APPEARED AT THE TIME OF ARGUMENTS Mr. Rajesh Pathak, Advocate -1- For the Petitioners Mr. Sanjeet Trivedi, Advocate For the Respondents : Mr. Sanjay Gaikwad, Advocate with R-2 in person PRONOUNCED ON : 06 FEBRUARY th 2018 O R D E R PER DR. B.C. GUPTA, PRESIDING MEMBER This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 22.01.2010, passed by the Maharashtra State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) in First Appeal No. 1192/2009,

M/s JMJ Developers Private Limited & Ors. versus Rajendra Holkar

, vide which, the said Commission directed the petitioner No. 2 Sunil Lazaras Anthony, to appear before the District Forum in the execution proceedings against the petitioners and to apply for bail. The said order was passed by the State Commission in appeal against the order dated 25.09.2009, passed by the District Forum in execution proceedings before them, in which the said Forum issued non-bailable warrants against the petitioner No. 2/OP-2 Sunil Lazaras Anthony in his capacity as Director of OP-1 Company.

2. Briefly stated, the facts of the case are that the complainant Rajender Holkar, now deceased, alongwith his wife Mangala Rajender Holkar, entered into a Memo of Understanding with the petitioners/opposite parties (OPs) on 27.11.97 for the purchase of an apartment, bearing No. 56A, 1 Floor on payment of booking amount of 51,000/- under which, the possession was to be st delivered to them in June, 1999. An agreement of sale was also executed and registered between the parties on 26.03.1998. According to the complainants, they paid a sum of 3,92,000/- in total to the OPs. However, on failure of the OPs to deliver the property as per the terms and conditions of the agreement, the complainant filed consumer complaint No. PDF/1781/99 before the District Forum, Pune. The said complaint was decided by the District Forum vide order dated 26.03.2002, vide which, the OPs were directed to refund amount of 3,92,000/- alongwith interest @9% p.a. from 01.08.1998 till realisation, alongwith a cost of 500/- to the complainants. Being aggrieved against the order of the District Forum, the OPs filed an appeal before the State Commission, which was dismissed vide their order dated 07.1.2003. The revision petition filed before this Commission against the order of the State Commission was also dismissed on 21.08.2003. The execution proceedings were then filed before the Consumer Fora below. However, during the pendency of these proceedings, the matter went to the Honble High Court of Bombay by way of Criminal W.P. No. 789/2007 with Civil W.P. No. 3798/2007, filed by various persons. Vide order dated 26.10.2007, passed by the Honble High Court, Honble Justice J.A. Patil (Retd.) was appointed as Mediator to resolve all the disputes between the parties by the end of February 2008.

3. It is stated that the parties arrived at settlement before the Mediator on 17.01.2009, but later on, the mediation proceedings were stopped, as the OPs failed to pay the necessary amount as per the agreement within time and their plea for extension of the said time, was not agreed to by the complainants. The petitions pending before the Honble High Court were then disposed off, but the petitioner filed SLP No. 23542/2009 before the Honble Supreme Court, challenging the order passed by the Honble High Court in Civil Writ Petition No. 3798/2007. It is the case of the petitioners, that in the said SLP, a notice was issued to the respondents and an interim stay was granted till the Mediator took decision as regards settlement vide order dated 30.09.2009. In the meantime, the execution proceedings were undertaken before the District Forum and State Commission from time to time. As per order dated 25.09.2009, the District Forum observed that the main order dated 26.03.2002 passed by them had become final and conclusive. They, therefore, issued non-bailable warrants against the Director of the Petitioner No. 1.

4. Being aggrieved against the said order of the District Forum, the petitioner challenged the same by way of an appeal before the State Commission, which was decided on 22.01.2010 vide impugned order and the non-bailable warrants against the OP-2 were ordered to be kept in abeyance, but he was directed to appear before the District Forum and apply for bail in execution proceedings. Being aggrieved against the order of the State Commission, the petitioner has challenged the same by way of the present revision petition before this Commission.

5. During arguments before us, the learned counsel has referred to the order passed by the Honble Supreme Court on 30.09.2009, stating that in view of the stay order granted by the Honble Supreme Court and the order dated 26.10.2007, passed by the Honble High Court of Bombay appointing a Mediator, the orders passed by the consumer fora could not be executed.

6. The learned counsel for the respondents/complainants stated that vide impugned order, the State Commission had simply directed the petitioner no. 2 to appear before the District Forum. There was no prejudice caused against the petitioners therefore, and hence, there was no need to make any modification in the impugned order. The learned counsel further stated that they had filed IA No. 5302/2017, requesting for withdrawal of amount of 5 lakh plus 20,000/- in their favour, which should be allowed.

7. The learned counsel for the petitioners stated that they had no objection to the withdrawal of the amount, provided the complainant withdrew all proceedings against them.

8. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

9. Vide impugned order, the State Commission directed that non-bailable warrants issued against the petitioner No. 2, should be kept in abeyance and that he should present himself before the District Forum, where he could make an application for bail. However, the case of the petitioners is that since the stay order granted by the Honble Supreme Court was in operation, the execution proceedings could not be carried out. From the material available on record, it is made out that the order of the Honble Supreme Court was passed on 30.09.2009, in which it was stated that there shall be interim stay till the Mediator takes a decision as regards settlement. However, a copy of the order recorded by the Mediator dated 22.01.2009 is on record, according to which, the mediation proceedings in respect of the respondents were stopped and it was stated that the respondents would be at liberty to resort to other remedies for the recovery of dues according to law. In the light of these facts, it is necessary that the latest position of the proceedings pending before the Honble Supreme Court or before the Honble High Court of Bombay, if any, should be ascertained before proceeding further in the execution proceedings. This revision petition is, therefore, disposed of with the directions to the District Forum to take further necessary action as per law, after ascertaining the latest position about the pendency of proceedings between the parties before the Honble Apex Court and the Honble High Court of Bombay. There shall be no order as to costs. ...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER