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2023 SCC OnLine NCDRC 401

†
In the National Consumer Disputes Redressal Commission
(BEFORE DEEPA SHARMA, PRESIDING MEMBER)

Ajmera Housing Corporation (Bangalore) and

Another … Appellant(s);
Versus
Prabin Kumar Bardhan … Respondent(s).
‡
Appeal Execution No. 203 of 2018
Decided on February 27, 2023
Advocates who appeared in this case:
For the Appellant : Mr. Sudhir K Makkar, Sr. Advocate with Ms.
Saumya Gupta, Advocate;
Ms. Veera Mathai, Advocate;
Ms. Shweta Singh, Advocate;
For the Respondent : Ms. Anushree Kapadia, Advocate;
Mr. Ved Vyas Tripathi, Advocate;
Ms. Ruchi Chauhan, Advocate.
ORDER
1. The present Appeal has been filed by the Judgment Debtors
against Execution Petition No. 34 of 2017 under Section 27 of the
Consumer Protection Act, 1986 (in short, the Act) which was listed for
hearing before the State Commission for 22.03.2017.
2. This Commission vide its order dated 21.02.2019 has held as
under:
“We have perused the Order dated 16.09.2016 passed in
Complaint No. 136 of 2011 and the impugned Order dated
31.07.2018 of the State Commission passed in Execution Petition
No. 34 of 2017.
The Order dated 16.09.2016 of the State Commission is as below:
ORDER
The complaint is hereby allowed with cost of Rs. 5,000/-.
The OPs are directed to execute register sale deed in the name
of the complainant and to hand over possession of scheduled flat
to the complainant by receiving balance of Rs. 1,94,494/- from
the complainant. The complainant shall pay necessary stamp duty
and registration charges required to be paid at the time of
registration of sale deed in his favour. The OPs are directed to
execute the sale deed within three months from the date of
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receipt of the order. If the OPs fail to execute the sale deed and
deliver possession of the apartment then the OPs are liable to
refund entire amount of Rs. 38,89,406/- with interest at the rate
of 18% p.a. from the respective dates of payment till the date of
actual realization.
If OPs do not comply with this order, the complainant is at
liberty to take action under Section 25/27 of the Consumer
Protection Act, 1986.”
We accordingly note that the principal relief provided is that the
complainant shall pay Rs. 1,94,494/- to the builder co. and pay
stamp duty and registration charges and the builder co. shall
execute the sale deed and hand over possession of the subject flat to
the complainant. On failure or omission to comply with the principal
relief, an alternative relief of refund of the principal amount with
interest is provided.
Today arguments were partly heard. The learned counsel for the
complainant is requested to show the steps taken by the
complainant to pay the balance consideration of Rs. 1,94,494/- and
pay the stamp duty and registration charges. The learned counsel for
the complainant wants some time to file his reply and argue. A time
of four weeks is granted to file his reply. A copy in advance may be
provided to the other side.
In the facts and specificities of the case, and in the interest of
justice, we condone the delay of 22 days in filing this appeal
execution.
List on 16.04.2019 for further hearing.”
(emphasis provided by me)
3. Despite these directions, the respondent/Decree Holder has not
placed on record any proof to show that she had ever purchased the
stamp duty or paid the registration charges. It is also not shown that
balance consideration of Rs. 1,94,494/- was offered to the
Appellant/Judgment Debtor. Today, it is submitted by counsel for the
Decree Holder that she had filed an affidavit to this effect but the
counsel for the Appellant/Judgment Debtor, however, submits that
Decree Holder was directed to file the proof but no such proof has been
filed by her so far and since they have not complied with first part of
the decree, directing them to pay the registration charges and pay the
stamp duty and also the balance consideration amount, the impugned
order of the State Commission holding that Decree Holder is entitled for
the refund is illegal order and liable to be set aside. It is submitted that
Appellant/Judgment Debtor has always been ready to hand over the
possession and it was the complainant who had not completed its part
as per the decree so far.
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4. It is submitted on behalf of the Decree Holder that present Appeal

