State Consumer Disputes Redressal Commission
Shri. Girdharlal Mohanlal Gangani vs Mr. Anand Upadhya, on 10 April, 2013
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PANAJI-GOA RP. No.09/2013 1. Shri. Girdharlal Mohanlal Gangani major, married, Businessman, Civil Engineer, Builder and developer, r/o Galaxy Building, Near Mahalaxmi Temple, Panaji-Goa. Petitioner v/s 1. Mr. Anand Upadhya, major married, service, at present r/o shreeniketana, Mahishi Road, Malmadi, Dharwad, 580007, Karnataka. 2. Shri. Poma Pundolica Tari alias Kamlakant P. Chodankar major, married, landlord, r/o A/2, Balaji Co-op. Housing Society Ltd., Opp. Canara Bank, Kalina, Mumbai-29. 3. Smt. Jayshree Kamlakant Chodankar major, married, landlady, r/o A/2, Balaji Co-op. Housing Society Ltd., Opp. Canara Bank, Kalina, Mumbai-29. 4. The Bardez Taluka Co-op. House Mortgage Society Ltd., Having its registered office at Suvidha A4-G1 Comunidade Complex Housing Board Colony, St. Xaviers College Street, Mapusa-Goa. Through its Secretary Mr. Vithal A. Sawant (Deleted vide order dated 6th February 2006 of the Honble District Forum) 5. Mrs. Gracy Devassy H. No.392, Nairelem Morod, Caranzalem-Goa. Respondents Petitioner is represented by Adv. Shri. N.R.S. Bodke. Respondents not served. Coram: Shri Justice N.A. Britto, President Shri Jagdish Prabhudessai, Member Dated: 10/04/2013 ORDER
[Per Justice Shri N. A. Britto, President] The petitioner, a builder is the only JD in execution application No. 16/11. He has filed this revision against order the dated 22/02/13 of the lr. District Forum, North Goa at Porvorim by which his application dated 04/01/12 has been dismissed and he has been asked first to make the payment of the entire decretal amount to the Forum and then raise the issue of mortgage or otherwise.
2. The said application dated 04/01/12 was filed with the following prayer:
10. JD submits that the DH be directed to take appropriate steps, alternatively the JD be permitted to get the mortgage deed cancelled /released and appropriate and adjust the amounts required to be paid to the DH and so is prayed accordingly.
3. We have heard Shri. N.R.S. Bodke the lr.
adv. of the revision petitioner/J.D.
4. Some more facts are required to be stated to dispose off this revision.
5. The Respondent No. 1 herein is the complainant. He had entered into an agreement dated 02/01/1999 with the petitioner/JD who had agreed to sell to the complainant a flat for a sum of Rs. 5.5.lacs at Porvorim. The amount of Rs. 2.9 lacs paid by the complainant as per earlier memorandum of understanding between them was adjusted. As the complainant did not get the flat nor the refund of money, the complainant filed a complaint on or about 26/10/09. The complaint was filed against the Petitioner/JD as O.P. No. 1.
O.P. Nos. 2 and 3 in the said C.C. are stated to be the owners of the property where the petitioner/JD was to construct the said flat. O.P. No. 4 was Bardez Taluka Co-operative House Mortgage Society Ltd. It appears that the complainant had taken a loan of Rs. 1.65 lacs from the said Society mortgaging the flat proposed to be purchased by him from the petitioner/JD. O.P. No. 5, Smt. Gracy Devassy was a party who according to the complainant was about to buy the said flat proposed to be purchased by the complainant.
6. We do not know what plea the petitioner/JD took as O.P. No.1, in the said consumer complaint. The owners of the property, O.P. Nos. 2 and 3 did not contest the complaint. On application filed by O.P. No. 4, the said Society, their name came to be deleted by order dated 06/02/06. We also do not know whether the petitioner/JD had opposed the said application of O.P. No. 4, the Society dated 22/01/05 for deletion of their name. O.P. Nos. 2, 3 and 5 came to be discharged from the complaint in the final order/decree dated 01/10/08, and as already stated, O.P. No. 4, the said Society was deleted by order of the lr. District Forum dated 06/02/06 as a result of which the final order/decree came to be made only against the petitioner/JD by which he was required to refund to the complainant a sum of Rs. 2.9 lacs with simple interest thereon at the rate of 12% p.a from 02/04/1996 till the date of actual payment plus damages of Rs. 25,000/-.
7. The complainant then filed the execution, to execute the said final order/decree dated 1/10/08, on or about 04/07/11 alongwith a statement of account. The only objection taken by the petitioner/JD vide application dated 04/01/11 was about the said Mortgage Deed.
8. We could proceed on the assumption that the averments of para 4 of petitioners application dated 04/01/12 are incorrect, and it is the complainant who had a mortgaged, the said flat, proposed to be purchased by him from the petitioner for a sum of Rs. 1.65 lacs under the deed of transfer and mortgage dated 05/05/1999 which is still subsisting though a statement was made by the complainant on 26/11/12 before the lr. District Forum that the complainant had paid the entire sum due on the said loan of Rs. 1.65 lacs taken by him from the said Society, O.P. No. 4, in the complaint.
