State Consumer Disputes Redressal Commission
M.Bharat Kumar S/O.M.Ravilabbipet ... vs Creative Health Links Pvt. Ltd., ... on 14 August, 2012
BEFORE THE A BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD. FA.No.135/2012 against E.A.No.22/11 in C C.No.701/2004 District Forum-II, Hyderabad. Between M.Bharat Kumar S/o.M.Ravi Aged about 40 years, Indian, Occ:Educated unemployee Presently residing at 3C6, KGB Dunia, Municipal Employees Colony Near Gupta Kalyan Mandapam Labbipet Post, Vijayawada 520 010 ..Appellant/ Petitioner/ Complainant And 1.
Creative Health Links Pvt.
Ltd., Rep. by its Managing Director Mr.Raja C. Ogirala No.1, Nagarjunanagar, Hyderabad-500 073.
2. Mr.Raja C.Ogirala S/o.Venkatachalam 653, 9F, Pasco Fronters Lacosta CA 92009, USA.
3. Smt.Rama Devi Kumar W/o.P.C.Kumar Bunglow No.316, South Lalaguda, Behind Rly Office, Near RRB Secunderabad. Respondents/ O.Ps.
Counsel for the Appellant : M/s.V.Gourisankara Rao Counsel for the Respondents : Notice of R1 and R2 returned unserved and counsel for appellant restricted his claim only against R3 as per order dt.07/6/12 M/s.K.Bala Krishna-R3 QUORUM: THE HONBLE SRI JUSTICE D.APPA RAO, PRESIDENT, AND SMT.M.SHREESHA, HONBLE MEMBER, TUESDAY, THE FOURTEENTH DAY OF AUGUST, TWO THOUSAND TWELVE Order (Per Smt.M.Shreesha, Honble Member) *** Aggrieved by the order in E.A.No.22/2011 in C.C.No.701/2004 on the file of District Forum-II, Hyderabad, the complainant preferred this appeal.
The brief facts as set out in the complaint are that the complainant filed C.D.N0.701/2004 before the District Forum and it allowed the complaint by order dated 29-4-2005 directing opposite parties 1 to 3 to refund an amount of Rs.2,13,150/- with interest at 12% p.a. from 04-12-2004 till the date of payment together with costs of Rs.20,000/- and costs of Rs.1,000/-.
Aggrieved by which respondent/O.P.3 preferred an appeal along with condone delay petition in FA.IA.No.1133/2006 & FA (SR) 3398/2006 before this Commission and this Commission dismissed the same and thereafter R3 preferred a Revision Petition No.35/2007 before the Honble National Commission Delhi which was also dismissed.
As the orders in C.D.No.701/2004 are not complied with, the complainant filed E.A.No.22/2011 to punish the respondents for non implementation of the orders passed in C.D. Notices sent to the respondents were not served on R1 and R2 and hence counsel for complainant stated that he was not pressing the claim against respondents 1 and 2 and requested to proceed against R3.
R3 appeared through counsel and contended that the E.A. is not maintainable and that the interest calculated in the I.A. is contrary to the order passed by the Forum. The learned counsel for R3 further stated that the amount of Rs.2,13,150/- is also not payable as the II Additional Chief Metropolitan Magistrate, Vijayawada while disposing of C.C.No.320/98 has categorically held that the 3rd respondent did not commit any offence and that R3 worked only as an employee and therefore not liable to pay any amount. He further stated that women cannot be punished or sent to prison relying on the provisions of CPC. and also relied on the decisions reported in
i) Jancy Joseph V. Union of India reported in I(1999) CPJ P 464
ii) Raymond Synthetics Ltd., v. Babulal Khemka (1993) I CPR P 518
iii) Ravikanth V. Mrs. Meena Bhatnagar reported in I (1996) CPJ P 260.
iv) Telecom District Officer v. Sokha Bhowmick I (2005) CPJ 601 ( West Bengal)
v) III (2004) CPJ 1= 2004 (1) CPR 596 (Tamilnadu) and (III (2007) CPJ 293 & 2007 (3) CLT 525 (NC) and prayed for dismissal of the execution petition.
Based on the pleadings and material put forward, the District Forum held that the complainant obtained order by playing fraud and therefore the orders against R3 are non-est in view of the decision of the Supreme Court in (2007) 4 Supreme Court P 221 and also relying on the decision of Madras High Court dismissed the E.A. against R3.
Aggrieved by the said order, the complainant preferred this appeal.
It is the case of the appellant/complainant that CC No.701/2004 filed by the complainant was allowed by the District Forum on 20-4-2005 directing opposite parties 1 to 3 jointly and severally to refund Rs.2,13,150/- with interest at 12% p.a. from 04-12-2003 with compensation of Rs.20,000/- and costs. Aggrieved by the said order, opposite party no.3 preferred appeal FAIA No.1133/2006 in FASR No.3398/2006, which was dismissed by this Commission at the S.R. stage on 19-10-2006 on account of 348 days delay. Aggrieved by the order of this Commission, OP No.3 preferred R.P.35/2007 before the National Commission which was also dismissed on 11-1-2011 confirming the order of the State Commission.
