State Consumer Disputes Redressal CommissionM/S. Swapnil Developers & Builders vs Shri Parmanand S/O Dadoobir Budholia, on 7 March, 2013STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
  
 







 



 
   
   
   


   
     
     
     

STATE CONSUMER
    DISPUTES REDRESSAL COMMISSION,  MAHARASHTRA
    
   
    
     
     

CIRCUIT BENCH
    AT   NAGPUR
    
   
    
     
     

5 TH FLOOR,
    ADMINISTRATIVE BUILDING NO. 1
    
   
    
     
     

CIVIL LINES,
    NAGPUR-440 001
    
   
  
  
   

 
  
 
  
   
   

 
  
 
  
   
   
     
     
     
       
       
       

Revision
      Petition No. RP/09/75
      
     
      
       
       

(Arisen out
      of Order 28/08/2008 in Misc
      Application No.20/2008 of District
      Forum, Nagpur)
      
     
    
     

 
    
   
    
     
     

 
    
   
    
     
     

M/s. Swapnil Developers & Builders,
     

Through
     

A. Smt. Kalyani
    W/o Vilas Asarkar,
     

B. Shri Vilas S/o
    Ganesh Asarkar,
     

Both R/o Sudam Niwas, Sudam
     

Road, Itwari, Nagpur.
    ....... Revision Petitioner(s)
     

  
     


    Versus 
     

  
     

1. Shri Parmanand
    S/o Dadoobir Budholia,
     

R/o. R-463, Premnagar, Madan
     

Mahal, Jabalpur (M.P.).
    
     

Through Attorney,
     

Shri Brajesh Kumar S/o LaljiprasadDixit,
     

R/o. Plot No.
    105, Suyognagar,Nagpur.
     

  
     

2. Shri Jayant
    S/o Keshav Ringay,
     

R/o. C/o. Shivnery "Apartments,
     

4th Floor, Opposite Arun Automobiles,
     

Near Khamla Square, Ring Road,
     

Khamla, Nagpur.
     

  
     

3. Smt. Vijaya
    W/o. Prabhakar Ringay
     

  
     

4. Shri
    Pryadarshan S/o Prabhakar Ringay,
     

  
     

5. Shri Anil s/o
    Keshav Ringay
     

  
     

6. Shri Girish
    S/o Keshav Ringay
     

  
     

7. Smt. Leelabai
    Wd/o. Dattatraya Ringay
     

Respondents No.3 to 7 are the resident 
     

Of plot No.10, C/o Swapnil Apartments,
     

Abhyankar Road, Dhantoli, Nagpur-440 012.
    ....... Respondent(s)
     

  
     

  
     
       
       
       

Revision Petition No. RP/09/76
      
     
      
       
       

(Arisen out
      of Order 28/08/2008 in Misc
      Application No.21/2008 of District
      Forum, Nagpur)
      
     
    
     

  
     

M/s. Swapnil Developers & Builders,
     

Through
     

A. Smt. Kalyani
    W/o Vilas Asarkar,
     

B. Shri Vilas S/o
    Ganesh Asarkar,
     

Both R/o Sudam Niwas, Sudam
     

Road, Itwari, Nagpur.
    ....... Revision Petitioner(s)
     

  
     


    Versus 
     

  
     

Shri Matadin S/o Omkarprasad Sharma,
     

R/o. Quarter No. C/19, Katara, Bhopal (M.P.)
     

Through Attorney,
     

Shri Brajesh Kumar S/o LaljiprasadDixit,
     

R/o. Plot No.
    105, Suyognagar,Nagpur.
     

  
     

2. Shri Jayant
    S/o Keshav Ringay,
     

R/o. C/o. Shivnery "Apartments,
     

4th Floor, Opposite Arun Automobiles,
     

Near Khamla Square, Ring Road,
     

Khamla, Nagpur.
     

  
     

3. Smt. Vijaya
    W/o. Prabhakar Ringay
     

  
     

4. Shri Pryadarshan
    S/o Prabhakar Ringay,
     

  
     

5. Shri Anil s/o
    Keshav Ringay
     

  
     

6. Shri Girish
    S/o Keshav Ringay
     

  
     

7. Smt. Leelabai
    Wd/o. Dattatraya Ringay
     

Respondents No.3 to 7 are the resident 
     

Of plot No.10, C/o Swapnil Apartments,
     

Abhyankar Road, Dhantoli, Nagpur-440 012.
    ....... Respondent(s)
     

  
    
   
    
     
     

 
    
   
    
     
     
       
       
       

 BEFORE:
      
       
       

 
      
     
      
       
       

 
      
       
       

Hon'ble Mr.S.M. Shembole PRESIDING MEMBER
      
     
      
