PATEL GANPATLAL ISHWARLAL Vs. GAJJAR BHARATKUMAR AMTHALAL

JUDGEMENT

(1.) This appeal arises from order dated 4.11.2003 rendered by the learned Consumer Disputes Redressal Forum, Banaskantha in Darkhast No.45 of 2003 giving one more opportunity to the opponents to abide by the order passed by the learned Forum in Consumer Case No.78 of 2002 on 31.3.2003.

(2.) In order to appreciate the submissions made by the rival parties, it would be necessary to note brief facts with regard to the original proceeding as well as the execution proceeding. It was the complainant's case in Consumer Case No.78 of 2002 that the opponents, builders, carried on business/occupation of constructing houses and allotting and selling them to the consumers. The complainant proposed to purchase one such house constructed/to be constructed on Plot No.22 for consideration of Rs.3,58,501/- and made payments as per the particulars set out in the complaint. The opponents did not clear the title of the property as promised. They did not hand over possession of the property as promised and they sold away the property in question to some third party, informing the complainant that there were disputes between the partners and they were in need of finance. Under such circumstances, the complainant filed complaint for issuing direction to the opponents to accept balance consideration of Rs.3,08,500/- and hand over the possession of the property in question along with the title clearance thereof by executing sale deed and on failure to do so, to direct them to return the amount of Rs.50,000/- paid by the complainant to the opponents with interest. The learned Forum directed the opponents to allot and hand over possession of the property to the complainant by accepting balance amount of consideration of Rs.3,08,501/- within 45 days of the order and execute the sale deed by obtaining necessary title clearance and permission and upon opponents' failure to do so, to return Rs.50,000/- with interest @ 9% p. a. from 16.8.2001 and cost quantified at Rs.2,000/-.

(3.) The complainant filed execution petition being Darkhast No.45 of 2003. It is not in dispute that pursuant to the impugned order in Darkhast, the opponents have deposited certain amount with the learned Forum. However, they resisted the Darkhast on the ground that the learned Forum lacked inherent jurisdiction in deciding the complaint and, therefore, the orders sought to be executed was non est and nullity in the eye of law. The learned Forum came to the conclusion that since such a contention was not taken in the complaint proceeding, the opponents were not entitled to raise it in the Darkhast proceeding. The learned Forum, therefore, issued direction as aforesaid.