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Judgment
Ram Surat Ram Maurya, Presiding Member
Heard both the parties.
With the consent of the parties, the appeal is decided finally.
The dispute between the parties relates to the execution of the order dated 12.04.2019 passed in Consumer Complaint No.182 of 2016, whereby State Commission has partly allowed the complaint and directed the appellant to hand over possession over the flat in dispute, within two months, after removing deficiency, if any, in it and execute sale deed.
The respondents filed Execution Application No. 61 of 2020, on 30.06.2020, for executing the order dated 12.04.2019. It has been stated in the execution application that the appellant instead of complying the order dated 12.04.2019, issued a letter dated 10.06.2019, demanding Rs.518407/- from the respondents. After receiving the letter 10.06.2019, the respondents tried for a meet with the appellant and talk in respect of his demand letter 10.06.2019 but the appellant declined to hear the respondents. By raising illegal demand, the appellant was avoiding execution of the decree, as such this execution application was filed.
After notice of the Execution Application, the counsel for the appellant appeared before State Commission on 15.10.2020. On that day, State Commission has directed the appellant to hand over possession of the flat, complete in all respect or show cause as to why the proceedings under Section 72 of Consumer Protection Act, 2019 be not taken against him. On the next date, fixed in Execution Application, i.e. 09.11.2020, State Commission directed Rakesh Jain, Director of the appellant and Deepak Jain, Authorized Signatory to comply the order under execution or appear before State Commission on next date and show cause as to why the proceedings under Section 72 of Consumer Protection Act, 2019 be not taken against them. On the next dates i.e. 10.12.2020 and 19.01.2021, Rakesh Jain and Deepak Jain did not appear before State Commission nor they complied with the order but State Commission gave one more opportunity to Rakesh Jain, Director of the appellant and Deepak Jain, Authorized Signatory to comply the order under execution or appear before State Commission on next date and show cause as to why the proceedings under Section 72 of Consumer Protection Act, 2019 be not taken against them. On 21.01.2021, State Commission issued warrant against Rakesh Jain, Director of the appellant and Deepak Jain, fixing 10.02.2021.
On 10.02.2021, Rakesh Jain, Director of the appellant and Pankaj Rathore appeared before State Commission. They were directed to hand over possession of the flat to the respondents within one month, without raising any additional demand. The appellant challenged the order dated 10.02.2021 in Appeal Execution No.28 of 2021. This Commission, after hearing both the parties, by order dated 16.03.2021, held that vide order dated 12.04.2019, State Commission had directed handing over possession in terms of the agreement and, therefore, the impugned order whereby the decree holder has been discharged from making any payment due under the agreement, is illegal and perverse. On these findings, Appeal Execution was allowed and the order dated 10.02.2021 was set aside. The parties were directed to appear before the State Commission. Thereafter, the matter was listed before State Commission on 15.11.2021. State Commission, by the impugned order, found that the appellant instead of complying the order dated 12.04.2019, issued a demand letter dated 10.06.2019 for Rs.518407/-, in the head of maintenance charges and holding charges and thereby deliberately harassing the decree holders, who were regularly paying huge amount towards EMI on the bank loan and rent for residence. Therefore, the appellant was directed to handover possession of the flat within 3 days and also directed to consider the compensation payable to the decree holders.
I have considered the arguments of the counsel for the parties and examined the record. State Commission, in final order dated 12.04.2019, has recorded a categorical finding that there was no deficiency in construction of the flat and on that findings reliefs (b), (c), (d) and (e) of the complaint were refused. The decree holders were offered possession vide letter dated 21.02.2015 and after order dated 12.04.2019, on 10.06.2019. If the decree holders avoided taking possession of the flat on some reason, which was not found to the valid, then the appellant cannot be blamed for it. State Commission has to go into the issue as to whether, the appellant was justified in raising demand of maintenance and holding charges. The order of State Commission dated 10.02.2021, directing to give possession without additional demand has already been set aside by this Commission on 16.03.2021. This Commission has recorded a finding that the decree holders could not be discharged from making payment due under the agreement. State Commission has failed to notice, the findings recorded in the order dated 12.04.2019 and the order of this Commission dated 16.03.2021 and again directed for handing over possession without any demand. Due to default in discharge of the obligation by the respondents, the possession has been delayed.
However, in compliance of the order of State Commission dated 15.11.2021, the appellant has handed over possession to the decree holders/the respondents on 30.11.2021. This fact is admitted to the respondents, who are present in person in the Court room at the time of hearing. This Appeal has been filed as in the order dated 15.11.2021, it has been observed that State Commission would consider with regard to compensation payable to the decree holders on the next date fixed.
However, till today, the State Commission has neither passed any order for payment of compensation nor lodged any FIR against the builder or any Officer of it. Part of the order dated 15.11.2021 has already been complied with. So far as the demand of the appellant, which according to them, is in accordance of the terms of the agreement is concerned, the appellant is permitted to file a detail reply before State Commission along with necessary documents. I hope and trust that State Commission shall go into the question as to whether the decree has been executed in accordance with the Flat Buyers Agreement or not and pass suitable order in this respect.
With the aforesaid observation, the Appeal Execution stands disposed of. Since the possession has already been handed over, as such personal presence of Managing Director and Legal Officer of the appellant is exempted.