is not maintainable in view of the fact that impugned order is not an
order under Section 27 of the Act because there is no order of arrest or
any coercive action and, therefore, present Appeal is not maintainable.
Reliance has been placed on the findings in the case of Ansal Lotus
Melange Projects Pvt. Ltd. v. Anuradha Mohan, 2021 SCC OnLine
NCDRC 298, Shrikant Gopalrao Prabhune v. Branch Manager, HDFC
Bank Ltd., 2015 SCC OnLine NCDRC 4793 and Subrata Roy v. Rajesh
Chanana, 2021 SCC OnLine NCDRC 418.
5. It is argued on behalf of the Judgment Debtor that since the
Decree Holder has invoked the jurisdiction of the State Commission
under section 27 of the Act by filing the execution petition, all the
orders of the State Commission in the Execution Petition are the orders
passed in exercise of the jurisdiction under section 27 of the Act
including the impugned order. The Appeal, therefore, lies under section
27-A and thus is maintainable. It is also argued that vide the impugned
order, the State Commission has taken away the valuable rights of the
Appellant and, therefore, it cannot be considered as an interlocutory
order not affecting the rights of the Appellant. It is submitted that an
Appeal on both facts and law can be filed under section 27-A. It is
submitted that Appellant/judgment Debtor is ready to hand over the
possession provided other conditions as mentioned in the decree are
complied with by the decree holder. It is further argued that findings in
the cases relied upon by the Decree Holder are given on different set of
facts are not relevant. It is submitted that in Ansal Lotus Melange
Projects Pvt. Ltd. and Subrata Roy (supra), directions had been issued
to secure the attendance of a person against whom the warrants had
been issued and it was in that scenario that this Commission had held
in these cases that Appeal was not maintainable under section Section
27-A. It is also submitted that in Shrikant Gopalroa Prabhune (supra),
wherein a reference was made and in answer to that reference, three
Member Bench of this Commission has clearly held in para 9 of the
order that Appeal under section 27-A of the Act is maintainable when
an order has been passed by the State Commission in exercise of its
jurisdiction under section 27 of the Act irrespective of whether it is a
final order, intermediate order or interlocutory order.
6. I have given my thoughtful consideration to the rival contentions
of the parties. As earlier mentioned by this Commission in its order
dated 21.02.2019, the first part of the Decree imposes a duty upon the
decree holder himself to pay the balance consideration to the Judgment
Debtor Builder and also to pay the stamp duty and registration charges
and then only the liability of the builder to execute the sale deed arises
and the order subsequently provides that when needful is done by the
Decree Holder and the Judgment Debtor thereafter fails to execute the
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sale deed within 3 months from the date of compliance, then only the
remedy to seek refund of entire amount is available to the decree
holder. Keeping this interpretation in mind of the decree, this
Commission had given time to the Decree Holder to provide the proof of
deposit of balance amount, stamp duty and registration charges but no
such proof has been filed. Apparently, first part of the decree has not
been complied with by the decree holder itself. Now, vide the impugned
order, the State Commission has failed to take this fact into
consideration and had treated the decree as if the decree holder had an
option to seek refund or to seek possession by making the balance
payment. It is, therefore, clear that impugned order affects the
valuable rights of the Judgment Debtor and gives an undue advantage
to the Decree Holder. It is also clear that the order of State Commission
is illegal since it has not interpreted its own decree correctly. Since
rights of the Judgment Debtor i.e. the Appellant are affected vide the
impugned order, it is very much appealable. It is also not in dispute
that while filing the execution application, the Decree Holder has
invoked the jurisdiction of the State Commission under section 27 and
the State Commission has passed the impugned order exercising its
jurisdiction under section 27 of the Act and since it is an order on the
question of law and facts, it is appellable under section 27-A. Same
thing has also been held by Three Members Bench of this Commission
in Shrikant Gopalrao Prabhune (supra). A reference has been made to
the Bench which is as under:
“While hearing arguments in F.A. No. 493 of 2011 and R.P. No. 90
of 2011, Bench No. 1 observed as under:
“We feel that there is divergence of opinion on the question as to
whether against an order made by the State Commission (interim or
final) under Section 25 of the Consumer Protection Act, 1986 and an
order other than a final order, under Section 27, an Appeal under
Section 21(1)(ii) or a Revision Petition under Section 21(b) or none
of the either would be maintainable before this Commission. In
several orders, this Commission has taken the view that against such
orders an Appeal under Section 27A of the Act and not a Revision
Petition under Section 21(b) of the Act would be maintainable. Under
the circumstances, it would be appropriate that the said issue is
resolved by a Larger Bench”.
7. The reference is answered by this Commission in the following
terms:
“9. For the reasons stated hereinabove we answer the reference in
the following terms:
(i) no appeal before this Commission is maintainable against an
order whether interim or final passed by the State Commission
under Section 25 of the Act. However, such an order can be
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challenged before this Commission by way of a Revision

Petition under Section 21(b) of the Act;
(ii) an appeal under Section 27A of the Act is maintainable before
this Commission against an original order passed by the State
Commission in exercise of its jurisdiction under Section 27 of
the Act irrespective of whether it be a final order, intermediate
order or interlocutory order;
(iii) no second Appeal in relation to an order passed by a District
Forum under Section 27 of the Act is maintainable;
(iv) an order passed by a State Commission, in exercise of its
appellate jurisdiction under Section 27A of the Act, can be
challenged only by way of a Revision Petition under Section 21
(b) of the Act, before this Commission, irrespective of whether
it is a final, intermediate or interlocutory order;
(v) an appeal under Section 19 read with Section 21(a)(ii) is
maintainable before this Commission against an order passed
by the State Commission, in exercise of its jurisdiction under
Section 17(1)(a)(i) of Act, irrespective of whether it is a final,
intermediate or interlocutory order. No Revision Petition against
such an order is maintainable;
(vi) no appeal is maintainable against an order passed by the
State Commission, in exercise of its appellate or revisional
jurisdiction. However, such an order can be challenged before
this Commission, by way of a Revision Petition under Section
21(b) of the Act.”
(emphasis mine)
8. From the perusal of the orders in Subrata Roy (supra) and Ansal
Lotus (supra), it is apparent that facts in these cases were entirely
different and it was on those facts and circumstances that this
Commission has held in those cases that Appeal under Section 27-A
was not appealable. Although the facts are not clearly mentioned in
these cases but on bare reading of the facts mentioned therein, it
appears that Non Bailable Warrants against the person had been issued
to secure its attendance.
9. In view of the above, it is apparent that arguments of the
respondent/decree holder that Appeal is not maintainable has no merit.
The impugned order is apparently an illegal order and same is set
aside.
10. The amount deposited pursuant to the order dated 03.10.2018
along with interest accrued thereon shall be released to the appellant.
———
†
New Delhi Bench
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‡
(Against the Order dated 31/07/2018 in Complaint No. 136/2011 of the State Commission
Karnataka)

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