M. Shreesha ORDER
1. Aggrieved by the order of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai in Execution Application No. EA/17/99 dated 07.03.2018 Gaodevi Utkarsh Co-op. Housing Society (hereinafter referred to as "the Housing Society") preferred Appeal Execution No. 65 of 2018 and M/s. Chauhan Builders Housing Developers Pvt. Ltd. and its Directors/Promoters (hereinafter referred to as the "Developers") preferred Appeal Execution No. 66 of 2018. By the Impugned Order, the State Commission has sent the matter back to Bench No. 1 for further proceedings after giving a finding that the shop contemplated in the order is shop No. 5.
2. The facts in brief are that the Complainant Mrs. Sudesh Darshan Aggarwal purchased a shop bearing No. 468(A) situated at Plot No. 235, Gaondevi Utakarsh Mandal, Link Road, Pahadi Village, Goregaon (West), Mumbai on 29.04.1987. The said building including the said shop of the Complainant was re-developed by the Housing Society through the Developers. It was averred that on 29.11.2003, through the draw of lots, under the re-development agreement, the Complainant was allotted shop No. 5 and one Mrs. Kalawati Jain was allotted shop No. 6. It was stated that the Housing Society and the Developers were not handing over the possession of the shop to the Complainant since 2005 on one pretext or the other and hence the Complainant got issued a legal notice dated 15.03.2014 to them seeking possession of shop No. 5. In their reply to the legal notice, the Developers had admitted that shop No. 5 was to be handed over to the Complainant.
3. The Complainant filed a Complaint before the State Commission seeking directions to Opposite Parties No. 1 to 6 to hand over possession of the new shop i.e. Permanent Alternate Accommodation admeasuring about 225 sq.ft.; to pay 25,000/- per month from the year 2007 together with travel expenses, compensation and costs.
4. It is observed from the record that the Housing Society did not file their Written Version despite service of notice and was set ex-parte by the State Commission.
5. It is stated that on 05.01.2015, the Developers filed their Written Version admitting that shop No. 5 was allotted to the Complainant as per draw of lots. A brief perusal of the Written Version shows that in paragraph 11-d it is clearly stated that they had handed over all the Rehab components to the Society which unanimously decided to allot the commercial/residential components to their eligible members as per lottery system and the Complainant herein was duly allotted shop No. 5 and was put into possession. The same averment is again repeated in paragraphs 11 (paragraph number repeated again in the Written Version), 14, 15, 17 and 19. At the cost of repetition the Developers have reiterated that the Complainant was allotted shop No. 5 by lottery system.
6. It is also seen from the record that the Developers filed evidence by way of affidavit on 20.04.2016 and has categorically admitted that shop No. 5 was allotted to the Complainant.
7. In the substantive order dated 17.01.2017 the State Commission has allowed the Complaint directing the Housing Society (a) to deliver possession of the shop in the re-developed building, (b) pay 50,000/- towards compensation and 15,000/- towards costs.
8. It is submitted by the Learned Counsel for the Complainant that even as on 17.07.2017 the order of the State Commission was not complied with and, therefore, they were constrained to prefer an Execution Application. The State Commission vide its order dated 07.03.2018 in the said Execution Application observed as follows:-
"Considering submissions of advocates for both the sides, we find that, it is necessary to deal with the submission that this Commission has no power to review and hence this Commission now cannot say about the shop No. 5. We find that there is no dispute that this Commission has no power to review. However, we find that matter was send to us only because in operative order passed by this Bench in the said consumer complaint, there is no mention of shop number as shop No. 5. We have gone through the complaint and it is very clear that shop No. 5 is not mentioned in the complaint. It is because of that we have not mentioned shop No. 5 in the operative order while delivering the judgment. We have already referred above that Advocate for the complainant/execution petitioner has admitted that, it was mistake on the part of the complainant in not mentioning the shop number. However, the fact remains that there is a document at page No. 116, which was also in the consumer complaint and it is under the signature of Chief Promoter of the society which is on the letter head of the society. It is Gaodevi Utkarsh Co-operative Housing Society and the society is opponent No. 3. In that document it is very specifically mentioned that to Sudesh Aggarwal, the complainant, shop No. 5 was allotted. In that document, 10 names are included including name of the complainant showing old shop and new shop numbers. It is further material to note that in the said document, it is specifically mentioned that above shops are sanctioned in the name of above members on the ground floor of rehab building facing east side on the link road and is approved by BMC and SRA along with the developer and the managing Committee of the society. Thus, said documents make position clear about the allotment of the shop No. 5 to the complainant and approved by those different authorities and even Managing Committee of the society. Thus, reference by the Advocate for the opponent No. 3 society to page No. 117 showing that no shop number is mentioned against the name of the complainant on that page, is of no help to the opponent. It is not clear what is that document. No shop number is mentioned against the name of the complainant. Only because of that, it cannot be accepted that complainant is not entitled for shop No. 5. To see which shop complainant is entitled, the document at page No. 116 is to be seen, which is already referred above. Thus, said allotment of shop No. 5 to the complainant was sanctioned by BMC and SRA along with the developer and managing Committee of the society. Even opponent Nos. 1 and 2 in their written version have specifically admitted about the allotment of shop No. 5 to the complainant, which we have referred above. Not only that, in the affidavit, opponent No. 1, it is mentioned that shop No. 5 is allotted to the complainant. Even there is notice reply dated 27/03/2014 by Chavan Builders through Advocate to the notice given by the complainant through Advocate specifically mentioned that possession of shop No. 5 was given to the complainant. Thus, we find that though it is not specifically mentioned in the operative order of the judgment that shop No. 5 to be given in possession of the complainant, it is very clear that the complaint was in respect of shop No. 5 and the order is also in respect of the said shop. We have already discussed above that in the operative order we have not mentioned shop No. 5 specifically only because that is not specifically mentioned in the consumer complaint. However, the opponent Nos. 1 and 2 in the written version and in the affidavit specifically admitted about the allotment of shop No. 5 to the complainant. Document at page No. 116 gives death blow to the contention of the opponents that the complainant is not entitled for the shop No. 5, as the said document is very specific. In that document shop No. 5 was allotted to the complainant and that was approved by BMC and SRA along with developer and Managing Committee of the society. That document is on the letter head of the society i.e. opponent No. 3. Thus, it is very clear that the complaint was for shop No. 5, order was also in respect of shop No. 5, though it was not specifically mentioned for the reasons mentioned above. Thus, with the findings that the shop contemplated in the order is shop No. 5, we find it proper to send the matter back to the Division Bench No. 1 for further proceeding."
