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Judgment
Dr. Inder Jit Singh, Presiding Member
The present Revision Petition (RP) has been filed by the Petitioner against Respondents as detailed above, under section 21(b) of Consumer Protection Act, 1986, against the order dated 21.09.2016 of the State Consumer Disputes Redressal Commission, West Bengal (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. A/298/2016. Although in the RP it is mentioned that RP is against judgment and order dated 21.09.2016 passed by State Commission in FA No. A/298/2016, whereby State Commission affirmed the order dated 24.03.2014 passed by District Consumer Disputes Redressal Forum, Howrah, West Bengal (hereinafter also referred to as District Forum), a perusal of the order of State Commission dated 21.09.2016 show that challenge in FA No. A/298/2016, which was under Section 27A of Consumer Protection Act, 1986, is to Order No. 30 dated 24.02.2016 and Order No. 31 dated 09.03.2016 passed by District Forum in EA No. 72/2014 arising out of CC No. 293/2013 decided by District Forum on 24.03.2014. No doubt in the main RP, the petitioner has given requisite detail of EA/72/2014 and Appeal No. A/298/2016 having been filed against order dated 09.03.2016 in EA/72/2014. Hence, the instant RP is taken as having been filed against FA No. A/298/2016 in which order No. 30 dated 24.02.2016 and order No. 31 dated 09.03.2016 passed by District Forum in EA/72/2014 in CC/293/2013 were challenged.
Brief facts of the case, as stated in the order of State Commission are reproduced below:
“the Respondents herein being Complainants initiated a consumer complaint under Section 12 of the Act against the Appellant and eight others on 19.08.2013 on the allegation of deficiency in services on the part of them in respect of execution and registration of a Southern side flat on the 3rd floor at Holding no.77/1, Panchanantala Road, P.S.- Bally, Dist- Howrah in a consumer dispute of housing construction. By a final order dated 24.03.2014, the said complaint was allowed virtually on consent of Opposite Party no.9 i.e. the Appellant with a direction upon the Opposite Party no.9/Appellant to execute and register a Deed of Conveyance in favour of the Respondents in respect of 'B’ Schedule property i.e. a fiat measuring about 1000 sq. ft. more or less consisting of three bed rooms, two toilets, one living-cum-dinning, one kitchen and one veranda on the Southern side of the 3rd floor and a garage of 180 sq. ft. on the ground floor at Holding no.77/1, Panchanantala Road, P.S- Bally, Dist- Howrah. Since the said Final Order has not been obeyed, the Complainants filed an execution application before the Ld. District Forum being EA/72/2014.
By Order no.30 dated 24.02.2016, the Ld. District Forum, fixed to 18.04.2016 for compliance by the Judgement Debtor/Appellant otherwise, a stringent steps like issuance of W/A may be ordered. On the prayer of the Judgement Debtor, the record was put up on 09.03.2016 and by Order no.31 on that date, the ld. District Forum after rejecting the application of the Judgement Debtor directed the Judgement Debtor to comply with the order otherwise necessary order would be passed. Challenging those orders, the Judgement Debtor has come up in this Commission with the present appeal.”
We have carefully gone through the orders of State Commission, District Forum in CC as well as in EAs, agreement and other relevant records. The petitioner herein (Appellant before State Commission and OP-9 before the District Forum) are not disputing their obligation under the agreement dated 26.02.2010, vide which a flat measuring about 1000 sq.ft. at the Southern side of 3rd floor of Plot No. 77/1, along with a garage of 180 sq.ft., as described in Schedule B, has been sold by Petitioner herein to the Respondents herein and Petitioner received Rs.4.00 lakhs as earnest money out of the total consideration of Rs.12,16,000/-. Schedule B of the Agreement is reproduced as under:-
“ALL THAT Flat at the Southern side of the third Floor upon the land in schedule - 'A’ in holding No. - 77/1, Panchanantala Road, Police Station - Bally, District - Howrah and measuring about 1000 sq.ft. more or less consisting of 3 Nos. Bed Rooms, 2 Nos. Toilets, 1 No. living cum dining, 1 No. Kitchen and 1 No. Veranda including super built up area and common facilities including lift and the undivided proportionate share of land beneath of the holding to the area of the Flat and One Garage at the North-Western Side of the Ground Floor upon the land in Schedule A in the above holding measuring about 180 sq.ft. more or less and the undivided proportionate share of land beneath of the holding to the area of garage.”
