Neelam P. Chawla vs Godavari V. Nagpal

CHALLENGE in these proceedings is to the order dated 28.11.2007 passed by the Maharashtra State Consumer'' Disputes Redressal Commission, Mumbai in M.A. No. 2049 of 2007 (Execution application) and M.A. No. 1203 of 2007 in complaint case No. 387 of 1998. The order was passed by the State Commission in execution proceedings relating to the enforcement of the order dated 15.3.2001 passed by the State Commission in complaint case No. 387 of 1998, by which order the State Commission had allowed the complaint of the complainant in the following manner: "In the circumstances, it is held that the complainants are entitled to the relief as claimed in the complaint. Hence, the following order - 1. Opposite parties are ordered and directed to pay the sum of Rs. 9,61,146/-to the complainant with interest @ 12% p.a. from 31.3.1992, till realization; 2. Payment to be made within 12 weeks from receipt of the order herein by the opposite parties; 3. O.Ps shall pay compensation towards mental agony of Rs. 30,000/- and 4. Ops shall pay Rs. 5000/- for Court proceedings. "

IT is not in dispute that the order of the State Commission dated 15.03.2001 attained finality. It appears that in the execution proceedings on a prayer being made by the petitioner-decree holder the State Commission issued warrants of arrest against Mrs. Neelam (petitioner). The warrants were executed and the above named person was arrested and produced before the State Commission on 28.11.2007. Interim order was. passed by the State Commission ordering the release of the petitioner on furnishing bail bond with sureties as also on payment/ deposit of Rs. 5,00,000/- in the Commission on or before 03.12.2007, which amount we are told was deposited by the petitioner in the State Commission and released to the Respondent-complainant. It is stated that after passing of the order dated 28.11.2007; the State Commission passed the order on 07.12.2007 directing the petitioner to deposit the further amount of Rs. 5,00,000/- within a period of four weeks which has not been deposited by the petitioner till date in view of the order passed by this Commission. We have perused the various orders passed by this Commission from time to time. On 25.03.2008, this Commission made the following order: "Vide order dated 28.02.2008 notice was ordered to be issued to Chawla Complex Premises Co-operative Society Ltd., respondent No.2 for today. Dasti notice was also ordered to be given to the petitioner for service on the Society. Registry has reported that the petitioner did not collect the Dasti notice for service on the Society. Notice issued to the Society by post on 14.03.2008 has not been received back served/unserved till date. Shri Paul says that pursuant to the said order, affidavit was to be filed within a week by respondent No. 1 but the copy of affidavit has been received by him only on 18.03.2008. He points out that though the Dasti notice was not collected but the petitioner did intimate the Society about the filing of this revision and today''s date and the Society has sent to the petitioner an affidavit sworn on 18.03.2008. No affidavit has been received from the Society either by this Commission or supplied to respondent No. 1. In para No. 8 of the said affidavit it is averred that in 2003; the Society has been, registered under section 100 of the MCS Act 1960 and to recover the dues against respondent No.1. It has auctioned in July, 2007 the office at 105 allotted to respondent No.1. Shri Paul states that the petitioner wants to file affidavit in rebuttal taking note of said para 8 after inspecting the record of the Joint Registrar of Co-operative Society, Mumbai and a week''s time may be allowed for this purpose which prayer is opposed by Shri Chopra. Having considered the said facts, we are inclined to allow one week time to file affidavit in rebuttal with advance copy to respondent No. 1 to the petitioner. Dasti Notice be given for service to the petitioner on the Society. List on 07.04.2008 for arguments. Interim stay is extended till then. "

THERE being no service of notice on the society, this Commission vide order dated 15.4.2008 gave the following directions and stayed the execution proceedings pending before the State Commission: "Out of the awarded amount of Rs. 9,61,146/- with interest, the respondent/complainant has recovered amount of Rs. 5,00,000/- in execution proceedings from the petitioner. Having heard parties learned counsel and also having considered the documents filed along with revision petition, we are of the view that this revision petition cannot be disposed at admission stage and has to be heard on merits. Admit. List on 12.08.2008 for final arguments. In the meantime, execution proceedings against the petitioner shall remain stayed. "

WE have heard Mr. Santosh Paul, Advocate, counsel for the petitioner and Mr. Anurag Chopra, counsel for the Respondent No.1 and have considered their submissions. Mr. Paul would assail the impugned order as well as the order passed by the State Commission on 07.12.2007 on the strength of a variety of objections and grounds. His main objection is that the order of the State Commission dated 15.03.2001 which is sought to be executed by the respondent in execution proceedings was a result of fraud perpetrated by the respondent No.1 in connivance with the respondent No.2-Society on the petitioner and the Court and therefore, the said order is a nullity in the eyes of Law and un-executable in law. The basis of the said submission is that the flat in question regarding which the compensation has been awarded continued to be in the name of the respondent No.1 and for her default to make certain payments to the society, the flat was auctioned by the society for a sum of Rs. 16,08,750/- and amount has been realized by the society and therefore the amount, if any, payable by the petitioner under the order dated 15.03.2001 should be paid by the society. He submits that the petitioner cannot be subjected to double jeopardy first by handing over the flat in question to the society under the society agreement and then to pay for the cost of the flat to the complainant-respondent No.1. On the other hand counsel for the Respondent No.1 submits that no such objection can be raised by the petitioner in execution proceedings and once the order passed by the State Commission has attained finality, the petitioner is under obligation to comply the same. Having given our consideration to the respective submissions, we are of the view that the objections raised and controversy which has surfaced is such which can only be settled by leading evidence and appreciation thereof. It would therefore, be appropriate to remit the parties to the jurisdiction of the State Commission sitting in execution proceedings to decide objections which have been raised in the present Forum in regard to the enforceability of the order dated 15.03.2001 passed by the State Commission in view of the changed circumstances.

WE accordingly dispose of the present petition with liberty to the petitioner to raise the objections as the petitioner think appropriate before the State Commission which shall be decided by the State Commission by hearing both sides as expeditiously as it may be practicable, not later than three months from the date of the receipt of the copy of the order. In the meantime, no coercive steps shall be taken against the petitioner for realization of the balance amount. Payment received by the respondent No.1 under the orders of the State Commission will subject to the outcome of the said decision of the State Commission.

PARTIES are directed to appear before the State Commission on 13.8.2012 on which date any application sought to be moved by the petitioner shall be moved and reply thereof shall be filed by the respondents within two weeks of the filing of the same. Revision Petition disposed of.