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Judgment
Heard learned counsel for the appellant, and perused the material on record.
This appeal (execution) has been filed by the appellant against the Order dated 11.01.2019 of the State Commission in execution application no. 92 of 2017 in complaint case no. 104 of 2011.
As per the material available on file, provided by the appellant, the relevant Orders of the State Commission read as below:
(i) The State Commission partly allowed the complaint in c.c. no. 104 of 2011 vide its Order dated 10.10.2013:
- - - The Complainant has made out a case of deficiency in service against the Opponent developer. We hold accordingly and pass the following order:
ORDER
(1) Complaint is partly allowed.
(2) The Opponent developer is directed to refund the amount of ` 25,00,000/- together with interest @ 10 % per annum w.e.f. 06.12.2008 till realization of the amount within a period of 45 days, failing which penal interest @ 6% will be charged on the amount ordered to be paid till realization of the amount.
(3) Opponent developer is directed to pay ` 10,000/- as compensation for mental agony and ` 10,000/- as costs of litigation.
(as per the typed copy furnished by the appellant)
(ii) In execution proceedings in execution application no. 92 of 2017 in c.c. no. 104 of 2011 the State Commission passed the following Orders:
Dated: 12 Oct 2017
- - - Executant / complainant has produced before us Assessment Extract in Format-8 of Village Panchayat Hinjwadi, Taluka-Mulshi, District-Pune, to bring to our notice that following immovable properties were transferred in the name of Mrs. Savita Vasant Aher, wife of Ex-Director-Mr. Vasant Janardan Aher as also some properties were in the name of Ms. Neha Vasant Aher, daughter of Ex-Director-Mr. Vasant Janardan Aher and in the name of Sarvesh Vasant Aher, son of Ex-Director-Mr. Vasant Janardan Aher. Properties described in Assessment in Format-8 of Grampanchayat Hinjwadi, Taluka-Mulshi, District-Pune are as follows:-
i. Survey No. 262/3, construction of about 1000 sq. ft. on ground floor, 1000 sq. ft. on first floor and 1000 sq. ft. on second floor, total 3000 sq. ft. RCC construction with three toilets blocks in the area known as "Kirti Classic" Grampanchayat No.A-326.
ii. Survey No. 268/2/B, S.R. Apartment, First floor, Flat No. 101, admeasuring 628 560 sq. ft. RCC construction inclusive of toilet block in the area Anantanagar, Grampanchayat No.A-444.
iii. Survey No. 268/2/B, S.R. Apartment, First floor, Flat No. 106, admeasuring 628 sq. ft. RCC construction inclusive of toilet block in the area Anantanagar, Grampanchayat No. A-444/5.
iv. Survey No.268/2/B, S.R. Apartment, Fourth floor, Flat No. 402, admeasuring 468 sq. ft. RCC construction inclusive of toilet block in the area Anantanagar, Grampanchayat No.-444/19.
All these properties are belonging to Mrs. Savita Vasant Aher, wife of Mr. Vasant Janardan. Issue attachment order in respect of above immovable properties. Attachment to be effected through the Collector, Pune, who may depute Tahsildar of Mulshi Taluka to attach these properties, sealed the same under the Panchanama and report about attachment to this State Commission. Mrs. Savita Vasant Aher, who appears as Benami Transferee. Benami transactions are effected presumably to defeat the award passed in favour of executant / complainant. Hence, as long as there is no compliance of final order, attachment shall continue as ordered. We also restrain opponents from transferring or dealing with the immovable properties owned by Ms. Neha Vasant Aher, Ms. Neena Vasant Aher and Sarvesh Vasant Aher. Opponents shall furnish details of transfer transactions in respect of immovable properties of Directors of Sawali Home Makers Pvt. ltd. with effect from the date of filing of consumer complaint No. 104/2011. Matter stands adjourned to 11/12/2017.
// True Typed Copy //
(as per the typed copy furnished by the appellant)
(emphasis supplied)
Dated : 11 Jan 2019
ORDER
Shri. Shivaji Kawala - execution applicant is present in person. Smt. Savita Aher is present for accused. At the request of parties matter is taken on today's board. Execution applicant mentioned on the ground that explanation was called from Sr. P.I. of concerned police station regarding execution of Bailable Warrant of Arrest issued against Shri. Vasant Aher. It is the grievance of the applicant that attached property is already disposed of on the basis of forged document under sale deed dated 27/12/2017 by Smt. Savita Vasant Aher in favour of Bhalchandra Dadasaheb Chavan and Smt. Padmaja Bhalchandra Chavan. Property which is sold is identified as S. No. 262/3 total area 2 H 20 R plus 04 R at Mauje Hinjewadi area, District Pune. Revenue authority concerned must take note of the encumbrance upon the property pursuant to the order passed by the State Commission in execution application Nos. 92 and 93 of 2017. The land is already encumbered by the arrears of land revenue due to the State Government. Matter be listed on scheduled date.