       
       

 
      
       
       

HON'BLE SMT.JAYSHREE YENGAL MEMBER
      
     
      
       
       

 
      
       
       

HON'BLE MR.N. ARUMUGAM MEMBER
      
     
    
     

 
    
   
    
     
     

 
    
   
    
     
     
       
       
       

 PRESENT:
      
       
       
         
         
         
           
           
           

In person
          
         
        
         

 
        
         
         

......for the Appellant 
        
       
      
       

 
      
     
      
       
       

 
      
       
       
         
         
         
           
           
           

Adv. Mr. Vora for the respondent No.1
           

None present for the respondent No.2 to 7
          
         
        
         

 
        
         
         

......for the Respondent 
        
       
      
       

 
      
     
    
     

 
    
   
    
     
     
       
       
       

 ORDER(Delivered
      on 07/03/2013) 
      
     
      
       
       


       

 PER SHRI S.M.SHEMBOLE, HON'BLE
      PRESIDING MEMBER.Both these
      revision petitions challenge the separate orders dated 28/08/2008 passed
      by the District Consumer Forum, Nagpur in Misc Application No. 20/2008
      and 21/2008 dismissing both the applications.As both these orders
      pertains to the same issue and between the same parties, passed in 2
      separate Misc Application, we have decided to dispose of both these
      revision petitions by this common judgment.(For the sake of
      brevity revision petitioners are hereinafter called as "the
      Opponents" and Respondents as "the Complainants".)  
       

  
       