(Emphasis supplied).
9. Learned Counsel appearing for the Society vehemently argued that the State Commission has erred in relying on the letter dated 29.11.2003 issued by the Housing Society as it pertains to the year 2003 which is prior to the commencement of the construction. He further contended that there is no specific pleading in the Complaint regarding the shop number; that shop No. 5 was already in possession with the third party; that the State Commission has no powers to review its own order and further it cannot go behind the substantive order in execution proceedings.
10. Learned Counsel appearing for the Developers contended that in the Original Complaint, the Complainant did not seek for possession of shop No. 5 and, therefore, the State Commission has simply directed to hand over possession of the shop to the Complainant without mentioning the shop number; it was only after filing of the Execution Application, that the Complainant sought for possession of shop No. 5 and, therefore, the President of the State Commission referred the matter to the Bench which had earlier passed the substantive order. The Bench vide order dated 07.03.2018 proceeded to correct its original order though it did not have the powers to review or recall its order. He vehemently argued that there was no typographical error or mistake on the part of the Commission while passing the substantive order dated 17.01.2017 and, therefore, viewed from any angle the order dated 07.03.2018 deserves to be set aside. He further contended that the Developers had nothing to do with the implementation of the order as it had handed over the building to the Housing Society and it was the duty of the Housing Society to allot the said shops to the entitled members and that the Developers in any SRA Scheme is not permitted to hand over or allot any premises to anyone.
11. At the outset we address ourselves to the issue as to whether including the shop number in the impugned order by the State Commission amounts to review/recall of its earlier order. It is apparent on the face of the record that the Complainant did not mention the shop number in the prayer and, therefore, in the substantive order the State Commission has only directed for possession of 'the shop.' The finding of the State Commission in the impugned order that 'the shop' referred to shop No. 5 does not amount to reviewing or recalling its own order as it is apparent on the face of the record that the Developers in his written version and in his affidavit of evidence has clearly stated that shop No. 5 was allotted to the Complainant by way of draw of lots. The contention of the Learned Counsel appearing for the Society that the allotment letter dated 29.11.2003 cannot be taken into consideration as it pertains to the year prior to the construction does not hold any water as the said allotment has been made to other allottees also and it is categorically stated that the shops mentioned in the said letter are sanctioned in the name of the Members of the ground floor of the rehab building facing east side on the link road and is approved by BMC and SRA along with the Developers and the Managing Committee of the Society. It is pertinent to note that the Society was set ex-parte before the State Commission. Even otherwise a perusal of the Complaint, the substantive order and the impugned order does not anywhere construe that the executing court has traversed beyond its original decree. While the executing court cannot go beyond the substantive order passed, it is also the duty of the executing court to interpret the decree in its truest sense in its endeavour to deliver justice. The Hon'ble Supreme Court in Meenakshi Saxena Vs. ECGC MANU/SC/0592/2018 : (2018) 7 SCC 479 has laid down as follows:-
"18. The whole purpose of Execution proceedings is to enforce the verdict of the court. Executing court while executing the decree is only concerned with the execution part of it but nothing else. The court has to take the judgment in its face value. It is settled law that executing court cannot go beyond the decree. But the difficulty arises when there is ambiguity in the decree with regard to the material aspects. Then it becomes the bounden duty of the court to interpret the decree in the process of giving a true effect to the decree."
12. At the cost of repetition, in paras 11, 14, 15, 17 and 19 of the Written Version the Developers pleaded that shop No. 5 was allotted to the Complainant in the draw of lots. The same averment was advanced in their reply to the legal notice and also in their Affidavit by way of evidence. This shows that the Complainant had vested rights in shop No. 5. Keeping in view the material on record, we are of the considered view that the Executing Court has only clarified its original order and interpreted 'the shop' to be 'shop No. 5'.
13. For all the afore-noted reasons, we find no illegality or infirmity in the order passed by the State Commission directing the Housing Society to deliver shop No. 5 to the Complainant. Therefore, Appeal Execution bearing AE No. 65 of 2018 is dismissed.
14. However, we find force in the contention of the Developers that they had already handed over the building to the Housing Society and it is the duty of the Housing Society to allot the shops to the Members. Though the document dated 29.11.2003 states that the allotment of different shops to the Members of the Housing Society has been approved by BMC and SRA along with the Developers and the Managing Committee of the Housing Society, there is no documentary evidence on record to substantiate that it is the Developers who has to make the allotments to the Members of the Housing Society. Hence Appeal Execution bearing No. 66 of 2018 preferred by the Developers is allowed while confirming the rest of the order of the State Commission in respect to the Housing Society.
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