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M/s. Sai Priya Estates Rep. By Its Managing Partner, Mr. N. Rama Mohan Reddy v/s VVL Sujatha

    Revision Petition No. 3715 of 2017

    Decided On, 25 January 2021

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE R.K. AGRAWAL
    By, PRESIDENT & THE HONOURABLE DR. S.M. KANTIKAR
    By, MEMBER

    For the Petitioner: J. Krishna Dev, Advocate. For the Respondent: In Person.



Judgment Text

The present Revision Petition u/s 21 (b) of the Consumer Protection Act, 1986 (for short, “the Act”) has been filed by the Opposite Party, M/s. Sai Priya Estate, against the order, dated 07.11.2017 passed by the State Consumer Disputes Redressal Commission, Telangana (for short, “the State Commission”) whereby the First Appeal No. 278 of 2017 preferred by them u/s 27A of the Act has been dismissed.

2. The District Consumer Disputes Redressal Forum III, Hyderabad (for short, “the District Forum”) has allowed the Consumer Complaint Case No. 1026 of 2007 filed by the Respondent/Complainant with the following directions:-

“1. The Complainant is directed to deposit a sum of Rs.6,00,000/- (Rupees six Lakh only) from out of Caution Deposit amount of Rs.12,00,000/- to the credit of this C.C. on or before 28.12.2009 and further directed the Complainant to pay the remaining balance of the Caution Deposit amount of Rs.6,00,000/- (Rupees six lakh only) at the time of handing over the flats i.e. 45% share by the Opposite Party to her.

2. The Opposite Party upon deposit of Rs.6,00,000/- representing Caution Deposit amount by the Complainant to the credit of this C.C. is directed to construct the pending works and complete the construction of the building complex within 4 months commencing from 29.12.2009 and after completion of the building, both of them have to execute the Memorandum of Understanding (MOU) on selection of flats between the Complainant and the Opposite party in the ration of 45% and 55% respectively as per Clause 3 of the Development Agreement dated 01.06.2003.

3. The Opposite Party is further directed to deposit the rent @ Rs.7,000/- (Rupees seven thousand only) per month to the credit of this C.C. from March, 2006 till December, 2009 and continue to deposit the rent at the rate every month till the construction of the building is completed.

4. The Opposite Party is not entitled to recover the amount of Rs.50,00,000/- (Rupees five lakh only) which is said to have been lent to the Complainant, as it is outside the purview of the Ex.A1 Development Agreement dated 01.06.2003. The Opposite Party is so advised is entitled to seek his redressal through proper Forum for recovery of the amount from the Complainant.

5. In so far as, the amount of Rs.10,000/- (Rupees ten thousand only) to be payable by the Opposite Party during the period of construction of the building is concerned, no finding can be given as the Complainant did not ask that relief. However, the Complainant admitted that the Opposite Party paid Rs.10,000/- (Rupees ten thousand only) till March, 2006 can be amicably settled at the time of execution of Memorandum of Understanding (MOU) after completion of the entire construction of the building.”’

In view of the reasons stated on the point No. 1 to 5 and also taking into the total facts and circumstances of case, there are some latches on the part of the Complainant as well as Opposite Party in completion of the construction of the building and further in order to maintain harmonious relationship between the parties in future so as to reach the finality of the lis inter-se, we are of the view that there is no need to award any compensation to the Complainant. However, the Complainant is entitled to a sum of Rs.3,000/- (Rupees three thousand only) towards costs and the rest of the claims claimed by the Complainant is dismissed. The above order is to be complied with as per direction given supra.””

3. The Petitioner/Opposite Party as well as the Respondent/Complainant challenged the Order dated 09.12.2009 passed by the District Forum in C.C. No.1026/2007, before the State Commission. First Appeal No. 208 of 2010 was filed by the Opposite Party and the First Appeal No. 316 of 2010 was filed by the Complainant. State Commission after a detailed discussion on record, disposed of both the appeals by giving following directions: -

“(1) That the tenant by name Sri Brij Gopal be made as a proforma O.P. No.2 in C.C. 1026/2007 by amending the cause title. So also in the appeals which are to be carried out by the parties.

(2) That the OP/Builder shall demolish the old structure in South-East corner of schedule property and proceed with the construction by completion of 10% work and deliver 45% share of flats to the complainant within three months of the demolition of the old structure.

(3) That the OP/Builder is permitted to take the help of Police in case he was resisted either by Brij Gopal or his representative from demolishing the old structure. He may apply to the Registry for issuing a requisition to the concerned police for demolition of the old structure and complete the remaining work as directed.

(4) That the complainant is entitled for rent @ Rs.7,000/- for the period from 21.7.2005 to 19.10.2006 only. Rent due and payable to be worked out from the amount already withdrawn by the complainant.

