M/S. SAI NINAD ENTERPRISES & ANR. vs CHANDRAPRAKASH D. SINGH & ANR.

These two Execution Appeals, filed by a Real Estate Developer namely, Sai Ninad Enterprises, (for short "the judgment debtor"), and its one of the, Partners, are directed against the orders, both dated 09.08.2017 passed by State Consumer Disputes Redressal Commission, Maharashtra at Mumbai (fir short "the State Commission") in Execution Applications No. EA/16/72 and EA/16/73. By the impugned orders, while holding that the Appellants had deliberately failed to comply with the final orders dated 20.04.2016 passed in C.C. No. CC/13/210 and CC/13/211, the State Commission has convicted the Appellant Under Section 27 of the Consumer Protection Act, 1986 (for short "the Act") and sentenced Appellant No. 2-Amit Palshetkar @ Amit Patil, to undergo simple imprisonment for a maximum period of three years and also to pay fine of 10,000/- with the proviso that as and when the convict complies with the directions issued in the aforesaid final order, he shall be released forthwith, subject to payment of fine only and in the event of failure to pay the fine, he shall undergo imprisonment for three months. The relevant portion of the orders indicating the reasons weighing with the State Commission in arriving at the said conclusions, as follows:- "We are (sic) prima-facie satisfied that there is no honest intention on the part of the opponent/accused to comply with the final order firstly because he parted with possession of the said flat in favour of third party and secondly because no alternative proposal is made despite balance consideration is deposited long back. That being so, after having recorded statement of the accused on 21/03/2017 we are satisfied that despite awareness of the final order, there appears deliberate non-compliance of the final order as according to the accused himself the flat which is subject matter of the final order is sold to one Mr. Ashwin Patel does speaks against accused. He did not even pay compensation in the sum of Rs.25,000/- as also costs of litigation and blatantly stated that he cannot execute sale deed as the flat is sold to Mr. Ashwin Patel. We therefore believe that this accused has no willingness or readiness to comply with the final order and he is doing so deliberately and dishonestly."

(emphasis added)

Hence, the present appeals.

Mr. Patwardhan, learned Counsel appearing for the Appellants has vehemently submitted that since the Complainant/Decree-holder had failed to make the requisite deposits, a pre-condition for execution of the sale -deeds in respect of the flats, within the time granted to them, the State Commission has fell into error in convicting and sentencing the partner of the Appellant firm.

Having carefully perused the documents on record, including the final order passed by the State Commission, which has attained finality on account of dismissal of Appellants'' First Appeal by this Commission vide order dated 04.05.2017, we are of the opinion that both the appeal are bereft of any merit.

Although, it is true that there were some delay on the part of the Complainants in making the requisite deposit as directed in the final substantive order passed by the State Commission, but regard being had to the fact that in the Execution proceeding itself it had been stated on behalf of the Appellants, on 21.03.2017, that they were not in a position to deliver the possession of the flats in question and execute the sale-deeds in respect thereof, as the flats had already been transferred in favour of third parties, we are of the view that the delay in deposit of the amounts by the Complainants in terms of the aforesaid order, was immaterial. Admittedly, the Appellants were not in a position to deliver possession of the allotted flats to the complainants, even if the said amounts were deposited within the stipulated time. But, more importantly, as observed by the State Commission, the Appellants did not make even an offer of the alternative flats, as directed in the substantive orders.

In so far as the decision of the Hon''ble Bombay High Court in M/s. Aditya Developers Vs. Manish Ranganath Thorat , 2017 (1) CPR 34 (Bom.), pressed into service by the learned Counsel in support of submission that once the Decree-holder fails to perform its part under the decree, the decree becomes unexcutable, in our view, the decision is clearly distinguishable on facts, in as much as in the present case as noted above, without even slightest of indications from the Appellants that they were willing to offer alternative flats, the said deposit was inconsequential.

In light of the afore-noted factual scenario, we do not find any illegality in the orders passed by the State Commission warranting our interference. Consequently, both the appeals are dismissed in limini.

The prayer made by the learned Counsel for suspension of the sentence, is rejected.