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The Hamirpur Cooperative House Building Society Ltd. and Another Vs. Gian Chand and Others - Court Judgment

LegalCrystal Citation
CourtHimachal Pradesh State Consumer Disputes Redressal Commission SCDRC Shimla
Decided On
Case NumberFirst Appeal No. 89, 90 of 2014
Judge
AppellantThe Hamirpur Cooperative House Building Society Ltd. and Another
RespondentGian Chand and Others
Excerpt:
.....date of receipt of copy of order (passed pursuant to the settlement) and within next fifteen days, sale deed in respect of the allotted flat was to be executed by opposite party no.1. 5. the order was sought to be challenged by opposite party no.2 before this commission by filing an appeal. since the appeal was barred by time, an application for condonation of delay was moved. the application was dismissed, vide order dated 17.04.2012, and consequently the appeal was also dismissed, being barred by time. opposite party no.2 sought to challenge the order of this commission, dismissing the appeal, being barred by time and filed a revision petition before the honble national consumer disputes redressal commission. the revision petition was also barred by time. so an application for.....
Judgment:

Justice (Retd.) Surjit Singh, President (Oral):

1. By this common order, we proceed to dispose of two appeals, i.e. F.A. No. 89/2014 and F.A. No.90/2014, as both of these are directed against the same order, i.e. order dated 23.01.2014, of learned District Consumer Disputes Redressal Forum, Kangra at Dharamshala.

2. Respondent No.1-Gian Chand, in both the appeals, (hereinafter called complainant) being a Member of Hamirpur Cooperative House Building Society, appellant in F.A. No.89/2014, (hereinafter referred to as opposite party No.1) was issued a letter of allotment of a flat that was to be constructed by opposite party No.1. Despite complainant having paid the substantial amount of money towards the cost of construction of flat, possession of the flat was not delivered to him. He, therefore, filed a complaint, under Section 12 of the Consumer Protection Act, 1986, seeking a direction to opposite party No.1 to allot the flat. Managing Director, Himachal Pradesh State Cooperative Housing Federation Ltd., appellant in F.A. No.90/2014 (hereinafter called opposite party No.2) was impleaded because opposite party No.1 had raised loan from opposite party No.2 to construct the flats.

3. That complaint was allowed and order was passed by the learned District Forum directing the opposite party No.1 to deliver possession of the house (sic it should have been flat). Order was passed on 02.08.2001. Order attained finality because the appeal filed against it was dismissed, as regards the direction for delivery of possession of the flat.

4. An execution petition was filed by the complainant to execute the said order, as the possession had not been delivered to him. The petition was filed in the year 2007 and was registered as Execution Petition No.15/2007. In the course of proceedings of the execution petition, parties entered into a settlement in terms of which the complainant was to pay a sum of `25,000/- by way of draft, within fifteen days, from the date of receipt of copy of order (passed pursuant to the settlement) and within next fifteen days, sale deed in respect of the allotted flat was to be executed by opposite party No.1.

5. The order was sought to be challenged by opposite party No.2 before this Commission by filing an appeal. Since the appeal was barred by time, an application for condonation of delay was moved. The application was dismissed, vide order dated 17.04.2012, and consequently the appeal was also dismissed, being barred by time. Opposite party No.2 sought to challenge the order of this Commission, dismissing the appeal, being barred by time and filed a revision petition before the Honble National Consumer Disputes Redressal Commission. The revision petition was also barred by time. So an application for condonation of delay was moved. That application for condonation of delay was dismissed and consequently revision petition was also dismissed. That means, the order dated 03.08.2010, passed by the learned District Forum pursuant to settlement between the parties, per which the complainant was to pay a sum of `25,000/-, to opposite party No.1, within fifteen days and in the next fifteen days, the opposite party No.1 was to execute the sale deed, attained finality.

6. When the sale deed was not executed, pursuant to the aforesaid settlement order dated 03.08.2010, another execution petition, which was registered as Petition No.53/2011, was filed. That petition has been allowed, vide impugned order, which is dated 23.01.2014. A direction is given to opposite party No.1 to execute the sale deed within thirty days, failing which the Liquidator of opposite party No.1, has been ordered to undergo simple imprisonment for a period of six months and to pay a fine of `5,000/-.

7. Opposite party No.1 in the grounds of appeal has stated that as a matter of fact, the Liquidator, who made statement leading to the passing of order dated 03.08.2010, could not have lawfully made the statement, unless he obtained prior approval of Registrar of Cooperative Societies and that the person holding the office of the Receiver, at that time, has been transferred and in his place, the present incumbent who took over the charge approached the Registrar of Cooperative Societies to accord approval for the execution of the sale deed and since the Registrar took a good deal of time, sale deed could not be executed, pursuant to the order dated 03.08.2010, as also the impugned order, within the stipulated period. Now the sale deed is stated to have been executed.

8. In view of the fact that the present incumbent of the post of Liquidator of opposite party No.1 applied for approval of the Registrar, Cooperative Societies, for executing the sale deed and delay in executing the sale deed has taken place because of delay on the part of the Registrar of Cooperative Societies to accord the approval, as also the fact that now the sale deed has been executed, appeal filed by opposite party No.1 against the order for his imprisonment and payment of fine, is allowed and the order of imprisonment and payment of fine is set aside.

9. As regards the second appeal, filed by opposite party No.2, learned counsel representing the said opposite party submits that the counsel engaged by the opposite party No.2 to defend it in the initial execution petition, in which order dated 03.08.2010, had been passed, was not authorized to make a statement for the execution of the sale deed by opposite party No.1 in favour of the complainant. This submission of learned counsel for the opposite party No.2, i.e. appellant in F.A. No.90/2014, cannot be accepted, in view of the fact that the order based on settlement, passed on 03.08.2010, has attained finality, as narrated hereinabove.

10. Consequently, appeal filed by opposite party No.2 is also dismissed.

11. This order be placed on the record of F.A. No. 89/2014 and its authenticated copy on the record of F.A. No.90/2014.

12. One copy of this order be sent to each of the parties, free of cost, as per Rules.


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