RUSHABH ENTERPRISES Vs. ANAND SHAMRAO GANDRE AND ORS

JUDGEMENT

(1.) HEARD Mr. A. V. Patwardhan -Advocate for the appellant & Mr. C. P. Deogirikar -Advocate for the respondent.

(2.) THIS appeal arises from the decision of consumer complaint no. 138/2005 decided by the District Consumer Disputes Redressal Forum, Thane. It is interesting to note that initially by order dated 02/01/2006, the complaint was partly allowed and the appellant was directed to pay Rs.20,000/ - by way of compensation with an interest @ 9% p. a. on the amount of compensation awarded along with cost of Rs.5000/ -. It was further directed by the District Consumer Disputes Redressal Forum that the above order shall be obeyed within 60 days from the date of receipt of the order, failing which appellant shall be liable to pay an additional penal interest @ 3% p. a. from the date of agreed possession i. e. from 10/05/2002 till complete satisfaction. This order was passed against the appellant ex -parte. Thereafter, it appears that the original complainant/ respondent had preferred an application to the District Consumer Disputes Redressal Forum seeking modification in the order. That application was entertained being MA/1/2006 and in the said misc. application, further order was passed by the said District Consumer Disputes Redressal Forum on 10/01/2006. By allowing the said misc. application. District Consumer Disputes Redressal Forum after maintaining the earlier order passed on 02/01/2006, further added following portion in the final order.

(3.) IT appears that thereafter the orders were placed under execution by the complainants /respondents by filing an execution application no. 24/2006. After the service of the notice in said execution application, the appellant/original opponent came to know the orders and, therefore, appellant filed Revision application no. 29/2008 on 29/04/2008. However, it appears that after hearing the Ld. counsel Mr. Patwardhan for the petitioner, said revision application was allowed to be withdrawn. It appears from the order passed by the State Commission that in revision application which was filed against execution application, the orders passed in consumer complaint were not challenged but the execution was challenged. But having found that the initial orders passed in the complaint are binding and since there is no appeal under section 15, the said revision application was allowed to be withdrawn in order to avoid further complication and, thus, by order dated 24/07/2008, said revision application was withdrawn. Thereafter, original orders passed in consumer complaint no. 138/2005 are being challenged by filing the present appeal on 31/07/2008. What we find that within 5 days after withdrawal of revision application, appeal has been filed. However, since the revision application was as against the order passed in execution matter, the appellant has calculated the delay from the date of the order and having found that there is delay of 721 days, appellant along with appeal has filed delay condonation application bearing no. MA/2008/1488. This application along with appeal is before us. Before we consider the matter on merit, we would like to record the statement made by Mr. Patwardhan. Mr. Patwardhan categorically states that the initial order passed by the District Consumer Disputes Redressal Forum on 02/01/2006 is not being disputed and challenged in this proceeding. He further states that the amounts as directed in the order dated 02/01/2006 have been already paid in the execution application, which is pending before the District Consumer Disputes Redressal Forum and, therefore, he is not desirous of challenging the initial order dated 02/01/2006. In view of the statement made by the Ld. counsel, appeal as against the order dated 02/01/2006 in consumer complaint no. 138/2005 is concerned, stands disposed of.