Bombay High Court
Anita W/O Rajkamal Bankar vs Branch Manager, Jaika Motors Ltd. ... on 13 March, 2023
Bench: Avinash G. Gharote
(1) 74wp5464.19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 5464 OF 2019
Anita Rajkamal Bankar__ Vs. __Branch Manager, Jaika Motors Ltd
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. P.R.Agrawal, Advocate for petitioner
Mr. M.R.Joharapurkar, Advocate for Respondent
CORAM : AVINASH G. GHAROTE, J.
DATE : 13/03/2023
1] Civil Application (W) No.1414/2022 is
by the respondent seeking to place additional
affidavit on record. Mr. Agrawal, learned counsel for
the petitioner has no objection, considering which
the application is allowed. The additional affidavit of
the respondent be taken on record.
2] Heard the learned counsel for the
parties.
3] The order of the District Forum dated
6.5.2010 directs the delivery of the vehicle within 30
days of the receipt of the order. It further directs
payment of damages at the rate of Rs.1500/- per day
from 4.8.2009 till the delivery of the vehicle to the
petitioner (pg.41).
(2) 74wp5464.19
4] On account of dismissal of the
application for condonation of delay filed by the
respondent, by the State Commission by the order
dated 8.8.2012 (pg.52), the order of the District
Forum attained finality. Before the State
Commission, a pursis was filed indicating deposit of
Rs.6,32,000/- as the amount of damages plus
compensation for mental agony and costs till that
date. (pg.51). Consequent to the dismissal of the
appeal on account of rejection of the application for
condonation of delay, which was not challenged any
further, the order of the District Forum attained
finality. The execution proceedings being Misc.
Application No.1/2013 was filed by the petitioner,
seeking to execute the order dated 6.5.2010 of the
District Forum, which was allowed by the order
dated 14.7.2015 (pg.64), whereby the respondent
was directed to comply with the order dated
6.5.2010 and the movable as well as the immovable
properties of the respondent were directed to be
attached by the Collector, Chandrapur.
5] In appeal before the State Commission
against this order dated 14.7.2015, by the impugned
judgment dated 20.2.2017, the appeal has been
allowed by setting aside the order dated 14.7.2015,
further holding that the petitioner/complainant was
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not entitled to claim anything more than
Rs.6,32,000/- which was received by him, in view of
the interim order dated 5.5.2011 in F.A No.
A/10/680 (pg.51) and further holding that the
petitioner/complainant can get back his vehicle in
question from the appellant.
6] The possession of the vehicle has been
delivered to the petitioner/complainant on
2.12.2021 in pursuance to the order of this Court. It
would therefore be axiomatic that the learned State
Commission could not have allowed the appeal by
holding that the claim of the petitioner/complainant
was satisfied. The finding rendered that the
respondent was willing to hand over the vehicle to
the petitioner in view of the letter dated 12.10.2012
(pg.91), which called upon the petitioner/
complainant to take possession is clearly in
ignorance of the reply dated 8.12.2012 by the
petitioner (pg.92) in which it has been categorically
stated that the respondent had not given the custody
of the vehicle in repaired and working condition.
There is nothing on record to indicate that the offer
of delivery of the vehicle to the petitioner by the
respondent at any time indicated that the vehicle
was in working condition, as no material to that
effect has been placed on record. The photographs
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placed on record on the other hand indicate that the
vehicle was not in a condition to be driven, as it did
not even have the driver's seat. The State
Commission therefore was not justified in rendering
a finding in para 21 of the impugned order that the
appellate was willing to comply with the order dated
6.5.2010 in returning the vehicle. The return of the
vehicle as directed by the order dated 6.5.2010
would obviously indicate that it has to be in a
working condition.
7] As indicated above, in absence of any
material on record to demonstrate that the offer of
return of the vehicle was of the vehicle in a working
condition, the finding rendered in para 21 is clearly
not justified.
8] That apart, the finding that the petitioner
was not entitled to claim anything more than the
amount besides Rs. 6,32,000/- in view of the interim
order dated 5.5.2011 (pg.51) is also not justified, as
admittedly even presuming that there was an offer
to return the vehicle, that offer itself is dated
12.10.2012, in respect of which the position has
already been stated earlier, and the vehicle was in
fact returned on 2.12.2021, thereby depriving the
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petitioner of its use since its detention by the
respondent from 4.8.2009.
9] In that view of the matter, the judgment
dated 20.2.2017 cannot be sustained and the same
is hereby quashed and set aside. The matter is
remanded back to the appellate Court to rehear the
parties and decide the appeal.
10] Since the vehicle has been delivered in
running condition to the petitioner on 2.12.2021
under the orders of this Court, the respondent shall
deposit with the Appellate Court the amount of
damages from 6.5.2011 till 1.12.2021 at the rate
directed by the District Forum by the order dated
6.5.2010, within a period of four weeks.
11] Since the appeal is against the order in
execution, the appellate Court is directed to decide
the appeal within the period of three months from
the date of presentation of the copy of this order,
which shall be done on or before 31 March, 2023.
12] Though a stay is being sought to the
direction to deposit the amount, I am not inclined to
grant the stay, considering the huge time consumed
by the respondent in delivering the vehicle in a
running condition to the petitioner in spite of the
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order dated 6.5.2010 passed by the learned District
Forum. The request is therefore, rejected.
13] The petition is allowed in above terms.
No costs.
JUDGE
Rvjalit
Digitally sign byRAJESH
VASANTRAO JALIT
Location:
Signing Date:14.03.2023 17:39