[JUSTICE A.P. Bhangale]
PRESIDENT
[Usha S. Thakare]
JUDICIAL MEMBER
// True Typed Copy //
(as per the typed copy furnished by the appellant)
(emphasis supplied)
Dated: 30 Jan 2019
ORDER
Applicant / accused is present along with Advocate Prashant Kenjale and Advocate Akshay Vijay Kamble.
If entire award amount is deposited by the applicant / accused pursuant to final order passed dated 10.10.2013 in complaint no. 104/2011decided by the State Commission, further proceedings in the auction shall remain stayed, Tahsildar concerned shall permit to file affidavit regarding payment of entire award amount.
Learned Advocate for applicant submits that a sum of Rs.25 Lakhs is already deposited in the State Commission on 20.12.2017 (vide receipt at Exhibit H of compilation). That being so, rest of the amount be deposited as per award. Deposit is to be made in the case in which attachment is ordered. Compliance be reported to this Commission. Misc. application be registered after removal of office objections.
[JUSTICE A.P. Bhangale]
PRESIDENT
// True Typed Copy //
(as per the typed copy furnished by the appellant)
Dated : 29.03.2019
COMMON ORDER
[1] - - - Complainant is waiting for fruits of the order since very long since 10/10/2013. Unless the amount is refunded in the sum of Rs. 25,00,000/- with interest as awarded, complainant cannot record his satisfaction. Till then all necessary measures according to law will have to be taken. Hence, we issue Non Bailable Warrant of Arrest against Shri. Vasant Janardhan Aher. According to the execution applicant Shri. Vasant Janardhan Aher is having address at Plot No. 7, Kirti Gate, near KPIT gate, Marunje Road, Hinjewadi, Pune 411 057 under local limits of Rajiv Gandhi Infotech Park, Hinjewadi, Tal. Mulshi, Pune. While learned Advocate Shri. R.M. Dhomse Patil gave address of Shri. vasant Janardhan Aher - accused / opponent at Kapil Malhar Society, Bunglow 9, Baner, Pune 411 045. We direct the Sr. P.I. of Baner Police Station or Hinjewadi police station to arrest Shri. Vasant Janardhan Aher and he shall be produced before us on or before next date. We will pass further consequential orders pursuant to attachment on next date. Until next date residential flats which are in possession of interveners need not be put to auction. Non Bailable Warrant of Arrest be issued with assistance of complainant. All property belonging to the Directors of company shall be kept under attachment unless the award amount is paid to the complainants. The property shall be attached, locked and sealed and keys shall be produced before the Registrar (Legal). Await execution of Non Bailable Warrant of Arrest.
[2] Execution applicant / complainant moved an application dated 29/03/2019 for attachment of property. Issue order of attachment as prayed for to compel attendance of accused before us. Registrar (Legal) is directed to do needful.
Stand over to 10/06/2019.
Sd/-
[JUSTICE A.P. Bhangale]
President
Sd/-
[Dr. S.K. Kakade]
Member
// True Typed Copy //
(as per the typed copy furnished by the appellant)
(emphasis supplied)
The Order dated 11.01.2019 (also inter alia quoted above) has been impugned in the instant appeal (execution) before this Commission.
We note that:
(i) The said execution proceedings in execution application no. 92 of 2017 in c.c. no. 104 of 2011 are with regard to execution of the Order dated 10.10.2013 in c.c. no. 104 of 2011 which has admittedly attained finality within the meaning of section 24 of the Act 1986.
The appellant herein was not a party to the c.c. no. 104 of 2011, that is, he was neither a complainant and nor an opposite party.
As such he is also not a party in the execution proceedings in execution application no. 92 of 2017 in c.c. no. 104 of 2011, that is, he is neither a decree holder and nor a judgement debtor.
(ii) A perusal of the Orders dated 12.10.2017, dated 11.01.2019 (impugned Order), dated 30.01.2019 and dated 29.03.2019 (all quoted above) in execution application no. 92 of 2017 in c.c. no. 104 of 2011 shows that the State Commission, in proceeding with execution in the normal wont, is inter alia also taking recourse to 'enforcement' under section 25(3) of the Act 1986.
The State Commission has inter alia recorded in its impugned Order dated 11.01.2019 that:
Execution applicant mentioned on the ground that explanation was called from Sr. P.I. of concerned police station regarding execution of Bailable Warrant of Arrest issued against Shri. Vasant Aher. It is the grievance of the applicant that attached property is already disposed of on the basis of forged document under sale deed dated 27/12/2017 by Smt. Savita Vasant Aher in favour of Bhalchandra Dadasaheb Chavan and Smt. Padmaja Bhalchandra Chavan. Property which is sold is identified as S. No. 262/3 total area 2 H 20 R plus 04 R at Mauje Hinjewadi area, District Pune. Revenue authority concerned must take note of the encumbrance upon the property pursuant to the order passed by the State Commission in execution application Nos. 92 and 93 of 2017. The land is already encumbered by the arrears of land revenue due to the State Government.
