Herculeno William Fernandis vs Sudhir Vishnu Rane

This appeal (execution) under Section 27A of the Act 1986 is in challenge to the Order dated 29.07.2019 passed by the State Commission in execution application no. 26 of 2017 in complaint no. 204 of 2014.

We have heard the learned counsel for the appellant (the ‘complainant’) and for the respondents (the ‘directors’ of the ‘developer co.’) and have perused the record.

Complaint no. 204 of 2014 was allowed by the State Commission vide its Order dated 14.09.2016.  The award made, as contained in para 13 of the said Order, is reproduced below for reference:

Consumer complaint is allowed with costs quantified at Rs.15,000/- (Rupees Fifteen Thousand only) to be paid by the opponent to the complainants.

Opponent is directed to hand over possession of row-house bearing No.8 admeasuring 74.53 sq.mtr. (802 sq.ft.) BU, on plot survey No.96, Hissa No.6/14 at Village Mouje Nirwade, Tal. Sawantwadi to the complainants with all necessary documents after receipt of remaining consideration of Rs.1,31,200/- (Rupees One Lakh Thirty- One Thousand Two Hundred only) within two months. Complainants are directed to pay remaining consideration of Rs.1,31,200/- (Rupees One Lakh Thirty-One Thousand Two Hundred only) to the opponent within two months from the date of order. If opponent refused to accept said amount, deposit the same in this Commission under intimation to the opponent. Within two months from the date of receiving remaining consideration from the complainants or intimation of deposit of it in the State Commission, the opponent should hand over possession of said row-house to the complainants.

Opponent is directed to pay Rs.50,000/- (Rupees Fifty Thousand only) towards mental agony and Rs.50,000/- (Rupees Fifty Thousand only) towards financial loss to the complainants within two months from the date of this order.

One set of the complaint compilation be retained and rest of the sets be returned to the complainant.

Copies of the order be furnished to the parties.

Appeal no. 1497 of 2016 filed under section 19 of the Act 1986 by the developer was disposed of by this Commission vide its Order dated 20.09.2018. The observations and directions made, as contained in paras 3 to 10 of the said Order, are reproduced below for reference:

When the appeal was taken up by this bench on 06-12-2016, the following Order was passed:

“Heard the learned counsel for the appellant.

“He stated that in terms of the order of the State Commission, the appellant had already received the amount of Rs. 1,31,200/- and already made attempts to handover the possession on 03.12.2016 and they were prepared to handover the possession of the property, subject to fulfilling the paper formalities by the complainant.  However, they were aggrieved with the order of the State Commission by which, compensation had been awarded to the complainant in para 1 and 3 of the operative part of the order.

“Issue notice to the respondent limited to the direction given in para 1 and 3 of the impugned order returnable on 27.04.2017.

“The operation of the para 1 and 3 of the impugned order is stayed, subject to deposit of 50% of the amount awarded with the State Commission, unless already deposited, which shall be kept in the shape of an FDR initially for a period of one year.”

That is, the notice of the appeal to the respondent was limited to the direction given in paras 1 and 3 of the impugned Order of the State Commission.

Today, during arguments, learned counsel for the appellant submitted that having regard to what was recorded on 06.12.2016, he is limiting his prayer to only paras 1 and 3 of the impugned Order.

We note that the substantive dispute, which relates to payment of the remaining consideration by the complainant to the builder co. and handing over of the possession of the subject property by the builder co. to the complainant, as recorded in para 2 of the impugned Order, has not been disputed or agitated in this appeal.

Only the cost of litigation (para 1) and the compensation (para 3) have been agitated.

In our considered view, cost of litigation of Rs. 50,000/- awarded by the State Commission is just, appropriate and reasonable, and needs no interference in appeal.

In respect of compensation, the State Commission has made its award of Rs. 50,000/- towards mental agony and Rs. 50,000/- towards financial loss (total Rs.1,00,000/-).  We are of the considered view that compensation of Rs. 50,000/- will be commensurate with the loss and injury, and needs no interference in appeal. However, insofar as Rs. 50,000/- toward financial loss is concerned, we note that the Act 1986 is for consumer justice, and not for prospecting.  We feel that the cost of Rs.50,000/- towards financial loss is unjustified and inappropriate.

The Order of the State Commission is modified to the extent that in para 3 of its operative portion the Rs. 50,000/- awarded towards financial loss is deleted.

The rest of the Order is upheld and sustained.

The first appeal stands disposed of accordingly.