As the opposite parties failed to comply with the order of the District Forum, the complainant filed EA 22/2011 U/s.27 of the Consumer Protection Act, 1986 and did not press the case against opposite parties 1 and 2 and proceeded only against opposite party no.3. The District Forum dismissed the EA 22/2011 observing that a woman can be arrested and imprisoned U/s.56 and 58 of CPC.
The learned counsel for J.Dr./opposite party No.3 filed written arguments and also contended before this Commission that O.P.3 is an employee an also a woman and cannot be punished or sent to prison and that O.P.3 is not a Director of the company and cannot be made liable to pay any amounts and relied on the decision in RAVIKANTH v. MRS.MEENA BHATNAGAR reported in I (1996) CPJ 260. In this case, the lifting of corporate veil was discussed at length but the facts in the instant case are different as the order of the District Forum has become final and opposite party No.3 did not file an appeal within time and she is not a Director and therefore her liability as a Director cannot be a matter of discussion in the instant case. Even if she is only an employee, as the order has become final and she did not choose to take the necessary steps, as per the provisions of Consumer Protection Act, 1986 she has to comply the order of the District Forum.
With respect to the other contention of O.P.3 counsel that the calculation adopted is not arithmetically correct, we once again reiterate, that this calculation cannot be raised at this belated juncture as the order has become final and as also we do not have powers of review. He further relied on the judgement of the Kerala High Court reported in I (1999) CPJ 464 in JANCY JOSEPH v. UNION OF INDIA which is prior to amendment of the Consumer Protection Act, 1986. Section 27.3 of Consumer Protection Act, 1986 deals with the constitutional validity of the Section which was upheld by the Supreme Court in State of Karnataka v. Viswa Bharati House Building Co-operative Society reported in 2003 CTJ 85 SC (CP)= 2003(1) CPJ 1 SC We observe from the record that the order of the District Forum has become final as in R.P.No.35/2007 the National Commission confirmed the order of the District Forum. The District Forum being the execution court cannot go behind the original decree and has at this stage of execution gone into the details of CC 320/1998 on the file of Addl. Chief Metropolitan Magistrate, Vijayawada under Negotiable Instruments Act and held that the proceedings in the Criminal Case were not filed before the District Forum. It is pertinent to note that the proceedings of CPC are applicable only to a limited extent U/s.13(4) of Consumer Protection Act, 1986 and provisions of C.P.C. do not apply U/s.27 and Section 27 of Consumer Protection Act, 1986 reads as follows:
Penalties. (1) Where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person or complainant shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousands rupees but which may extend to ten thousand rupees, or with both:
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974), the District Forum or the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of the first class for the trial of offences under this Act, and on such conferment of powers, the District Forum or the State Commission or the National Commission, as the case may be, on whom the powers are so conferred, shall be deemed to be a Judicial Magistrate of the first class for the purpose of the Code of Criminal Procedure, 1973 (2 of 1974).
(3) All offences under this Act may be tried summarily by the District Forum or the State Commission or the National Commission, as the case may be.
As clearly laid down in the Consumer Protection Act, 1986 provisions of Section 200 of Cr.P.C. only apply for the procedure to be followed U/s.27 of Consumer Protection Act, 1986. No such procedure is contemplated under Section 200 of Cr.P.C. stating that woman cannot be arrested. Execution of the order under Section 27 cannot be equated with procedure of execution vis--vis civil cases. Section 27 deals with cases where parties do not comply with the orders of the District Forum. We are of the considered view that there is no logical reasoning or substantial grounds to equate the execution of decree in CPC with that of the non-compliance of an order under Consumer Protection Act, 1986. Both these provisions act in altogether different spheres and cannot be equated. Section 27.7 of Consumer Protection Act, 1986 lays that the Consumer Forum in exercise of its power under Sec.25 or Sec.27 cannot go behind the main order passed by the District Forum. It cannot modify the earlier order as held in the decision of ASHISH KUMAR BISWAS v. DELHI DEVELOPMENT AUTHORITY, 1996 (2) CPR 18. Keeping in view the aforementioned reasons, we are of the opinion that Section 56 and 58 of CPC and not applicable to the proceedings before Consumer Protection Act, 1986and therefore we allow this appeal setting aside the order of the District Forum in EA 22/2011 and the matter is remanded to the District Forum to restore the E.A. to its file and both parties shall appear before the District Forum on 03-9-2012 without insisting on fresh notice and the District Forum shall proceed in accordance with law.
Sd/-PRESIDENT.
Sd/-MEMBER.
JM Dt.14-8-2012