9. Shri. Bodke, the lr. advocate on behalf of the petitioner submits that the petitioner is unable to sell the flat on account of the subsisting mortgage created by the complainant in favour of the said Bardez Taluka Co-operative House Mortgage Society. Lr. advocate further submits that although the complainant remained absent in the execution proceedings on about eight occasions from 20/03/12 to 18/10/12, the lr. District Forum chose not to dismiss the execution application. Lr.
advocate further submits that although the Petitioner /JD on 25/03/13 sought time to enable the Petitioner/JD to file an appeal against the impugned order, the same was denied to him by the lr. District Forum. Lr. advocate however concedes that the impugned order has been passed by the Lr. District Forum though mistakenly he has referred to the impugned order in the memo of revision, as having been passed by the Lr. Sr. Member of the District Forum.
10. Be that as it may, we find from the copy of the order sheet produced on behalf of the petitioner, that after the petitioner filed the application dated 04/01/12 it was made clear by the complainant/DH that he did not wish to file a reply to the said application and yet the matter was adjourned for reply to 18/01/12 and again on 18/01/12 to 01/02/12. On the next date i.e. on 22/02/12 the D.H. was represented by Adv. Shri. DMello but it was JD who was absent and the matter was adjourned for the D.H. to take steps. We fail to understand what steps the D.H. was required to take when his decree/final order had remained without being complied with by the Petitioner/JD.
Shri. Bodke may be right that the D.H. was absent from 20/03/12 on eight occasions till 18/10/12 and the application for execution was not dismissed. It may be that it was not dismissed because the dismissal was not pressed for by the Petitioner/JD. If at all no time was granted on application dated 25/03/13, it was obviously because by then time to file an appeal against impugned order dated 22/02/13 had expired.
There is nothing on record to suggest that the said order dated 22/02/13 was pronounced on 25/02/13.
11. Admittedly, it is well settled proposition of law that an Executing Court cannot go behind and beyond a decree or final order. It has got to be executed as it is. The decree/final order only required the Petitioner/JD to pay to the complainant a sum of Rs. 2.9 lacs with interest at the rate of 12% plus Rs. 25,000/- with no other conditions attached. The Petitioner/JD has not produced on record the so called deed of transfer and mortgage dated 05/05/1999 executed by the complainant (Respondent No. 1 herein) with the said Bardez Taluka Co-operative House Mortgage Society Ltd. When asked whether the Petitioner/JD had given his consent to the complainant for execution of the said mortgage deed dated 05/05/1999, Shri. Bodke replies in the affirmative. When asked whether the owners of the property namely O.P. Nos. 2 and 3 in the said consumer complaint had given their NOC to enable the complainant to execute the said deed of mortgage, lr. advocate Shri. Bodke submits that he does not know about the same.
We are unable to understand as to how the existence of such a mortgage can come in the way of sale of the said flat being made by the Petitioner/J.D. Assuming there is one, the JD is certainly entitled to take proper steps, before the proper Forum to get the said mortgage redeemed or the mortgage deed discharged and then to recover the amount due, if any, from the complainant. However, such an issue, as sought to be raised by application dated 4/1/12 cannot be allowed to be raised with a view to delay or stall the execution proceedings.
Application dated 04/01/12 is nothing but an attempt to seek a new prayer, a new plea for the first time in execution, not contemplated by the final order/decree. This cannot be allowed. In the circumstances we do not find any illegality or material irregularity in the order of the lr. District Forum in insisting that the Petitioner/JD effects the payment of the decretal amount at the first instance for the payment was not made for too long. The application dated 04/01/12 was nothing but an effort to raise a new plea with a view to delay the payment to be made to the complainant in terms of the final order/decree dated 01/10/08.
12. We have noticed that the complaint which was filed on 26/10/04 took more than four years to be decided, contrary to the mandate of sub-section 3A of section 13 of the C.P. Act, 1986. We have also noticed that the lr. District Forum inspite of the complainant/D.H. stating on 04/01/12 that he did not wish to file a reply, went on adjourning the matter for reply from 4/1/12, 18/1/12, 01/02/12 and yet again on 07/01/13. We have also noticed that from 04/04/12 it is recorded in the order sheet that JD Nos. 2 and 3 were absent, when they were not even required to remain present as they were discharged from liability in the complaint by final order dated 01/10/08 and the execution was filed against the Petitioner/JD alone. It is good that the consumers are alert to their rights. It is time, the Fora under the C.P. Act remains alert to their duties.
13. The decree/final order need to be executed as it is. The Petitioner/JD is entitled to his remedies, if at all. He may obtain them from appropriate Forum. In the facts of this case we have find there is no merit in this revision and consequently we proceed to dismiss the same.
In case the amount due is not deposited by the Petitioner/JD before the next date all that the lr. District Forum is required to do how is to issue a recovery certificate in terms of Section 25 of the C.P. Act, 1986.
14. For aforesaid reasons the revision petition is hereby dismissed.
[Shri. Jagdish Prabhudessai] [Justice Shri N.A. Britto] Member President