        Brief facts giving raise
      to these revision petitions are that,1.      Complainants had filed 2 separate
      consumer complaints against the opponent No.1- M/s. Swapnil Developers
      & Builders. Those consumer complaints were bearing No. 269/2000 &
      270/2000. Both the complaints were allowed by District Consumer Forum,
      Nagpur vide common judgment and order dated 08/07/2003 against the
      opponents No.1 to 6 directing the opponents to execute the sale deed of
      the flat in favour of the complainants. It was directed that the
      complainants shall bear the expenses of the registration and execution of
      the sale deed to the extent at the rates prevailing in the year 1990 and
      the difference amount due to enhancement/change of rates which is
      required to be borne in the year of execution of sale deed, is to be born
      by the opponents. Further, opponents were directed to pay to the
      complainants compensation at Rs.5,000/- each.2. Feeling aggrieved by
      that judgment and order the
      opponent No.1- M/s. Swapnil Developers & Builders had preferred the
      appeal to the State Commission bearing No. A/06/59 which came to be
      dismissed vide judgment and order dated 14/11/2006. Prior to filing the
      appeal the complainants had filed separate execution proceedings bearing
      No. MA/90/2003 & MA/91/2003 and in the same execution proceedings, as
      the opponents failed to execute the sale deed by depositing the amount as
      directed. Those Misc Applications were decided vide order dated
      21/05/2005 and opponents No.2 to 6 were discharged on the ground that
      they have executed deed of power of attorney in favour of opponent No.1
      and by appointing Court Commissioner of Adv. A. Luley, he was directed to
      execute the sale deed in favour of
      the complainants, etc. However, as
      Adv. A. Luley shown his inability to execute the sale deed, Adv.
      Mr. Amit Prasad was appointed as Court Commissioner and vide order dated
      31/12/2005 in MA/05/121, he has executed the sale deed in favour of both
      the complainants on 01/06/2007. However, according to the opponent No.1-
      Swapnil Developers & Builders, the Court Commissioner Mr. Amit Prasad
      has executed the sale deed of the adjacent flat in favour of Mr.
      Parmanand instead of flat which was agreed to be sold to Mr. Parmanand
      Budholia.3. Thereafter,
      complainants filed Misc Application bearing No.20/2008 and 21/2008 for recovery
      of amount from the opponent No.1- Swapnil Developers & Builders as
      the opponents failed to pay an amount of compensation and also the amount
      of deed of stamp duty and registration expenses and Commissioner Fees.4. Opponent No.1- Swapnil
      Developers & Builders on receipt of the notice of that application,
      moved an application dated 13/03/2008 raising objection that the original
      opponents No.2 to 6 are not made party and they be joined as party to
      execution proceeding MA/08/20 and
      MA/08/21. By same application the opponent No.1 submitted to cancel the
      sale deeds executed by the Commissioner contending inter alia that the
      sale deeds are illegal and null and void as the opponent No.2 to 6 were
      discharged, etc.5.
      On hearing both the sides, the District Consumer Forum passed
      separate impugned orders rejecting the applications of the opponent No.1
      holding that it has no jurisdiction to cancel the sale deeds, etc.
      However, the District Consumer Forum observed that it was necessary to
      join opposite party No.2 to 6 in execution proceeding as they are
      necessary parties. There after opponent Nos. 2 to 6 were made party to
      the execution proceeding.6.
      However, feeling aggrieved by the order of the District Consumer
      Forum holding that it has no jurisdiction to cancel the sale deed,
      opponent No.1 has preferred these 2 separate revision petitions.7.      We heard Mr. Vilas Asarkar,
      revision petitioner in person and also Adv. Mr. Vora appearing for the
      complainant/respondent No.1, perused the copy of impugned judgment and
      also the copy of original judgment passed in consumer complaint and also
      the copy of judgment of the Sate Commission which was passed in appeal
      No. 59/2006 and also the copies of other documents.8. However, we have had
      no opportunity to hear the opponent / respondent Nos.2 to 7 as they
      remained absent, though duly served with notice.9. It is submitted by
      revision petitioner- Mr. Vilas Asarkar that since the sale deeds are
      executed in the absence of opponent No.2 to 6 who are land owners, the
      sale deeds are null and void. It is denied that he was power of attorney
      holder of the opponent Nos. 2 to 6 for executing the sale deed. It is
      submitted that the opponents had executed the deed of power of attorney
      in his favour for the purpose of development of land only and not for
      selling the flat, etc. But he could not give any explanation as to why he
      has not challenged the order dated 21/05/2005 passed by the District
      Consumer Forum discharging the opponent Nos.2 to 6. However, he has submitted that in
      execution proceeding such legal point can be challenged, etc. But we find
      little force in the submission of revision petitioner because no legality
      of the order passed by the District Consumer Forum in execution
      proceeding, discharging the opponent Nos.2 to 6, is challenged by the
      Opponent, and there after, the original judgment and order is also
      confirmed by the State Commission in appeal No. 59/2006, same point
      though on legality can not be raised in execution proceeding.10. Further, though the
      opponent No.1 has challenged the execution of sale deeds by the Court
      Commissioner and has submitted to cancel the same, indirectly, he sought
      cancellation or modification of order of District Consumer Forum dated
      28/08/2008 and therefore, the District Consumer Forum held that it has no
      jurisdiction to modify or cancel its own order. It is well settled law
      that under theConsumer Protection Act, 1986, except the National
      Commission, no other authorities i.e. the District Consumer Forum as well
      as the State Commission has power to set aside , cancel, review and
      modify its own order. Therefore, the District Consumer Forum has rightly
      passed the impugned order. We find no glaring error or any illegality in
      the order. Hence, no interference is warranted.11. Apart from the above
      facts during the course of arguments Mr. Vora, Ld. Counsel for the
      respondent No.1 submitted that both the revision petitions are hopelessly
      barred by limitation. He has pointed out from the copy of impugned
      judgment and orders that though the impugned orders were passed in
      presence of opponent No.1 and the opponent No.1 made endorsement as noted
      on 07/9/2008, he has not applied for certified copy of same order till
      15/12/2008. It is submitted that opponent No.1 obtained the copy of
      impugned order on 15/12/2008 and filed these revision petitions on
      06/01/2009 beyond the period of limitation i.e. 90 days, etc. and
      therefore, the revision petitions are not maintainable.12. To which it is denied
      by the opponent No.1- Mr. Vilas Asarkar and submitted that though he
      noted down the impugned order on 07/09/2008 he has not received the copy of the
      same order till 15/12/2008 and therefore, he could not file revision
      petitions in time. But he could not explain as to why he did not apply on
      07/09/2008 or there after within reasonable period so as to file revision
      petitions. Therefore, his explanation that he could not get the copy of
      impugned judgment and order before 15/12/2008 can not be sustained. Thus, it is evident from the record
      that the revision petitions are hopelessly barred by limitation. On this
      ground also the revision petitions deserve to be dismissed.13. For the foregoing
      reasons on any count the revision petitions are not sustainable and
      deserves to be dismissed.Hence, the following
      order,  
       

          
       

 ORDER1.      Both the revision petitions stands
      dismissed.2.      No order as to cost.Dated:- 07/03/2013 
      
     
    
     

 
    
   
    
     
     

 
    
   
    
     
     
       
       
       

 
      
     
      
       
       

[ Hon'ble
      Mr.S.M. Shembole]
      
     
      
       
       

PRESIDING
      MEMBER
      
     
      
       
       

 
      
     
      
       
       

  
       

  
       

[ HON'BLE
      SMT.JAYSHREE YENGAL]
      
     
      
       
       

MEMBER
      
     
      
       
       

 
      
     
      
       
       

  
       

[ HON'BLE
      MR.N. ARUMUGAM]
      
     
      
       
       

MEMBER
      
     
    
     

ay