 25 of the Act. We have to consider the case of the applicant only in respect of the Section 25. In the facts and circumstances stated above and law, we found that the present execution application filed for the relief which are claimed, supra, is not tenable and liable to be rejected.
We make it clear that rejection of the execution application, will not forfeit the right of the complainant to file appropriate application permissible under the law. This judgment is delivered in the facts and circumstances that Section 25 is not attracted and therefore, execution application is not tenable. Hence, the following order:
ORDER-:
1.
E.A.No.12/2009 stands rejected.
2. Dictated on dais in presence of parties.
3. Copies of the order herein be furnished to the parties as per rules.
(D.Khamatkar) (S.R.Khanzode) (S.B.Mhase) Member Judicial Member President Nbh