NITIN MEHTA & 2 ORS vs PRASHANT KUMAR VIJAY KUMAR JAIN

These two Appeals by the Builders, questioning the correctness of order dated 11.10.2013, passed by the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai, in Execution Applications No.EA/09/26 and EA/09/27 were filed on 21.10.2013. Initially, hearing in the Appeals was being deferred from time to time in order to explore the possibility of amicable settlement between the parties.

However, the talks of amicable settlement having failed, vide order dated 28.5.2014, the Appeals were admitted for hearing in due course. While admitting Appeals, both the Appellants were directed to deposit in this Commission a sum of Rs.50 lakh in respect of each of the flats, within 6 weeks from that date of the order. The Complainants were, however, permitted to withdraw the amount, which was stated to be deposited by them in the State Commission.

Since the requisite deposit in terms of order dated 28.5.2014 was not made, an application was filed by the Complainants seeking appropriate directions against the Appellants for non-compliance with the said order. Notice on the said application was issued to the Appellants requiring them to show cause as to why action under Section 25 of the Consumer Protection Act, 1986 be not taken against them. When the said applications came up for consideration on 10.10.2014, it was stated by learned counsel appearing for the Appellants that Special Leave Petitions, questioning the correctness of our order dated 28.5.2014 had been filed in the Supreme Court. In view of the statement, hearing in the applications was deferred till 21.10.2014. However, the said applications were withdrawn by the Complainants with liberty to file fresh applications for appropriate directions. Fresh applications were filed stating therein that SLPs filed by the Appellants had since been dismissed by the Hon''ble Supreme court. On their filing fresh applications, notice was issued to the Appellants.

On 21.2.2015, while granting time to the Appellants to file reply to the said applications, it was directed that subject to further orders in the said applications, an order of attachment shall be issued in respect of 2 floor, Nirmal Bungalow, Plot nd No.42, Jai Hind Chambers, JVPD Scheme, Juhu, Vile Parle (W), Mumbai. It was also clarified that there was no stay of Execution Proceedings pending before the State Commission. Thereafter, a direction was issued to the Collector to submit his report on the question of attachment of the said property.

It appears that in the meantime, applications were filed by Mrs.Jyotsana N. Mehta, W/o Nitin Mehta, one of the Appellants in these Appeals, objecting to the aforesaid attachment order. The said applications were taken up during the summer break and certain directions were issued. One of the directions issued to the applicant was to file an undertaking in this Commission, stating that she would maintain status quo with respect to the nature, title and possession of the property in question and shall not create any third party interest in the said property.

Today, when the Appeals are taken up for consideration, at the outset, Mr.Patwardhan, learned counsel appearing for the Appellants has moved applications, seeking leave to withdraw the Appeals. In the application, it is stated that though the applicants had merit in the present Appeals but since the Complainant is trying to take advantage of one of the interim orders and thereby trying to take way the shelter and residence of the appellants and their families, which is the only home for their residence, the Appellants do not want to pursue the matter further and want to withdraw the same.

The applications are resisted by learned counsel appearing for the Complainants mainly on the ground that having failed to comply with the directions issued by this Commission, which were upheld by the Hon''ble Supreme Court the Appellants have delayed the Execution proceedings, pending before the State Commission and therefore, if the Appellants were to be permitted to withdraw the Appeals, the Complainants should be adequately compensated for the expenditure incurred by them in contesting these Appeals.

Having regard to the afore-noted factual scenario, we find substance in the stand of learned counsel appearing for the Complainants. From some of the orders passed in these proceedings, it is evident that to some extent the Execution proceedings before the State Commission have been delayed because of the pendency of these Appeals.

Therefore, taking into consideration the facts and circumstances of the case, particularly the conduct of the Appellants in not complying with the interim order passed by this Commission, while allowing the applications and permitting the Appellants to withdraw the present Appeals, we direct them to pay to each of the Complainants'' a sum of Rs.50,000/- as costs for contesting these Appeals, within four weeks from today. Additionally, having failed to comply with our interim order, we direct that subject to further orders by the State Commission in Execution Proceedings, status quo in respect of the nature, title and possession of the afore-noted property shall be maintained till a final decision is rendered in the Execution applications.

The statutory amounts deposited by the Appellants at the time of filing of these Appeals shall also stand transferred to the Consumer Welfare Fund.

Since the main order, giving rise to the Execution Proceedings, was passed as far back as on 8.4.2008 and the Appeals against the said order had been dismissed in March 2012, we would request the learned State Commission to expedite the disposal of the Execution Petitions.

The Appeals stand disposed of in the above terms.