However, later on, plan was sanctioned in February 2011, for raising G+4 building at Plot No. 77, which is an amalgamation of Plot No. 77/1 and 76. Appellant before the State Commission (Petitioner herein) has submitted before the State Commission that as per order of the District Forum, the Appellant is ready and willing to execute a Southern side flat of 1000 sq.ft. to the respondents, but the respondents are not willing to accept the same on the plea that it is located in the middle of the building. Respondent on the other hand contended before the State Commission that as per Schedule ‘B’ of the agreement, he is entitled to a flat on the Southern side on 3rd floor, further contended that said Municipal holding No. 77/1 is butted and bounded by a Municipal drain on the east side, which means that Decree Holder is entitled to get a flat on South-eastern side on the 3rd floor and not in the middle portion of 3rd floor on Southern side.
State Commission in its order has observed as follows:-
“Whether the flat in question falls on the middle portion of Southern side of the 3rd floor or whether the Respondents/Complainants are entitled to a flat on the extreme eastern-southern side is a question of fact and the same can only be ascertained by an Executing Court and not by an Appellete Court. Admittedly, challenging the Final Order dated 24.03.2014 in connection with CC/293/2013 no appeal has been preferred. Accordingly, the order passed by the Ld. District Forum dated 24.03.2014 in connection with complaint case wherefrom the Execution Application stems attained finality. In accordance with the said order, the Appellant is bound to execute and register Deed of Conveyance in favour of the Respondents/Decree Holders with respect to ‘B’ Schedule property. Now, as per Schedule ‘B’ to the petition of complaint, the subject flat is measuring about 1000 sqft. more or less on the southern side of the 3rd floor upon the land in Schedule A' being Holding no.77/1, Panchanantala Road. The Schedule ‘A’ indicates that on the eastern side to the property, there is a Municipal drain. After amalgamation of Plot nos76 and 77/1, a new plot being Plot no.77 has emerged but the location would not be changed.
The Ld. District Forum by their Order no.30 has observed that the status of the Executing Court is nothing and it cannot go beyond the final order passed by the Forum and it has to execute the order as per the terms mentioned in the order and has no power to vary or modify the terms and also has no authority to question the legality and correctness of the said order. In Order no.31, the Ld. District Forum has also observed that if on the prayer of the Judgement Debtor, the part consideration amount of Rs.4,00,000/- is returned it would go against the final order.
The observations made by the Ld. District Forum appear to me quite justified. It is well settled that an Executing Court cannot go behind the order. In other words, when a consumer approached the Ld. District Forum for implementation of a particular order, it is bounden duty of the Executing Court to see that its order is being obeyed, executed and carried out in its letter and spirit. I also find the anxiety of the Ld. District Forum to execute the said order and the same has been reflected in order no.30 dated 24.02.2016.”
Petitioner has challenged the said Order dated 21.09.2016 of the State Commission mainly on following grounds:
(i) the State Commission has erred in law and failed to assess the real dimension of the dispute. The dispute was mainly centered with regard to the choice of the apartment by the respondent/complainant which perse is hypothetical since there is no fundamental legal attachment there. The State Commission analysed the dispute in different modulation which has no connection with the matter in hand as the claim of respondent never the less is conflicting issue with practicality. The State Commission has exercised jurisdiction beyond authority without trying to probe into the dispute rather confirm the order of the District Forum. From the order of the State Commission, it is evident that there is a clear manifestation of non-application of mind, as a result the order has reached as a trite one without having any legal attachment. The State Commission should have observed that the agreement being an unregistered one even executed prior to sanction of the plan, cannot have any legal force.
(ii) The petitioner has offered a complete flat to the respondents to occupy subject to payment of consideration amount, in case that is conclusive to the respondents, the blanket offer is there to take back the entire earnest money with interest.
(iii) The State Commission has ignored the report of the Commissioner validly appointed by the District Forum and the State Commission has not made any whisper in the order disputing the findings of the Commissioner, by the reason the report of Commissioner stands no-challenge as none of the parties or any of the Forum has ever challenged the veracity of the report of the Commissioner. The finding of the State Commission confirming the order of the District Forum is illegal and not acceptable in the eye of law when there is an open offer to take possession of a complete flat upon payment of consideration, alternatively to relinquish by taking back the amount deposited with interest. The petitioner has no manner of interest to deceit the respondents so the offer was assailed to reduce the grievance of the respondents. The invocation of the purported order of the State Commission can open a flood gate to any person with an unregistered agreement can put their claim to get a flat of his own choice, which is not possible. The motive of the respondents to get the unlawful claim which would be an example that on the face of the threat the unlawful gain can be achieved even ignoring the findings of the legally appointed commissioner.
Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
7.1. It is contended by the Petitioner that the Petitioner is the developer of the property herein who is ready to deliver the possession of the property as mentioned under the ‘Schedule-B’ of the un-registered agreement for sale with the present Respondents. The agreement was executed before the sanction of plan, the purchasers without seeing the plan entered into the agreement with some partial payment. The plan was sanctioned in 2011. The respondents were repeatedly asked to take possession of the flat as per the schedule of the premises but they were not willing to take. The Petitioner never had malafide intentions in delivering of the possession of the flat as per schedule of the premises. The respondents are not accepting the flat of premises, comprising 1000 sq. ft. area with garage etc. per contra through their mischievous intent want to grab a flat around 1400 sq.f.t which has been allotted to a third party.
7.2. It is further contended by the Petitioner that Advocate Commissioner was appointed to identify the flat in question as per the schedule. Through his report dated 27.11.2015, he has identified the position of the flat on the southern side at middle portion and through the mandate of its report, the petitioner is willing to give exactly the same property as mentioned thereby. The Petitioner has offered a complete flat to the respondents to occupy subject to payment of consideration amount, in case that is conclusive to the purchasers/respondents the petitioner for the interest of justice and to stop the litigation has several times offered to take back the entire earnest money with interest but the respondents/complainants stand rigid and claims for the property which is perverse and is deceptive.
7.3. On the other hand the Respondents/complainants contended that the Petitioner is a glaring example of abuse of the process of law, which has been filed only to further harass the complainant/decree holder. The Petitioner is now denying to hand over the flat (at South-East position) on a plea that the flat has already been given to some other person, which is a reckless motive to violate the orders passed by the District Forum and the State Commission. The complainants had sent a Draft Deed of Conveyance to the Petitioner on 09.03.2016. This Draft Deed was prepared as per one submitted by them on 05.11.2015 before the District Forum. The concerned Flat is actually located on the South-East corner of the amalgamated Plot, while the Petitioner is wrongfully insisting for a Flat in the middle of the building. A Bank Draft for Rs.8,16,000/- has been kept ready since 19/06/2015 i.e. more than two years and the complainants have been paying huge interest on Bank Loan because of fault of the Petitioner. Further the concerned Bank is pressuring hard to create Equitable Mortgage after registration of the said flat upon which loan has been sanctioned, immediately, as per rule. In view of the above, it is submitted that this Petition is liable to be dismissed with exemplary cost upon the Petitioner with direction to immediately deliver possession of the correct flat as per order dated 24.03.2014 of the District Forum and complete the registration immediately as per original agreement.
We have also gone through the report dated 27.11.2015 of the Advocate Commissioner. The relevant portions of this report are reproduced below:
x x x x
“It is found from the Order No.25 Dated 05.11.2015 for commission, the Ld. Court directed me to note whether the alleged 3rd floor flat is as per schedule of the agreement alongwith the garage as per schedule of the agreement.
Now I report as follows:-
According to the said order being No.25 Dated 05.11.2015 I have gone through the agreement and after go through the said agreement dated 26.02.2010 amidst Sri Rebati Mohan Mukherjee & others and Sri Nabendu Banerjee and another, I requested both the parties to this instant complaint case and their Ld. Advocate to identify the flat in question at 3rd floor of schedule of the agreement. The JDR alongwith their Ld. Advocate identified the flat at 3rd floor but the DHRs and his Ld. Advocate did not agree with the identification but I found that the flat in-question is on the southern side (at middle portion) of the total G+4 newly constructed building and the Garage in-question is situated on the North-Western side of the newly constructed building but it is disputed by the DHR and his Ld. Advocate.
x x x x
The above report does not give any detailed reasons for the findings, and does not inspire confidence. Hence, much reliance cannot be placed on this report.
In view of foregoing and after considering the rival contentions of the parties, we tend to agree with the above stated observations of State Commission. We find that State Commission has given a well-reasoned order. We find no reason to interfere with the same, hence the same is upheld. Accordingly, Revision Petition is dismissed.
The pending IAs in the case, if any, also stand disposed off.