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2016 DIGILAW 551 (KER)

Ramesh Kumar (Dr. ) v. Pukkalakkat Properties Pvt. Ltd.

2016-06-27

P.B.SURESH KUMAR

body2016
JUDGMENT : 1. The petitioner is aggrieved by an order by which the District Consumer Disputes Redressal Forum, Emakulam ('the District Forum' for short) constituted under the Consumer Protection Act ('the Act' for short) has rejected an application preferred by him for execution of an order passed under the Act. 2. The fads relevant for the disposal of the case are the following: The petitioner has purchased an apartment in an apartment complex constructed by the first respondent. The said apartment complex was constructed by the first respondent based on construction agreements entered into by them with the petitioner and others. According to the petitioner, the apartments delivered to him and others were not conforming to the terms of the construction agreements and consequently, they preferred complaints before the District Forum under the Act. The complaints were disposed of by the District Forum by a common order dated 31-3-2012. Aggrieved by the said order, the petitioner and others preferred a batch of appeals before the Kerala State Consumer Disputes Redressal Commission ('the State Commission' for short). While the matter was pending before the State Commission, the petitioner and others have entered into a compromise with the first respondent and a petition to that effect was filed before the State Commission, praying for orders to dispose of the appeals recording the terms of the compromise. On the basis of the said application, the appeals were disposed of as per Exhibit P-1 order. The petition preferred by the petitioner and others for recording the compromise has also been appended to Exhibit P-1 order. The case of the petitioner is that the first respondent has not fulfilled the terms of the compromise and consequently, he filed Exhibit P-2 application before the District Forum for executing the terms of the compromise. On receipt of notice of Exhibit P-2 application, the first respondent also filed an application for executing the terms of the compromise. Exhibit P-4 is the application preferred by the first respondent for the said purpose. Exhibits P-2 and P-4 applications have now been rejected by the District Forum as per Exhibit P-7 order, holding that the compromise entered into between the petitioner and others on one side and the first respondent on the other side, has not been recorded in Exhibit P-1 order. The petitioner is aggrieved by Exhibit P-7 order and hence this writ petition. 3. The petitioner is aggrieved by Exhibit P-7 order and hence this writ petition. 3. A counter-affidavit has been filed by lire first respondent in this matter. Though the first respondent has admitted in the counter-affidavit that they have also preferred an application for execution of the terms of the compromise, it is contended by them that the State Commission has not recorded the compromise arrived at between the parties in its order and therefore, Exhibit P-1 order cannot be executed. It was also contended by the first respondent that, at any rate, a compromise in the nature of one entered into between the parties in the case cannot be executed by the District Forum invoking its power under Section 25(3) of the Act. 4. Heard the learned counsel for the petitioner as also the learned counsel for the first respondent. 5. The learned counsel for the petitioner, relying on Exhibit P-1 order passed by the State Commission, contended that the said order is one disposing of the appeals, recording the compromise. According to the learned counsel, if the Slate Commission had not intended to record the compromise in its decision, there was no need at all to append the compromise petition in Exhibit P-1 order. Per contra, the learned counsel for the first respondent, relying on Section 25(3) of the Consumer Protection Act, contended that the limited jurisdiction of the District Forum in an application for execution of an order is to see whether the amount directed to be paid in the order has been paid and the District Forum has no jurisdiction to adjudicate the issue relating to the amount payable by one party to another as per the terms of a compromise, if the order docs not specify the amount. In other words, the contention raised by the learned counsel is that in a case where the order does not specify the amounts to be paid by one party to another, the District Forum cannot adjudicate the issue relating to the amounts payable. 6. Exhibit P-1 recites that the matter is settled between the parties and a compromise petition has been filed. It also recites that in the light of the compromise, the appeals are disposed of. The order reads thus: "Matter settled between the parties. 6. Exhibit P-1 recites that the matter is settled between the parties and a compromise petition has been filed. It also recites that in the light of the compromise, the appeals are disposed of. The order reads thus: "Matter settled between the parties. In lieu of the compromise petition filed by both parties appeal disposed of accordingly." The compromise petition filed by the parties before the State Commission is also seen appended to Exhibit P-1 order. As rightly pointed out by the learned counsel for the petitioner, if the State Commission had not intended to record the compromise arrived at between the parties in its order, there was no reason at all for the State Commission to append the compromise petition in the order. In the circumstances, I have no hesitation to hold that Exhibit P-1 is an order disposing of the appeals recording the compromise arrived at between the parties. 