Per – Hon’ble Mr. P. N. Kashalkar, Presiding Judicial Member
By a separate order passed on 3/2/2012 in Miscellaneous Application No.243 of 2011, the delay in filing this appeal stands condoned. Admitted and heard forthwith with the consent of the parties. Heard Adv. Manohar N. Rajput on behalf of the Appellants/original Decree-Holders and Adv. Ramakant Pawar on behalf of the Respondents/original Judgment Debtors.
[2] We are finding that the Additional District Consumer Disputes Redressal Forum clearly erred in law in dismissing the Darkhast Proceeding No.41 of 2009, Mr. Ashok Tanbaji Uike and Others Vs. M/s. Shiv Swastik Builders and Developers and Others, arising out of original Consumer Complaint No.227 of 2008, decided on 13/5/2009, filed by the Appellants/original Decree-Holders under Section-27 of the Consumer Protection Act, 1986 only on finding that on 4/12/2010 the Appellants/original Decree-Holders were unfortunately absent. In fact, an execution proceeding under Section-27 of the Consumer Protection Act, 1986 should not be dismissed in this fashion because it is criminal prosecution of the accused initiated under Section-27 of the said Act on finding that there is a deliberate default being perpetually committed by the Judgment-Debtor who owed a legal duty to comply with the directions given as per award passed by the District Forum. Since those directions are not yet complied with and since the Respondents herein (original Judgment-Debtors) have not yet conveyed the title in favour of the society of the flat-purchasers, including the Appellants/Decree-Holders, the execution proceeding which was on the file of the District Forum and which has been dismissed on 4/12/2010 needs to be restored back to the file of the District Forum so that the execution proceeding is taken to its logical and legal end. In the circumstances, we pass the following order:-
ORDER
Appeal is allowed.
Impugned order dated 04/Dec/2010 passed by the Additional District Consumer Disputes Redressal Forum, Thane in Darkhast Proceeding No.41 of 2009, arising out of original Consumer Complaint No.227 of 2008, is hereby quashed and set aside. Consequently, said Darkhast proceeding is restored to the file of the District Forum.
The District Forum is hereby directed to pursue the Darkhast Proceeding in the right earnest and proper spirit to help the harassed Decree-Holders and to ensure that the Judgment-Debtors are punished if they are not in a mood to comply with the directions passed by the District Forum in the award.
Parties are hereby directed to appear before the District Forum in the said Darkhast Proceeding on 20/March/2012.
No order as to costs.
Inform the parties accordingly.
Pronounced and dictated on 03rd February, 2012
