INDEX - Affidavit in Opposition to the application under Section 72 of the Consumer Protection Act’ 2019, by the Judgment Debtors

 

Before the Hon’ble District Consumer Disputes Redressal Commission, South 24 Parganas

Amantran Bazar, 3^rd Floor, Baruipur,

Kolkata – 700144

 

DC/304/EA/36/2025

{Arising out of DC/304/CC/131/2011}

 

                                                          In the matter of;

Smt. Alaka Roy,             ______Complainant / Decree Holder

 

-      Versus –

 

M/s. Om Tara Maa Construction, & Others,

_______Opposite Parties / Judgment Debtors

 

Affidavit in Opposition to the application under Section 72 of the Consumer Protection Act’ 2019, by the Judgment Debtors;

 

INDEX

 

Sl. No.	Particulars’	Annexure	Page
1	Affidavit in Opposition to the application under Section 72 of the Consumer Protection Act’ 2019, by the Judgment Debtors;
2	Photostat copy of the said Notice given under Section 223(1) BNSS 2023;	“A”
3	Photostat copy of the order dated 12.02.2020, passed in the appeal being A/594/2019;	“B”
4	Photostat copy of the Order dated 19/02/2020, in the Execution Application No. EA/183/2013, arising out of Complaint Case No. CC/11/131;	“C”
5	Photostat copy of the notice with the said Writ Petition being WPA No. 3971 of 2025 with all annexure and the Order dated 25-03-2025;	“D”
6	Photostat copy of the Order dated 19-05-2025, passed in WPA No. 3971 of 2025	“E”

 

 

LIST OF DATES

 

Date	Particulars
29.06.2012	The Hon’ble District Consumer Disputes Redressal Forum, South 24 Parganas, passed the final order in Consumer Complaint No. CC/131/2011.
25.04.2013	The Hon’ble State Consumer Disputes Redressal Commission, West Bengal, disposed of First Appeal No. 448 of 2012, modifying the order dated 29.06.2012.
2013	The Decree Holder initiated execution proceedings being EA/183/2013 under Sections 25 & 27 of the Consumer Protection Act, 1986.
2013–2019	The Judgment Debtors complied with the modified order and made part payments; only issuance of Completion Certificate remained pending due to statutory reasons.
22.07.2019	The Ld. District Forum passed Order No. 66 in EA/183/2013, issuing coercive directions against the Judgment Debtors.
08.08.2019	The Judgment Debtors preferred First Appeal No. A/594/2019 before the Hon’ble State Commission challenging Order No. 66 dated 22.07.2019.
12.02.2020	The Hon’ble State Commission allowed A/594/2019, set aside the coercive order, held that non-issuance of Completion Certificate was not attributable to the Judgment Debtors, and restrained the District Forum from passing any harsh order till disposal of C.O. No. 4034 of 2015 pending before the Hon’ble High Court at Calcutta.
19.02.2020	The Ld. District Commission, in EA/183/2013, recorded the order dated 12.02.2020 and fixed dates awaiting disposal of the civil revision pending before the Hon’ble High Court.
2015 (pending)	C.O. No. 4034 of 2015 remained pending before the Hon’ble High Court at Calcutta concerning the Completion Certificate/mutation issues.
Feb 2025	The Decree Holder filed WPA No. 3971 of 2025 before the Hon’ble High Court at Calcutta, despite pendency of the civil revision.
25.03.2025	WPA No. 3971 of 2025 was heard by the Hon’ble Justice Amrita Sinha and interim observations were made.
19.05.2025	The Hon’ble High Court observed that C.O. No. 4034 of 2015 was still pending and de-listed the writ petition with liberty to mention after disposal of the civil revision.
Dec 2025	The Decree Holder initiated the present execution proceeding DC/304/EA/36/2025 by filing an application under Section 72 of the Consumer Protection Act, 2019.
22.12.2025	The Judgment Debtors appeared before the Hon’ble Commission pursuant to notice under Section 223(1) BNSS, 2023, and filed affidavit opposing invocation of Section 72 CPA, 2019.

 

 

 

 

 

 

 

 

 

 

 

 

SYNOPSIS

 

The present execution proceeding has been initiated by the Decree Holder by invoking the penal provisions of Section 72 of the Consumer Protection Act, 2019, alleging non-compliance of the final order dated 29.06.2012 passed in Consumer Complaint No. CC/131/2011. The said order, however, stood materially modified by the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, in First Appeal No. 448 of 2012, and the Judgment Debtors have substantially complied with the modified directions, save and except issuance of the Completion Certificate by the Kolkata Municipal Corporation, which is beyond their direct control.

 

Earlier execution proceedings being EA/183/2013 were initiated under the Consumer Protection Act, 1986. During the said execution, coercive steps were taken without affording due opportunity of hearing, which were set aside by the Hon’ble State Commission by judgment dated 12.02.2020 passed in First Appeal No. A/594/2019.

 

The Hon’ble State Commission categorically held that non-issuance of the Completion Certificate and mutation was not attributable to the Judgment Debtors, that substantial compliance of the modified order had already been effected, and expressly restrained the District Forum from passing any harsh or coercive order till disposal of C.O. No. 4034 of 2015 pending before the Hon’ble High Court at Calcutta.

 

Pursuant thereto, the Ld. District Commission recorded the said restraint order on 19.02.2020 and kept the execution proceeding in abeyance awaiting disposal of the civil revision. The said civil revision, C.O. No. 4034 of 2015, continues to remain pending before the Hon’ble High Court. Despite full knowledge of the pendency of the civil revision and the subsisting restraint order, the Decree Holder has again approached this Hon’ble Commission by filing the present application under Section 72 of the Consumer Protection Act, 2019, suppressing material facts and seeking to invoke penal consequences.

 

The Decree Holder further instituted WPA No. 3971 of 2025 before the Hon’ble High Court at Calcutta, which was de-listed by the Hon’ble Court on 19.05.2025 upon observing that the civil revision was still pending. Thus, the judicial position remains unchanged, and the restraint against coercive action continues to operate.

 

Section 72 of the Consumer Protection Act, 2019, being a penal provision, can be invoked only in cases of willful and deliberate disobedience of a subsisting executable order. In the absence of any willful default, and in view of the binding findings of the Hon’ble State Commission and the pendency of proceedings before the Hon’ble High Court, the present execution application is not maintainable in law and constitutes an abuse of process. The Judgment Debtors, therefore, pray for dismissal of the Section 72 application and dropping of the penal proceedings.