MONEY MAGNUM CONSTRUCTIONS vs ARVIND RAJARAM DESHMUKH, & ORS.

These first appeals have been filed under section 19 read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 04.08.2016 passed by the Maharashtra State Consumer Disputes Redressal Commission (hereinafter referred to as ''the State Commission'') vide which the consumer complaints filed by the complainants/respondents, i.e., CC/14/20 and 14/21 were partly allowed and the appellant builders were directed interalia to handover the possession of the property in question to the complainants and also to execute and register agreement to sell etc.

At the very outset, the learned counsel for the appellants has drawn attention to ground B of the memo of appeal in both the cases, which reads as follows:-

"Because though the matter was heard by a Bench of the State Commission presided over by Shri P.B. Joshi, Presiding Judicial Member and Shri Vinay V. Borikar, Judicial Member, the order came to be signed after one of the Members who had heard the matter had expired. In the instant case, the Impugned Order is dated 04.08.2016 and on the last page of the Impugned Order above the name of the Judicial Member it has been endorsed as follows "(Sad demise of one 08/08/2016 after oral order)". This clearly indicates that before the reasoned order was dictated or typed or even engrossed for the purpose of a final judgment/order, one of the Members had expired. It is a well settled principle of the Law of Jurisprudence that if a matter is heard by two Principal Judges/Members and if there is a demise of one of the Judges/Members before the order is signed, typed or engrossed, the correct procedure ought to be followed is that the order ought not to have been passed and the matter ought to have been reheared. The impugned order is therefore wholly unsustainable in law and warrants interference with and setting aside of by this Hon''ble Commission in exercise of Appellate Jurisdiction."

The learned counsel for the appellant submitted that the matter was heard by a Bench of the State Commission consisting of Sh. P.B. Joshi, Presiding Judicial member and Sh. Vinay V. Borikar, Judicial Member and the order was orally made on 04.08.2016.However, Shri Vinay V. Borikar, Member unfortunately died on 08.08.2016 before the order in question, was dictated or typed.On the impugned order, the factum of the "sad demise on 08.08.2016 after oral order" has been recorded.The learned counsel stated that the impugned order was not sustainable in law, since the matter should have been reheard by another Bench of the State Commission.

The learned counsel for the complainant/respondents, however, opposed the plea placing reliance upon Order XX Rule 8 of C.P.C., saying that the order signed by the other Member was valid in the eyes of law.The learned counsel, however, could not say with certainty, whether the said order had been signed by Sh. Vinay V. Borikar, Member before his death.

It would be seen from the above facts that the impugned order in question, was signed by the Presiding Member of the Bench, who heard the matter, after the death of Sh. Vinay V. Borikar, Judicial Member. The factum of death of the said Member on 08.08.2016 has been recorded on the order itself. Had the said Member put his signatures on the order before his death, there was no need to mention the said remarks on the order. I am not in agreement with the plea taken by the learned counsel for the respondents that the said order could be called valid in the eyes of law placing reliance on Order XX Rule 8 of the Code of Civil Procedure, 1908. The said rule contemplates signatures by the successor of the deceased judge or by a superior court. In the present case, the matter was heard by two Members of a Bench and hence the said order could be called valid only if both of them have signed the same. The order under appeal is, therefore, not sustainable in law. Both the appeals in question, are, therefore, allowed and the impugned order passed by the State Commission is set aside. The matter is remitted back to the State Commission for hearing the same on merits and then to pronounce a fresh order based on the facts and circumstances of the case.