Procedure to followed by consumer forum for execution of decree passed by it

In fact when the proceeding under Section 27 of the Act is filed the District Forum has to find out whether the opponent/accused in the said case has obeyed the order in question and if it is found that the orders are not obeyed the District Forum has to take cognizance under Section 190 of Cr.P.C. and issue summon to the opponent/accused. After the opponent/accused appeared in the procedure he shall obtain bail and thereafter on the same day or on the next date he shall explain the gist of the accusation against him and his plea shall be
recorded. If he pleads guilty then he can proceed for imposition of the punishment as provided under Section 27(1) of the Act but if he denies the guilt then further trial has to be taken by the District Forum namely to record statement of the complainant offer complainant for cross-examination of the other side if there are other witnesses of the complainant they can offer them for cross-examination of the other side and thereafter examine the opponent/accused under Section 313 of Cr.P.C. If in a statement under Section 313 of Cr.P.C. he makes a statement that he wants to give his witness on oath or some defence witness then statement on oath and/or defence statement is to be recorded and thereafter after hearing the arguments of the Advocates judgement/order in the case shall be passed. This is the procedure which is provided. As Executing Court District Forum is not expected to grant time for getting Occupation Certificate or Completion Certificate etc. Such is not the procedure contemplated under Section 27 of the Act.

VIJAY SHANKAR HANDE V/S SUDHIR DATTATRAY KAWADE, decided on Tuesday, December 18, 2012. [ In the Maharashtra State Consumer Disputes Redressal Commission, Mumbai, First Appeal No. 874 of 2012 a/w. Miscellaneous Application No. 306 of 2012 (Arisen out of Orders Dated 30/03/2012 & 01/06/2012 in Case No. EA/06/25 of District Pune). ] 18/12/2012

Judge(s) : S.B. MHASE, PRESIDENT & S.R. KHANZODE, JUDICIAL MEMBER

 S.B. Mhase President1. Heard Mr.R.S. Bhalerao Advocate for the applicant/appellant and non-applicant/respondent in person.2. This appeal and Misc. Application arise under the following factual matrix :-Consumer complaint No.428/1994 was filed by the respondent/org. complainant. In the said complaint appellant herein was/is opponent. Said complaint was decided by District Forum Pune by an order dated 06/08/2001. District Forum Pune has passed the following order:-ORDERThe complaint is partly allowed.The Opponent is hereby directed to hand over the possession of the office premises above the parking admeasuring 525 sq.ft. built-up area     in the construction at CTS No.284/2 situated at Somwar Peth Pune as shown in Schedules A&B annexed to the agreement dated 26/Nov/1990 to the Complainant subject to making payment of an amount of `51 124/- along with interest thereon @ 12% p.a. from 01/Oct/1996 till its payment by the Complainant to the Opponent within a period of one month from the date of this order.On receiving the payments as ordered above from the Complainant within the stipulated period the Opponent is directed to hand over the possession of the said office premises as stated above to the Complainant within a period of 15 days from the date of receipt of the amounts as ordered above from the Complainant. It is made clear that obtaining the possession of the office premises by the Complainant from the Opponent as ordered above is subjected to a condition as to handing over the possession of one room by the Complainant to the Opponent as ordered herein below. In case there is a failure on the part of the Complainant to make payments as ordered above within the stipulated period this order would stand vacatedOn obtaining the possession of the office premises as ordered above from the Opponent the Complainant is directed to hand over the possession of one room admeasuring 10′ x 11′ = 110 sq.ft. on the second floor in building situated on the southern side of the property bearing No.284/2 Somwar Peth Pune given in his possession by the Opponent as a temporary alternate accommodation in pursuance of the agreement dated 26/11/1990 within a period of 15 days from the date of obtaining the possession of office premises by him as ordered above.In the peculiar circumstances of the case no order as to costs.”3.  It appears that the complainant has paid amount of `51 125/- along with interest @12% p.a. from 01/10/1996 to the opponent. After receipt of said amount opponent was under obligation to hand over the possession of the office premises in question to the complainant. However possession was not given and therefore Execution Application No.25/2006 was filed by the complainant. In the said execution application it appears that the complainant has claimed Occupation Certificate and Completion Certificate along with possession of the office premises. District Forum after hearing both the parties passed the order below Exhibit-1 namely Execution Application No.25/2006 simply on the ground that possession has been given to the decree holder by the judgement debtor. Therefore complainant preferred a Revision Petition No.87/2007 before the State Commission and said Revision Petition was decided on 17/09/2008. The State Commission found that possession means a legal possession delivered after getting Occupancy Certificate and Completion Certificate from the appropriate local authority and therefore allowed the Revision petition and pass the following order :-“1. Revision Petition is allowed. The order dismissing the Execution Application No.25/2006 is hereby quashed and set aside.2. Execution proceeding is restored back to the file of District Consumer Forum Pune.3. District Consumer Forum Pune is directed to continue the execution till the deficiency and defects pointed out by the complainant/decree holder are fully complied with by the judgement debtor.4. It is also made clear that the District Consumer Forum should ensure that the Occupation Certificate and Completion Certificate are given by the builder to the flat purchaser and till then the execution proceeding be continued.5. Parties are left to bear their own costs.6. Parties are directed to appear in the Forum below on 15/10/2008.7. Copies of the order be furnished to the parties.4.   