7. The question remaining to be considered is whether the District Forum has jurisdiction to execute an order recording a compromise as in the instant case, in exercise of its power under Section 25(3) of the Act. Section 25(3) of the Consumer Protection Act reads thus: "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. Stale 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 Suite 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." Section 25 as originally contained in the Act was substituted by Act 62 of 2002 will effect from 15-3-2003. Prior to the said amendment, Section 25 of the Act read as follows: 25. Prior to the said amendment, Section 25 of the Act read as follows: 25. Enforcement of orders by the Forum, the State Commission or the National Commission: Every order made by the District Forum, the State Commission or the National Commission, may be enforced by the District Forum, the State Commission or the National Commission as the ease may be, in the same manner as if it were a decree or order made by a court in a suit pending therein and it shall be lawful for the District Forum, the State Commission or the National Commission to send, in the event of its inability to execute it, such order to the court within the local limits of whose jurisdiction- (a) in the case of an order against a company, the registered office of the company is situated, or (b) in the case of an order against any other person, the place where the person concerned voluntarily resides or carries on business or personally works for gain, is situated, and thereupon, the court to which the order is so sent, shall execute the order as if it were a decree or order sent to it for execution. A comparison of the provision prior to and after the amendment indicates beyond doubt that the intention of the legislature was to confer power on the District Forum to decide all issues relating to the execution of its orders. Otherwise, there was no reason to lake away the power originally conferred on the District Forum to refer execution petitions, in the event of its inability to execute it, for decision to the civil court. Further, the amended provision for execution is not that the District Forum shall issue a certificate to the Collector for realisation of the amount specified in the order. Instead, the same provides that the District Forum shall issue a certificate for the amounts due under the order. In other words, in the event of a dispute as to whether any amount is due, the same shall necessarily be decided by the District Forum. Any other interpretation of the provision contained in Section 25(3) of the Act would lead to a situation where the Forums constituted under the Act may not be able to dispose of a complaint based on the compromise arrived at between the parties. 8. Any other interpretation of the provision contained in Section 25(3) of the Act would lead to a situation where the Forums constituted under the Act may not be able to dispose of a complaint based on the compromise arrived at between the parties. 8. As far as the present case is concerned, it is alleged by the petitioner in Exhibit P-2 execution petition that amounts are due to him from the first respondent as per the terms of Exhibit P-1 order passed by the State Commission. The prayers in Exhibit P-2 execution petition read thus: "(i) issue a certificate under Section 25 of the Consumer Protection Act for an amount of Rs. 4,70,000 (Rupees Four Lakhs Seventy Thousand only) and interest. @ 6% per annum from March, 2007, till date of realisation, to the District Collector, Ernakulam and direct the District Collector, Ernakulam to proceed and recover the said amounts as arrears of land revenue and pay the same to the Pukkalakkat Narmada Enclave Flat Owners' Association (Reg. No. ER 528/08). (ii) issue a certificate under Section 25 of the Consumer Protection Act for an amount of Rs. 7,50,000 (Rupees Seven Lakhs Fifty Thousand only) and interest @ 6% per annum from March, 2007, till date of realisation, to the District Collector, Ernakulam and direct the District Collector, Ernakulam to proceed and recover the said amounts as arrears of land revenue and pay the same to the Pukkalakkat Narmada Enclave Flat Owners' Association (Reg. No. ER 528/08) who are not provided car parking by the opposite party. (iii) issue a certificate under Section 25 of the Consumer Protection Act for an amount of Rs. 25,00,000 (Rupees Twenty Five Lakhs only) to the District Collector, Ernakulam and direct the District Collector. Ernakulam to proceed and recover the said amounts as arrears of land revenue and pay the same to the Pukkalakkat Narmada Enclave Flat Owners' Association (Reg. No. ER 528/08) for completing the works agreed to as per the compromise agreement." 9. Since the first respondent has disputed the claim of the petitioner, it was incumbent on tire District Forum to resolve the said issue. Admittedly, the said issue was not resolved by the District Forum. Exhibit P-7 order, in the circumstances, is liable to be quashed. 10. In the result, the writ petition is allowed. Since the first respondent has disputed the claim of the petitioner, it was incumbent on tire District Forum to resolve the said issue. Admittedly, the said issue was not resolved by the District Forum. Exhibit P-7 order, in the circumstances, is liable to be quashed. 10. In the result, the writ petition is allowed. Exhibit P-7 order of the District Forum is quashed and the District Forum is directed to consider Exhibit P-2 application afresh in accordance with the provisions contained in the Consumer Protection Act and the Rules made thereunder.