M. Shreesha ORDER
1. Aggrieved by the order of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai in Execution Application No. EA/17/99 dated 07.03.2018 Gaodevi Utkarsh Co-op. Housing Society (hereinafter referred to as "the Housing Society") preferred Appeal Execution No. 65 of 2018 and M/s. Chauhan Builders Housing Developers Pvt. Ltd. and its Directors/Promoters (hereinafter referred to as the "Developers") preferred Appeal Execution No. 66 of 2018. By the Impugned Order, the State Commission has sent the matter back to Bench No. 1 for further proceedings after giving a finding that the shop contemplated in the order is shop No. 5.
2. The facts in brief are that the Complainant Mrs. Sudesh Darshan Aggarwal purchased a shop bearing No. 468(A) situated at Plot No. 235, Gaondevi Utakarsh Mandal, Link Road, Pahadi Village, Goregaon (West), Mumbai on 29.04.1987. The said building including the said shop of the Complainant was re-developed by the Housing Society through the Developers. It was averred that on 29.11.2003, through the draw of lots, under the re-development agreement, the Complainant was allotted shop No. 5 and one Mrs. Kalawati Jain was allotted shop No. 6. It was stated that the Housing Society and the Developers were not handing over the possession of the shop to the Complainant since 2005 on one pretext or the other and hence the Complainant got issued a legal notice dated 15.03.2014 to them seeking possession of shop No. 5. In their reply to the legal notice, the Developers had admitted that shop No. 5 was to be handed over to the Complainant.
3. The Complainant filed a Complaint before the State Commission seeking directions to Opposite Parties No. 1 to 6 to hand over possession of the new shop i.e. Permanent Alternate Accommodation admeasuring about 225 sq.ft.; to pay 25,000/- per month from the year 2007 together with travel expenses, compensation and costs.
4. It is observed from the record that the Housing Society did not file their Written Version despite service of notice and was set ex-parte by the State Commission.
5. It is stated that on 05.01.2015, the Developers filed their Written Version admitting that shop No. 5 was allotted to the Complainant as per draw of lots. A brief perusal of the Written Version shows that in paragraph 11-d it is clearly stated that they had handed over all the Rehab components to the Society which unanimously decided to allot the commercial/residential components to their eligible members as per lottery system and the Complainant herein was duly allotted shop No. 5 and was put into possession. The same averment is again repeated in paragraphs 11 (paragraph number repeated again in the Written Version), 14, 15, 17 and 19. At the cost of repetition the Developers have reiterated that the Complainant was allotted shop No. 5 by lottery system.
6. It is also seen from the record that the Developers filed evidence by way of affidavit on 20.04.2016 and has categorically admitted that shop No. 5 was allotted to the Complainant.
7. In the substantive order dated 17.01.2017 the State Commission has allowed the Complaint directing the Housing Society (a) to deliver possession of the shop in the re-developed building, (b) pay 50,000/- towards compensation and 15,000/- towards costs.
8. It is submitted by the Learned Counsel for the Complainant that even as on 17.07.2017 the order of the State Commission was not complied with and, therefore, they were constrained to prefer an Execution Application. The State Commission vide its order dated 07.03.2018 in the said Execution Application observed as follows:-
"Considering submissions of advocates for both the sides, we find that, it is necessary to deal with the submission that this Commission has no power to review and hence this Commission now cannot say about the shop No. 5. We find that there is no dispute that this Commission has no power to review. However, we find that matter was send to us only because in operative order passed by this Bench in the said consumer complaint, there is no mention of shop number as shop No. 5. We have gone through the........