In view of the order passed by the State Commission in the Revision Petition the original Execution Application No.25/2006 stands restored back on the file of the District Forum Pune and thereafter proceeding is continued. During pendency of the said execution proceeding from the Order-sheet dated 30/03/2012 it appears that as per the order passed by the State Commission on 17/09/2008 referred to above the opponent has produced Occupancy Certificate dated 09/12/2011. However the Completion Certificate was not produced and therefore direction was given that before the next date Completion Certificate shall be produced and till said compliance is made per day `100/- were charged and the Execution Application was adjourned to 01/06/2012. On 01/06/2012 it appears that out of amount of `6 300/- calculated on the basis of order dated 30/03/2012 referred to above `3 000/- were paid by the opponent and undertakes to pay rest of the amount on the next date. Opponent produced Tax Receipt paid to the Corporation in respect of flat No.6. District Forum observed that penal amount shall continue and the case was adjourned to 27/07/2012. These two orders namely order dated 30/03/2012 and 01/06/2012 have been challenged by the opponent by filing this appeal/revision before the State Commission. It further appears that there is delay of 15 months in filing this appeal/revision and therefore Misc. Application No.306/2012 has also been filed.5.   We heard both the parties.6.   Learned Counsel appearing for the appellant submitted that the orders which were passed by the District Forum imposing penalty of per day `100/- is per se illegal. Such order according to the Learned Counsel for the appellant could not be passed because there is no such order passed in the main complaint and therefore executing court under Section 27 cannot pass such order. It is further submitted by him that Occupancy Certificate has already been given and it is the Completion Certificate which is to be given and he has making efforts to get Completion Certificate from the Corporation and he submitted that process of getting Completion Certificate is being followed and whenever Completion Certificate is available it will be given to the complainant. He has submitted that delay in the present matter may kindly be condoned because according to him since the orders which were passed are per se illegal required to be corrected. He further submitted that the procedure as provided under Sub-Section (3) of Section 27 of Consumer Protection Act 1986 (‘the Act’ for brevity) is required to be followed while proceeding with Execution Application under Section 27 of the Act but the District Forum has miserably failed to follow said procedure. Therefore he submitted that in the interest of justice looking to the facts that the orders which are under challenge are absolutely illegal delay may kindly be condoned.7. The complainant is himself present before us. Complainant admits that he has received possession. He also said that Occupation Certificate has been given to him but it is his contention that Occupation Certificate is a fraudulent one. According to him the Corporation should not have issued Occupation Certificate unless tax on the property is paid by the opponent. However tax is due and therefore Occupation Certificate has been obtained by joining hands with certain officers of the Corporation and thus he submitted that it cannot be said to be a valid Occupation Certificate in law. Secondly he contended that Completion Certificate has not been given and further he contended that Conveyance has not been executed Society has not been formed and thus he opposed the appeal/revision.8. The proceeding before the District Forum has been filed under Section 27 of the Act. Apart from that it is crystal clear that the orders which are tried to be executed cannot be executed under Section 25 of the Act because Section 25(1) & (2) applies in respect of Interim Orders and sub-Section (3) of Section 25 is in respect of orders wherein the amount is to be recovered. In the present complaint if we look to the orders the order is in respect of delivery of possession of the office premises and Occupation Certificate & Completion Certificate is to be given to the complainant. Therefore these orders cannot be executed under Section 25 of the Act but they have to be executed under Section 27 of the Act only and that is the only remedy available to the complainant for execution of such orders under the Act.9.  We have made above observations because the application filed by the complainant does not speak under what provision the jurisdiction of the District Forum has been invoked by him. Therefore before we consider merit of the orders it is necessary to find out which of the jurisdiction of the District Forum has been invoked. In the above referred circumstances complaint has been filed for execution is under Section 27 of the Act.10.  It has been noted that by the amendments which are effected in the year 2003 Section 27 which was erstwhile standing in the Statute Book has undergone material change and same has been discussed by the State Commission in the case of Amir Ali Tharani V/s. Rajesh Sukhtankar & Anr. II(2011) CPJ 23. Therefore at least after the reported decision of the Tharani’s case District Forum Pune should have followed the procedure as laid down in the Section 27(3) of the Act. That contemplates the procedure to be followed under Chapter XX & XXI of Code of Criminal Procedure (‘Cr.P.C.’ in short) read with Section (4) & (5) of the Cr.P.C. This judgement was circulated to the Presidents and Members of the District Forums in the State of Maharashtra. Suitable administrative instructions were also given from time to time. Thus efforts were taken by the State Commission for the purpose that execution application arising from Section 27 of the Act shall be properly dealt with and disposed of by the District Forum so that intention of the Parliament for speedy disposal of the execution is satisfied. Unfortunately when we look to the file of the execution application produced before us the District Forum Pune has absolutely ignored the procedure as provided under Chapter XX & XXI of Cr.P.C. The ratio which has been brought to the notice of the District Forum and published in most of the reportable journals by the State Commission has been also ignored by the President and Members of the District Forum Pune. In fact when the proceeding under Section 27 of the Act