Admittedly the State Commission’s Order dated 14.09.2016 as partially modified by this Commission’s Order dated 20.09.2018 has attained finality within the meaning of section 24 of the Act 1986

The State Commission vide its impugned Order dated 29.07.2019 has dismissed the complainant’s execution application. The gist of its examination, leading to the dismissal, is reproduced below for reference:

Our attention is also invited to the photographs showing Row-House is ready and complainants were not ready and willing to execute Sale Deed pursuant to the order passed by us. The affidavit of the accused also indicated that complainants communicated with the Sub-Divisional Officer, Sawantwadi, Dist. Sindhudurg, Maharashtra by letter dated 29/06/2019 from Mr.H.W. Fernandes asking the authority concerned not to grant occupancy permission on the presumptive ground that the construction is illegal and that there was no gutters/drains, no proper sewerage system and took objection for the Office concerned to issue Completion Certificate and Approval for the building project on the ground that the construction is illegal. The communication therefore militates against not only our order in the Execution Proceeding, but also against the final order which was passed in consumer complaint No.204/2014 dated 14/09/2016 whereby opponents were directed to hand over possession of Row-House bearing No.8 admeasuring 74.53 sq.mtrs. (802 sq.ft.) situated at Plot Survey No.96, Hissa No.6/14 at Village Nirwade, Taluka Sawantwadi, Dist. Sindhudurg to the complainants with all necessary documents after receiving remaining consideration of Rs.1,31,200/- within two months with effect from 14/09/2016. Hon’ble National Commission while it modified the order had reduced the monetary liability payable on account of litigation cost and compensation for mental agony and rest of the order was confirmed. Since respondent/accused whose statement was recorded before us on 26/02/2019 assured us that Row-House Number was given as 984/8 and duly registered in the records of Nirwade Grampanchayant, Taluka Sawantwadi, Dist. Sindhudurg and also the fact that he had obtained Completion Certificate of the Architect as well as from the Village Grampanchayat, Nirwade-Local Authority. Respondents established their willingness and readiness to comply with the final order. It is only because of inaction and misrepresentation on the part of executants/complainants that the respondents could not comply with the final order. Under these circumstances, we are left with no option but to dismiss the Execution Application. Hence, Execution Application is dismissed. No order as to costs. Copies of the order be furnished to the parties.

The present appeal (execution) has been filed by the complainant.

Vide its Order dated 14.09.2016 in complaint no. 204 of 2014 the State Commission had inter alia directed that possession of the subject row-house “with all necessary documents” be handed over by the developer to the complainant after the complainant pays the balance consideration of Rs. 1,31,200/- to the developer, with timelines for respective compliance. This direction was sustained by this Commission while passing its Order dated 20.09.2018 in appeal no. 1497 of 2016.

In its said appeal it was submitted before this Commission by the developer on 06.12.2016 that the balance consideration of Rs.1,31,200/- had been received by it. It was also submitted that it was prepared to hand over possession of the property subject to “fulfilling of the paper formalities by the complainant”.

The complainant’s execution application has now been dismissed by the State Commission vide its impugned Order of  29.07.2019 even though the row-house in question has not been handed over to the complainant.

The main reason on which the State Commission has dismissed the execution application is that the complainant had written to the Sub-Divisional Officer not to grant “occupancy permission” to the developer on some “presumptive ground”. The State Commission has held that this “militates” against not only its order in the execution proceedings but also against its final order dated 14.09.2016 passed in complaint no. 204 of 2014.

This approach is wholly erroneous.

We may first observe that the direction to hand over possession “with all necessary documents” means that the possession be handed over with inter alia including the occupancy certificate from the competent authority. That a valid occupancy certificate had been procure from the designated authority was also inter alia to be ensured by the State Commission during the execution proceedings.

The complainant was within his rights to write to authority(ies) if he had some grievance and wanted to make any point. And it was for the concerned authority to take the appropriate action as per the rules. But adopting a view that some communication to some authority “militates” against its orders and therefore the execution application warrants dismissal is totally untenable.

The State Commission has also made an observation that the “Respondents established their willingness and readiness to comply with the final order”.  But the fact remains that the final order has actually not been complied with, possession of the row-house has as yet not been handed over by the developer to the complainant.

The effect of the State Commission’s impugned Order is that even though the consideration has been paid in full by the complainant to the developer and even though the State Commission’s Order dated 14.09.2016 as partially modified by this Commission’s Order dated 20.09.2018 has attained finality under section 24 of the Act 1986, and is thus duly enforceable, yet the execution application stands dismissed and the complainant has been left with no remedy through which he may actually take possession of the row-house.

Pertinently the execution proceedings were being undertaken under section 27 of the Act 1986 which provides for punishment with imprisonment or fine or both in case of failure or omission in compliance. Here it is an admitted position that the row- house has not been handed over to the complainant but yet rather than proceeding and duly enforcing the order under execution or in case of failure or omission in compliance on the part of the developer to proceed to punish its directors with sentence of imprisonment or fine or both the State Commission has strangely deemed it fit to dismiss the execution application on meritless untenable grounds.

This is complete miscarriage of justice and misappreciation of the law.

We have no other alternative but to unhesitatingly set aside the impugned Order dated 29.07.2019 of the State Commission and to make directions that the State Commission shall ensure that the developer complies with the order under execution and duly hands over possession of the subject row-house with all necessary documents to the complainant failing which it may proceed further in due course of law to punish the directors of the developer under section 27 of the Act 1986.

The parties are directed to appear before the State Commission on 02.05.2023.

The Registry is requested to send a copy each of this Order to the parties and to their learned counsel as well to the State Commission immediately. The stenographer is requested to upload this Order on the website of this Commission immediately.