Saturday, January 28, 2017

If builder defaults then consumer court can help execute sale deed

Updated: Jan 23, 2017, 11.57 AM IST

By Jehangir B Gail, consumer activist 

Executing an order is sometimes more difficult than winning the case. Here is a case where the Supreme Court has come to the rescue of an aggrieved consumer. 

Case Study: Kamlesh Aggarwal had filed a complaint before the Ghaziabad District Forum against Navchetna Sahkari Awas Samiti. Her grievance was about the Society having cancelled her membership and having failed to allot and register a plot at Khoda Village for alleged default in payment. By its order of October 17, 2003, the forum allowed her complaint and directed the Society to allot the plot and register it in her name within three months. 

On failure to comply with this order, Kamlesh initiated execution proceedings. At this stage, a third party named Gulab Singh claimed that the same plot was allotted to him and was in his possession pursuant to a civil suit filed by him. The district forum concluded that its original order in Kamlesh's favour was void and refused to execute it. It asked Kamlesh to approach the civil court to decide where she or Gulab Singh were entitled to the plot. Kamlesh then appealed to the Uttar Pradesh State Commission, which held that the forum had no power to review and change its own order. The forum was directed to continue with the execution proceedings. Neither Kamlesh nor the Society challenged this order, but Gulab Singh questioned its correctness before the National Commission, which dismissed his revision. 

During execution, the forum asked the Society to either put Kamlesh in possession of the plot originally allotted, or allot an alternative plot, or pay its current market value. When the Society failed to comply with these direc tions, the forum ordered the Society's office bearers to three months imprisonment and a fine of Rs 3,000. This order of conviction was set aside by the state commission as the forum had failed to adopt the procedure for summary trial prescribed under Criminal Procedure Code, but surprisingly no directions were given to conduct a fresh trial following the prescribed procedure. So Kamlesh was unable to execute the order passed in her favour. Aggrieved, she went to the National Commission which refused to consider the case on a technicality that there was no provision under the Consumer Protection Act for a second appeal against execution proceedings. 



Kamlesh finally approached the Supreme Court, contending that the matter had reached a deadlock. The apex court observed that the state commission was wrong in leaving Kamlesh without any remedy by setting aside the conviction due to procedural lapses without ordering a re trial.Despite this, since there was no provision of a second appeal under section 27 of the Consumer Protection Act, the National Commission had no power to entertain Kamlesh's appeal and had rightly rejected it. Even the Supreme Court did not have any power to entertain a petition under Article 136 of the Indian Constitution. 

However, considering that Kamlesh had been deprived of the benefit of the order passed in her favour, the Supreme Court invoked its powers under Article 142 of the Indian Constitution. By its order of February 10, 2015 delivered by Justice V Gopala Gowda for the Bench along with Justice R Banumathi, 

the Supreme Court refused to go into the merits of the case, but remanded it back to the district forum directing it to conduct execution proceedings as prescribed under the Code of Criminal Procedure. 

The Supreme Court also observed that a consumer could additionally take recourse to the provisions of Order XXI, Rule 32 of the Civil Procedure Code to enforce the order of getting the sale deed registered. Under this rule when a seller does not sign the sale deed, an officer appointed by the court is empowered to execute the document in favour of the decree-holder. 

Conclusion: This judgement widens the scope of the benefits to a consumer who can now get his sale deed executed through an officer empowered by the consumer court. 

(The author has won the Govt.of India's National Youth Award for Consumer Protection.) 



http://economictimes.indiatimes.com/wealth/real-estate/if-builder-defaults-then-consumer-court-can-help-execute-sale-deed/articleshow/56728918.cms
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