(as per the typed copy furnished by the appellant)
(emphasis supplied)
The said one Bhalchandra Dadasaheb Chavan mentioned in the State Commission's above-referred Order dated 11.01.2019 is the appellant herein in the instant appeal (execution) before this Commission.
Thus it is seen that the said one Bhalchandra Dadasaheb Chavan, who was neither a party in the complaint case, that is, nor a complainant and nor an opposite party, and is neither a party in the execution proceedings, that is, nor a decree holder and nor a judgement debtor, is the appellant herein.
If at all he has to raise any issues and contentions in respect of the execution proceedings, or, specifically, in respect of the enforcement proceedings under section 25(3), he should file a proper application before the State Commission, duly listing his issues and contentions and duly enunciating the reasons for being granted an opportunity to be heard, for the State Commission to take a decision on merit as per the law.
During the course of arguments, on being questioned as to his locus to come before this Commission in such manner and in such facts and situation and to inter alia argue apropos the final Order dated 11.01.2019 of the State Commission that is under execution and apropos the various Orders of the State Commission in execution proceedings, including the impugned Order dated 11.01.2019, learned counsel for the appellant submitted that "this bench is dealing with the case with a closed mind" and that "he wants the case to be transferred to another bench".
If at all a request for transfer of this case from this bench had to be made, it should have been made by filing a formal application as per the normal wont, or, at the very least, before the commencement of the arguments, and not on a relevant and material question being asked during the course of the arguments.
The submission for transferring the case to another bench is well-evidently an attempt to browbeat the bench. It is dismissed.
The learned counsel was requested to proceed further with his arguments, which he kindly did.
Learned counsel submitted that an application was made to the State Commission for impleadment. The same has been dismissed by the State Commission.
Learned counsel was requested that if at all the appellant is aggrieved by an Order of the State Commission dismissing his application for impleadment, he should, and is at liberty to, challenge such Order in appeal before this Commission, for this Commission to take a decision on merit as per the law, and not impugne any earlier Order of the State Commission in the manner it has been impugned in the instant appeal (execution).
Learned counsel submitted that the State Commission has as yet not issued its Order of dismissing his application for impleadment.
Learned counsel was requested to show a copy of the application made before the State Commission (the same being relevant and material).
Learned counsel submitted that he has not annexed a copy of the said application with his instant memo of appeal before this Commission.
In our considered view, in the facts and situation presently obtaining, and as presented before us today, the one Bhalchandra Dadasaheb Chavan has no locus to challenge the State Commission's impugned Order dated 11.01.2019 or to argue apropos the final Order dated 10.10.2013 under execution or to argue apropos any of the various Orders of the State Commission in execution proceedings annexed with his memo of appeal.
Further, the onus to, at the very least, provide a copy of the application made before the State Commission for impleadment was on the appellant, which onus he has not discharged.
Enforcement proceedings under section 25 and penal proceedings under section 27 are the teeth of the Act 1986, which is for better protection of the interests of consumers. Unwarranted and unnecessary interference in Orders passed in the normal wont of execution proceedings by the forum below should, ordinarily, be avoided, and especially so on the basis of some selective and incomplete information and material provided by an appellant who was neither a party in the complaint case and is nor a party in the execution proceedings, unless a palpable jurisdictional error or violation of a legal principle or miscarriage of justice is well evident and forthcoming. No such element is visible in the instant appeal (execution).
In the above mentioned facts and situation, we find the appeal (execution) to be patently misconceived and totally devoid of merit. It is dismissed with stern advice of caution to the appellant through imposition of cost of Rs. 50,000/- to be deposited by the appellant in the Consumer Legal Aid Account of the State Commission within four weeks from today.
The submission quoted in para 7 above, being well-evidently an attempt to browbeat the bench, is not viewed favourably, especially so in the obtaining facts and context. A cost of Rs. 50,000/- is imposed on the appellant, to be deposited in the Consumer Legal Aid Account of the State Commission within four weeks from today.
On the bench informing learned counsel of its decision of dismissing the appeal (execution) with cost of Rs. 50,000/- and of imposing cost of Rs. 50,000/- for the submission recorded in para 7 above (total cost 50,000 + 50,000 = Rs 1 lakh), learned counsel submitted that he would like to withdraw the appeal (execution).
In our considered view, in the overall facts and situation, and after hearing the arguments in detail, and after perusing all available material on record, and after informing our decision in the bench, it would be inappropriate to allow withdrawal of this appeal (execution).
The request for withdrawing this appeal (execution) is declined.
There is self-admitted delay of 87 days in filing this appeal (execution) before this Commission. We are however not going into the aspect of delay, in such appeal (execution) filed by the one Bhalchandra Dadasaheb Chavan, who was neither a party in the complaint case and is nor a party in the execution proceedings.
Needless to add that the State Commission shall continue to undertake the execution proceedings before it as per the law.
Let a copy each of this Order be sent to the State Commission and to the decree holders and to the judgement debtors by the Registry within seven days from today.