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Judgment
Aggrieved by the order dated 19.01.2018 of the State Consumer Disputes Redressal Commission, Maharashtra (for short "the State Commission") in Execution Application No. EA/17/03 arising out of the order dated 21.10.2016 passed in Complaint No. 15/311, M/s Megapolis Landmarks LLP through its designated partners preferred this Execution Appeal under Section 19 of the Consumer Protection Act, 1986 (for short "the Act").
The facts in brief are that the Respondent/Complainant had filed Consumer Complaint No. 15/311 seeking possession of Flat No. 001, Ground Floor, Greenwood Estate, Wing D-3 situated at Village Hedutane, near MIDC Taloja, Panvel along with the certified copy of the Occupation Certificate together with compensation and costs. The State Commission vide the ex-parte order dated 21.10.2016 allowed the Complaint directing the Appellants herein to pay ₹25,000/- to the Respondent (hereinafter referred to as the Complainants); hand over peaceful and vacant possession of the subject flat within 30 days from the date of the order failing which the Appellants were directed to pay ₹5,000/- per day to the Complainants herein till the delivery of the subject flat.
It is observed from the record on 05.01.2017 an Execution Application was filed by the Complainants on the ground that though the order dated 21.10.2016 was sent to the Appellants by Registered Post Acknowledgement due on 13.12.2016, which was received by them on 15.12.2016, the Appellants did not comply with the said order dated 21.10.2016.
Authorized Representative appearing for the Complainants submitted that the Appellants had sent a letter dated 12.01.2017 requesting the Complainants to visit the office of the Appellant for completing the formalities such as signing of the Possession Letter. A demand draft of ₹25,000/-, towards the costs quantified by the Order of the State Commission, was also enclosed with the said letter. It was submitted that there was complete silence regarding the payment of ₹5,000/- per day which was directed to be paid by the State Commission. It was submitted by the Authorized Representative that in pursuance of the letter dated 12.01.2017 sent by the Appellants which was received by the Complainants on 16.01.2017, the Complainants immediately contacted the Appellants' office and were advised to visit the office on 19.01.2017. When Sh. Ramesh Kumar Bhosale visited the Appellants' office on 19.01.2017 to complete the necessary formalities with respect to taking the possession of the flat he was directed to meet the accountant and the partner of the Appellant Company regarding the penalty payable i.e. ₹5,000/- per day.
Thereafter though Sh. Ramesh Bhosale called the concerned officer again after 3 to 4 days he was informed that the Appellant would appear before the State Commission in the Execution Proceedings on 30.01.2017. It was vehemently contended that even on 30.01.2017, the Appellants did not offer the delivery of the possession. While so, on 17.02.2017, the Appellants filed an Affidavit before the State Commission that the Complainants approached their office on receipt of the letter dated 12.01.2017 but did not take possession. On 15.06.2017 there was a direction by the State Commission summoning the presence of the Appellant Company's partner before the State Commission on 06.07.2017. On 06.07.2017 an opportunity was given to the Appellants to explain as to why the final order dated 21.10.2016 was not complied by them. Thereafter Bailable Warrants were issued against the other partner Mr. Keyur Modi who never attended the proceedings earlier. On 31.07.2017 Mr. Keyur Modi appeared before the State Commission his statement was recorded and he deposed before the State Commission that he would hand over the possession of the subject flat within one hour. Hence the State Commission had directed the Appellants to pay an amount of ₹5,000/- per day till 31.07.2017 which is the date on which the possession was offered.
On 28.11.2017 the Appellants deposited a sum of ₹12,60,000/- in the State Commission in compliance of the penalty amount to be paid from 20.11.2016 till 31.07.2017 which is the actual date of handing over of possession. On a pointed query from this Commission that as to why the Complainants did not take possession when there was letter dated 12.01.2017, it was vehemently argued that the possession was actually offered to them only after the direction given by the State Commission on 31.07.2017.
As against this, Ld. Counsel for the Appellants strongly contended that the order dated 21.10.2016 was an ex-parte order and that the State Commission had erred in ignoring the letter dated 12.01.2017 and that they were always ready and willing to offer the possession of the subject flat to the Complainants, but it was the Complainants who did not turn up at their office for taking possession of the flat for reasons best known to them.
The impugned order of the State Commission in the Execution Application clearly states that possession was given only when direction was given by the Bench to avoid further consequences. It is pertinent to note that the Appellants herein did not challenge the substantive order which has attained finality and that the penalty amount directed by the State Commission has already been deposited and withdrawn by the Complainants. As against the argument of the Ld. Counsel for the Appellants that the Demand Draft of ₹25,000/- which was enclosed to the letter dated 12.01.2017 was also encashed by the Complainants, we are of the considered view that this ₹25,000/- was directed to be paid towards the costs by the State Commission and cannot be construed to be evidence for delivery of possession. The State Commission has rightly recorded that the possession letter shows that the Complainants have received possession only on 31.07.2017 and it is relevant to note that on 06.07.2017 when the accused was present before the State Commission along with his advocate, his statement was recorded and a query was posed by the State Commission regarding the non-compliance of the final order till that date. It was only after the direction of the State Commission on 31.07.2017, that the possession was offered.
For all the afore-noted reasons we do not see any irregularity or infirmity in the directions given by the State Commission in the impugned order and, therefore, this Execution Appeal fails and dismissed accordingly. No order as to costs.