UDAYKUMAR RAMNIVASJI VYAS vs TRILOK SINGH MULKRAJ BUDHRAJA

-THE Revisionist Udaykumar has preferred this appeal against the order dated 29.8.2006 passed by Addl. District Forum, Nagpur in E.A. No. 88 of 2005 whereby he was directed to give possession of the farm house No. 20 B, admeasuring 10000 sq. ft. (constructed area 413 sq. ft.) situated at Mouza Panjri Kh. No. 60, P.H. 42, Tah. Nagpur Rural, Nagpur (for short said farm house) to respondent Trilok and execute its sale-deed in his favour. He was also directed to pay the remaining balance interest amount @ 12%. Alternatively, Udaykumar was ordered to refund the consideration amount along with 12% interest.

RELEVANT facts are as under: Initially, respondent/complainant Trilok filed a complaint under Section 12 of Consumer Protection Act, 1986 inter alia contending that Revisionist/O.P. had agreed on 15.1.1999 to sell said farm house to him for the consideration of Rs. 3,40,000 which was paid by Trilok to Revisionist within 5 days and thereafter an agreement to that effect was executed between the parties. However, as Udaykumar did not respect his part of the agreement, Trilok knocked the door of the Forum by filing Complaint No. 492/2001 which came to be decided by the Nagpur Forum by a common order dated 6.9.2002. This order was challenged by Udaykumar in A.No. 1636/2002 which came to be decided by Mumbai Commission as dismissed, by its order dated 23.12.2002. It is undisputed fact that, as neither of the parties challenged this order of the State Commission, the order of the Forum attained finality.

Thereafter, Trilok filed execution proceeding bearing No. E.A. 88/2003 for executing order of the Forum dated 6.9.2002 in C.C. No. 492/2001. In the said Execution Proceeding, Udaykumar filed an application contending that he has opted for the alternative part of the order and has deposited the total amount of refund of consideration along with interest and as such he has complied the order dated 6.9.2002 in C.C. No. 492 of 2001.

THIS application was opposed by Trilok contending that Revsionist can not opt for alternative part of the order on his own, and it is the choice of Ori. complainant to opt for either the first part of the order or the second alternative part. He further contended that only in the case when it becomes impossible to comply the first part of the order, then only second alternative part comes into picture. He contended that he has opted for the first part of the order and hence he has withdrawn only an amount of Rs. 2,90,000 which were payable to him by the Revisionist for delay in delivery of possession of the farm house and as such, the order of the Forum dated 6.9.2002 directing Revisionist to handover the possession of the farm house and execute its sale-deed in favour of respondent Trilok is yet to be complied by him. After hearing both the sides on this application, the order dated 29.8.2006 came to be passed by the Forum in E.A. No. 88 of 2005 wherein Revisionist was directed to give possession of the farm house and execute sale deed in favour of Trilok, which order is impugned by Revisionist Udaykumar in this Revision.

ON the above pleadings, the Forum below received the affidavit and documentary evidence from the parties and after evaluating the same, was pleased to pass the order impugned in this appeal. Heard Adv. Pradeep Agrawal for Revisionist and Adv. M.P. Lala for respondent. Also perused the record of the Revision and order impugned therein. Adv. Agrawal, on behalf of Revisionist Udaykumar contended that the respondent Trilok had himself prayed for alternative relief of refund of consideration amount in his original complaint and as such, he cannot now specifically claim the delivery possession and sale-deed of farm house. Revisionist further contended that as he has opted for the second option given by the Forum of refund of consideration and hence he cannot be compelled to comply the first part of the said order and as such, the order passed by Addl. D.F. Nagpur is a nullity in view of provision of Section 25. He further contended that said direction of the Addl. Forum is hit by provisions of Framentation and Reconsolidation Act, 1947 and also of Section 41(3)(i) of M.L.R. Code as it exceeds permissible limit of construction, and, therefore, the first part of the original order directing the Revisionist to execute the sale-deed and deliver possession of the farm house has become unexecutable.

PER contra, Mr. Lala on behalf of Trilok contended that in the complaint, the substantive relief claimed was of possession of the farm house and execution of its sale-deed in terms of agreement to sale and the relief of refund of consideration was claimed only in case when the first relief claimed could not be awarded. He further pointed out that Trilok had never accepted the second option of refund of consideration amount and hence, though the Revisionist deposited the amount of refund of consideration in the Forum, Trilok withdrew only the amount of interest as awarded by the Forum in the first part of the original order dated 6.9.2002 and is entitled to delivery of possession of the said farm house and execution of its sale-ded in his favour.

THE only point that arises for our determination in this revision is in whom the right to exercise the option vests, whether it is with the Revisionst/O.P./Udaykumar or with the respondent/complainant/Trilok. A glance at the original order dated 6.9.2002 passed by D.F. Nagpur in C.C. No. 492/01 shows that the option was given to the respondent Trilok either to go for the possession and sale-deed of the said farm house or alternatively to accept the refund of consideration. Now, this option has to be seen from the point of view of the Consumer because the complaint is decided under the provisions of Consumer Protection Act, 1986 which has a laudable object of protecting the interests of consumers and to curb the Unfair Trade Practice of the unscrupulous parties and as such the Forum below has rightly held that the option lies with complainant/consumer Trilok. As Trilok has opted for possession of farm house and execution of its sale-deed in his favour, Revisionist Udaykumar has no other go than to comply the same as directed in the first part of the order dated 6.9.2002 of D.F. , Nagpur in C.C. No. 492/2001 provided that there are no other legal impediments which may be seen by the concerned authorities at the office of Registrar of Registration. As far as present revision is concerned, as the original order dated 6.9.2002 passed by D.F. Nagpur in 492/2001 has attained finality and as Trilok right from the beginning has opted for delivery possession of the farm houses and its sale-deed in his favour, the Forum was right in holding that the option to chose compliance of either the first part or the second part of the order dated 6.9.2002 vests in him. From the tenure of his complaint, he has always claimed the possession and execution of sale-deed of the said farm house, and only in the case it becomes impossible due to some legal impediments, he has claimed the alternative relief of refund of consideration amount. Likewise, the contention of Trilok that he only withdrew the amount payable to him towards interest granted by the Forum against the delayed delivery of possession of said farm house, also appears to be in consonance with his main claim. Further, Appellant Udaykumar has not produced any cogent evidence on record to show that the execution of sale-deed in this case can not be executed due to any legal impediment or otherwise. This Commission, in the case of Pioneer Housing Society v. Waman Kagole decided on 18.6.2008 in A.No. 443 of 2007 has taken the same view which is based on the view taken by Mumbai Commission in A.No. 2641 of 2006 decided on 20.11.2006 wherein it is specifically mentioned that in case of exercise of option, the priority has to be given to the consumer who has paid the full consideration of the property to the other side. The question of refund of consideration is by way of alternative relief and if the complainant insists for the first option awarded in his favour, that has to be complied.

If this interpretation of duel option is not made, then it would amount to exploitation of consumer''s interest. So, in view of these facts, we think that this revision is devoid of any merit. Hence, it is dismissed. Parties to bear their own cost of this appeal. Copies be supplied to the parties. Ordered accordingly.