SC rules, developer can’t file appeal against execution orders by NCDRC

In a recent judgment, the Supreme Court observed that an appeal filed against the order passed in execution proceeding by the NCDRC is not maintainable. The immediate matter pertains to Ambience Infrastructure Private Limited and Ambience Island Apartment Owners. The case dates back to 2015, where the NCDRC directed the developers of Ambience Lagoon Apartments to refund 70% of the total maintenance money collected over 11 years to 345 flat owners for failing to offer services commensurate with the maintenance charged. This order was upheld by the Hon’ble Supreme Court as well. This order was covered by at here: Disappointed with poor maintenance by builder? Ambience Lagoon’s case provides a glimmer of hope

Background

The present appeals, filed before the Supreme Court, are from an order of the National Consumer Disputes Redressal Commission dated 3 November 2015. The order of the NCDRC is in execution proceedings arising out of an original judgment and order dated 19 March 2014 in Consumer Case No 93 of 2004. By its order dated 19 March 2014, the NCDRC directed the appellants to pay 70% of the maintenance
charges from November 2002 with interest at 9 % per annum within 90 days or else pay at an enhanced rate of 12 % per annum.

The grievance of the appellants is that since the complaint before the NCDRC pertained only to the deficiency in service as regards the provision of lifts, the order of the NCDRC directing the payment of seventy percent of the total maintenance amount (as opposed to seventy percent of the maintenance charges collected for lifts) is contrary to the tenor of the complaint and the original order.

Arguments of the respondents

A preliminary objection has been raised in the counter affidavit to the maintainability of the appeals.

Section 23 of the Consumer Protection Act 1986 provides as follows:

“23 Appeal.- Any person, aggrieved by an order made by the National Commission in exercise of its powers conferred by subclause (i) of clause (a) section 21, may prefer an appeal against such order to the Supreme Court within a period of thirty days
from the date of the order:

Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that
there was sufficient cause for not filing it within that period:

Provided further that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person has deposited in prescribed manner fifty per cent of that amount or fifty thousand rupees, whichever is less.”

Court’s observations

In a recent judgment in Karnataka Housing Board vs K.A. Nagamani (2019) 6 SCC 424, this Court made a distinction between execution
proceedings and original proceedings and held that the former are separate and independent. In our view, having regard to Section 23 of the Consumer Protection Act 1986, an appeal will not lie to this court against an order which has been passed in the course of execution proceedings. The appeals are hence dismissed as not being maintainable.

Ms Kamini Jaiswal, learned counsel appearing on behalf of the respondents has submitted that the objections which were raised on behalf of the appellants in the course of the execution proceedings before the NCDRC were without any merit having regard to the fact that the same objections to the original order of the NCDRC were raised in the proceedings in review as well as in the civil appeal which was filed before and dismissed by this Court. Ms Jaiswal has submitted that since a review and the civil appeal against the original order have been dismissed, similar objections could not have been raised in the course of execution proceedings.

The order

We have upheld the preliminary objection and have concluded that the appeals filed against the impugned order are not maintainable under the provisions of Section 23 of the Consumer Protection Act 1986.

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