(5) That the complainant shall return half of refundable deposit of Rs.6 Lakhs on delivery of 45% share of her flats.”

4. Aggrieved by the said order of the State Commission, both the parties filed separate Revision Petitions before this Commission which were dismissed vide Order dated 20.04.2020 and as such the Order of the State Commission attained finality.

5. The proceedings u/s 27 of the Act were initiated against the Petitioner/Opposite Party and the Petitioner was sentenced to two years imprisonment and fine of Rs.10,000/- in default to suffer 3 months imprisonment. An Appeal was preferred u/s 27A of the Act which was dismissed by the State Commission by the impugned Order dated 07.11.2017.

6. Without going into the merits of the case, we may mention that the Hon’ble Supreme Court in the case of Karnataka Housing Board Vs. K.A. Nagamani – (2019) 6 SCC 424 has held that no Revision Petition against the order passed in Appeal filed U/s 27A of the Act, is maintainable before this Commission inasmuch as the original complaint is not pending. Relevant paragraphs of the said judgment are reproduced below:-

“6.2. The exercise of revisional jurisdiction Under Section 21(b) by the National Commission is limited to a consumer dispute which has been filed before the State Commission. The jurisdiction Under Section 21(b) of the 1986 Act can be exercised by the National Commission only in case of a "consumer dispute" filed before the State Commission. The National Commission in exercise of its supervisory jurisdiction Under Section 21(b) is concerned about the correctness or otherwise of the orders passed by the State Commission in a "consumer dispute".”

7.1 The revisional jurisdiction conferred on the National Commission u/s 21(b) is with respect to a pending or disposed of “consumer dispute” before the State Commission.

“7.2. Section 25 of the 1986 Act, provides for the enforcement of Orders passed by the District Forum, State Commission or National Commission.

Section 25(3) states:

25. Enforcement of orders of the District Forum, the State Commission or the National Commission.

(3) Where any amount is due from any person under an order made by a District Forum, State Commission or the National Commission, as the case may be, the person entitled to the amount may make an application to the District Forum, the State Commission or the National Commission, as the case may be, and such District Forum or the State Commission or the National Commission may issue a certificate for the said amount to the Collector of the district (by whatever name called) and the Collector shall proceed to recover the amount in the same manner as arrears of land revenue.

An Order passed for enforcement, would not be an order in the 'consumer dispute' since it stands finally decided by the appellate forum, which has conclusively determined the rights and obligations of the parties.

7.3. The nature of execution proceedings is materially different from the nature of proceedings for adjudication of a consumer complaint. Execution proceedings are independent proceedings. Orders passed for enforcement of the final order in the Consumer dispute, cannot be construed to be orders passed in the 'Consumer Dispute'.”

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“7.7. We affirm the view taken by the Full Bench of the Andhra Pradesh High Court and Patna High Court. Execution proceedings even though they are proceedings in a suit, cannot be considered to be a continuation of the original suit. Execution proceedings are separate and independent proceedings for execution of the decree. The merits of the claim or dispute, cannot be considered during execution proceedings. They are independent proceedings initiated by the decree holder to enforce the decree passed in the substantive dispute.

7.8. There is no remedy provided Under Section 21 to file a Revision Petition against an Order passed in appeal by the State Commission in execution proceedings.

Section 21(b) does not provide for filing of a Revision Petition before the National Commission against an Order passed by the State Commission in execution proceedings.

7.9. In the present case, the National Commission committed a jurisdictional error by entertaining the Revision Petition Under Section 21(b) filed by the Appellant-Board against an appeal filed before the State Commission, in Execution proceedings.”

(Emphasis supplied)

7. The Hon’ble Supreme Court has referred to and followed its earlier judgement in the case of Karnataka Housing Board (Supra) in Civil Appeal Nos. 1213-1215 of 2017 – M/s. Ambience Infrastructure Private Limited V

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s. Ambience Island Apartment Owners and Ors. – decided on 28.08.2020. For ready reference, the paragraph 8 of the aforesaid judgment is reproduced below:- In a recent judgment in Karnataka Housing Board Vs. K.A. Nagamani – (2019) 6 SCC 424, this Court made a distinction between execution proceedings and original proceedings and held that the former are separate and independent. In our view, having regard to Section 23 of the Consumer Protection Act, 1986, an appeal will not lie to this Court against an order which has been passed in the course of execution proceedings. The appeals are hence dismissed as not being maintainable. 8. Respectfully following the law laid down in aforesaid judgments of the Hon’ble Supreme Court, as the National Commission has no jurisdiction to entertain any Revision u/s 21 (b) of the Act against an order passed by the State Commission u/s 27A of the Act in execution proceedings, we dismiss the present Revision Petition as not maintainable, leaving it open to the Petitioner to seek appropriate remedy in accordance with the law.
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