is filed the District Forum has to find out whether the opponent/accused in the said case has obeyed the order in question and if it is found that the orders are not obeyed the District Forum has to take cognizance under Section 190 of Cr.P.C. and issue summon to the opponent/accused. After the opponent/accused appeared in the procedure he shall obtain bail and thereafter on the same day or on the next date he shall explain the gist of the accusation against him and his plea shall be recorded. If he pleads guilty then he can proceed for imposition of the punishment as provided under Section 27(1) of the Act but if he denies the guilt then further trial has to be taken by the District Forum namely to record statement of the complainant offer complainant for cross-examination of the other side if there are other witnesses of the complainant they can offer them for cross-examination of the other side and thereafter examine the opponent/accused under Section 313 of Cr.P.C. If in a statement under Section 313 of Cr.P.C. he makes a statement that he wants to give his witness on oath or some defence witness then statement on oath and/or defence statement is to be recorded and thereafter after hearing the arguments of the Advocates judgement/order in the case shall be passed. This is the procedure which is provided. As Executing Court District Forum is not expected to grant time for getting Occupation Certificate or Completion Certificate etc. Such is not the procedure contemplated under Section 27 of the Act. This we have already explained in the Tharani’s case. Since we find that the President and Member have ignored that we have repeated said procedure in this order. It is very unfortunate to express that in number of cases the President and Members of the District Forum Pune have not bothered to look into the procedure which has been explained by the State Commission in the Tharani’s case and they are following the procedures which are suitable to them ignoring the statutory provisions.11.  Thus viewed from this angle if we look to the impugned orders imposing of `100/- per day by way of penalty at an interim stage without following the procedure under Chapter XX & XXI of Cr.P.C. are not sustainable in law. Only because `3 000/- have been paid by the opponent that does not mean that opponent has acquiesced the order and even that does not preclude the opponent from taking exception to such orders since these are absolutely illegal orders having penal consequences in criminal matters. Therefore orders which are challenged are not sustainable in law.12.  So far as grievance of the complainant is concerned that Occupation Certificate has been obtained without making payment of tax is concerned we do not find substance in the contention because Tax Receipt has already produced on record which shows that tax in respect of flat No.6 has been paid and the Occupation Certificate is a partial Occupation Certificate in respect of first floor of the said building.13.  So far as Completion Certificate is concerned the issue as to whether the opponent is following procedure for obtaining Completion Certificate or not is irrelevant at this stage. It is a matter for trial under Chapter XX & XXI of Cr.P.C. and it is for the District Forum to find out whether offence under Section 27(1) of the Act has taken place or not. The fact at this stage remains that Completion Certificate is not available. However unless trial is completed conviction on that ground cannot be inflicted by the District Forum. However penalty of `100/- per day has been imposed till Completion Certificate is obtained. This cannot be a procedure under Section 27 of the Act.14.  Second contention of the complainant is that Conveyance is not executed. However there is no order passed by the District Forum in the consumer complaint and therefore such relief cannot be considered in the Execution Application. Apart from that assuming that Conveyance has not been executed however an individual is not entitled for conveyance. Conveyance has to be executed in favour of the Society of the flat purchasers and if there are no eleven members available to form Society then there shall be Condominium of the flat purchasers. Since that was not subject matter of the consumer complaint that grievance is not sustainable in the present appeal and in the Execution Application.15.  Another grievance of the complainant is that Society is yet to be formed. As in the case of Conveyance similarly grievance in respect of formation of Society and/or a Condominium is not sustainable because consumer complaint was not for that purpose and there was no order to that effect which could be executed under Section 27 of the Act. For his last grievance that water supply is not made available the grievance is unsustainable since for that purpose there was no consumer complaint.16.  It appears that the complainant is under impression that once he project himself as a consumer any grievance can be made under disguise of a consumer complaint or at any stage of the complaint such grievance could be newly introduced or even could be raised for the first time in the Execution. These are the wrong notions of the complainant. What we find that the contentions which have been raised by the complainant are without any substance considering the facts and circumstances of the case. But the facts still remain is that the Execution Application must proceed in accordance with the law as per the procedure provided in Section 27(3) of the Act (as explained in the Tharani’s case supra).17.  Taking into consideration all these aspects in order to remove the injustice which is being caused to the parties and to regularize the proceeding properly and thus to manage a risk of failure of justice we allow the delay condonation application and also dealt with the appeal on merit. Hence we pass the following order:-ORDERMisc. Application No.306/2012 is allowed and delay is condoned.1. Appeal No.874/2012 is allowed and impugned orders dated 30/03/2012 and 01/06/2012 are hereby quashed.2. Execution Application shall proceed in accordance with the law as per the procedure provided in Section 27(3) of the Act as explained in the Thaana’s case.3. However under the facts and circumstances of the case no order as to costs.4. Record & Proceedings of District Forum be sent back to the District Forum Pune.5. Copies of the order are furnished to the parties.