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2009(1) CPR 408
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MUMBAI
P.N. Kashalkar, Presiding Judicial Member and S.P. Lale, Member
Eshita Dye Chem Pvt. Ltd. —Petitioner
versus
Chetan Ramesh Kothari —Respondent
Revision Petition No. 80 of 2007
Decided on 19.11.2008
Held: Attachment of movable property has been raised because decreetal amount has been deposited by the concerned party in the Forum below, once decreetal amount is deposited, attachment order is raised and property stands released in favour of the person from whom it was attached. When this is so, where is the question for this Commission to quash the attachment order in both the execution proceedings pending against Khandhar Brothers. Moreover, it must be borne in mind that Consumer Forum has got limited power to decide deficiency in service or other related matters, but Forum below cannot decide question of title of movable or immovable property. If question of title is involved, aggrieved party has to file civil suit. Forum had simply issued certificate under Section 25(3) of Consumer Protection Act, 1986 on finding that Mr. Praful Khandhar and his brother Mr. Surendra Khandhar were not complying with its order. Therefore in execution applications, their property was directed to be attached simply by sending recovery certificate to the Collector. All other proceedings were taken before Collector or Tahsildar Thane. If property is attached by the Collector or Revenue Officer wrongly, in our view the objection to the attachment of property has to be taken before the Collector and not before the Consumer Fora. This was overlooked by the petitioners moving applications before the Forum for raising the attachment order issued by it. In fact Forum below had not issued order of attachment. Forum below simply issued recovery certificate under Section 25(3) and consequent upon receipt of recovery certificate to recover certain dues from the judgment debtors, Collector Mumbai and Tahsildar Thane had taken further proceeding to attach the property in possession of Mr. Surendra Khandhar and Mr. Praful Khandhar. Thereafter revision petitioners herein moved Hon’ble High Court by filing two writ petitions mentioned supra and when those writ petitions were pending before the Hon’ble High Court, decreetal amount was deposited on behalf of Mr. Surendra Khandhar and Mr. Praful Khandhar and therefore, Hon’ble High Court found that writ petitions filed by M/s. Eshita Dye Chem Pvt. Ltd. and Mr. Gaurav Khandhar became infructuous. Their property has been released from attachment. When this is so, we fail to understand as to how these two revision petitions still came to be filed by M/s. Eshita Dye Chem Pvt. Ltd. and Mr. Gaurav Khandhar. Thus rejection of applications preferred by these two revision petitioners by the Forum below by its impugned order dated 5.6.2007 is appearing to be just and proper and it does not call for any interference by this Commission exercising revisional jurisdiction. (Para 5)
Result: Revisions dismissed.
P.N. Kashalkar, Presiding Judicial Member—Being aggrieved by the order passed by Central Mumbai District Consumer Forum in Execution application Nos. 3/2006 & 4/2006, whereby Forum below was pleased to reject applications of objection taken by M/s. Eshita Dye Chem Private Ltd. and Mr. Gaurav Khandhar respectively. Both of them separately filed these revision petitions challenging the same order. Since both the revision petitions are pertaining to the same property, we would like to dispose of both these revision petitions by this common order. Facts to the extent material may be stated as under:
2. One Mr. Chetan Ramesh Kothari had filed consumer complaint Nos. 63/2002 and complaint No.1141/2003 against the Opponents, Chairman Mr. Hussain Shaikh and Managing Director Mr. Surendra Khandhar and Director Mr. Praful M. Khandhar for recovery of amount invested with the opponents. Those complaints were decided by the Forum by passing award. Mr. Chetan Ramesh Kothari filed Execution application Nos. 3/2006 & 4/2006. Opponents did not pay the amount and ultimately, Forum below had issued Recovery certificate to the Collector of Mumbai under Section 25(3) of Consumer Protection Act, 1986. Collector directed Tahsildar Thane to recover the amount as arrears of land revenue. Tahasildar attached movable property from the flat located at 901, Jehangir Towers, 9th floor, Setalwad Lane, Napeansea road, Mumbai-400 006 in Execution Application No. 3/2006 and another property situated Tej Gaurav House, Telang Road, Matunga (E), Mumbai-19 in Execution Application No. 4/2006. Out of these two flats, one was in possession of Mr. Praful Khandhar and the other was in possession of Mr. Surendra Khandhar against whom order was passed they being Directors of M/s. Suman Motels Ltd. Movable property was kept for public auction on 10.10.2006. Aggrieved by the attachment, M/s. Eshita Dye Chem Pvt. Ltd. and Mr. Gaurav Khandhar filed revision petition Nos.130/2006 and 131/2006 contending that property attached belongs to M/s. Eshita Dye Chem Pvt. Ltd. and Mr. Gaurav Khandhar respectively. Revision petitions were allowed and Forum was directed to decide issue of attachment of movable property belonging to third person. So M/s. Eshita Dye Chem Pvt. Ltd. revision petitioner in R.P. No. 80/2007 and Mr. Gaurav Khandhar/revision petitioner in R.P. No. 81/2007 had moved applications against the attachment order. It is also pertinent to note that the company, who is revision petitioner in R.P. No. 80/2007 and Mr. Gaurav Khandhar, who is revision petitioner in R.P. No. 81/2007, both had filed writ petition Nos. 2639/2006 and 2640/2006 before the Hon’ble High Court on 12.10.2006. Both the revision petitions were disposed of by the Hon’ble High Court observing that sale of movable property has been postponed by Tahsildar, Thane in view of the fact that an amount of Rs. 2,11,875 and an amount of Rs. 3,16,666 were deposited by pay order by Mr. Praful M. Khandhar and Mr. Surendra Khandhar respectively and therefore, attachment of the property had been raised. When this is so, still application was presented before the Forum by M/s. Eshita Dye Chem Pvt. Ltd. and Mr. Gaurav Khandhar, who are revision petitioners in these two revision petitions claiming that the property attached belonged to them.
3. On hearing both the counsels, Forum below was pleased to reject their objection to the attachment and therefore, these two revision petitions came to be filed one by M/s. Eshita Dye Chem Pvt. Ltd. and another by Mr. Gaurav Khandhar.
4. We heard submissions of Mr. Dayanandan Advocate for the petitioners and Mr. U.B. Wavikar Advocate for the respondent/org. complainant.
5. We are finding that the order passed by the Forum below is just and proper. In fact with the deposit of amount of award, the attachment order has been raised as has been observed by Hon’ble High Court, Bombay in its order dated 12.10.2006. When this is so, the revision petitioners should not have moved th
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