State Consumer Disputes Redressal Commission
S.C. Galhotra S/O Harbans Lal vs The Mohali Bank And Others Employees ... on 20 April, 2010
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No. 1459 of 2009
Date of institution : 14.10.2009
Date of Decision : 20.4.2010
1. S.C. Galhotra s/o Harbans Lal
2. Smt. Satya Galhotra w/o S.C. Galhotra, Both residents of H. No. 1166,
Progressive Society, Sector 50-B, Chandigarh.
....Appellants.
Versus
1. The Mohali Bank and others Employees Co-op. U.S.E.T. & C Society Ltd.
Mohali (Regd.) Office 406, Phase-1, Mohali through its Honorary Secretary Sh.
Kulvir Singh son of S. Jagat Singh Office 406, Phase-1, Mohali.
2. Smt. R.P. Karu wife of Sh. Kulvir Singh, President, The Mohali Bank and
others Employees Co-op. U.S.E.T. & C Society Ltd. Mohali (Regd.) Office 406,
Phase-1 Mohali.
3. Sh. Hari Om Inspector/Administrator, The Mohali Bank and others
Employees Co-op. U.S.E.T. & C Society Ltd. Mohali (Regd.) Office of Asstt.
Registrar, Co-op. Society, Verka Milk Plant, Mohali
...Respondents.
First Appeal against the order dated 24.8.2009 of
the District Consumer Disputes Redressal Forum,
SAS Nagar(Mohali).
Before:-
Lt. Col. Darshan Singh (Retd.), Presiding Member.
Shri Piare Lal Garg, Member.
Present:-
For the appellants : Sh. Munish Gupta, Advocate
For respondents No. 1 & 2 : Sh. B.S. Sehra, Advocate
For respondent No. 3 : Sh. Om Parkash, Ex.-Inspector &
Sh. Baldev Singh, Present Inspector
PIARE LAL GARG, MEMBER:
This order will dispose of ten appeals i.e. First Appeal No. 1459 of 2009(S.C. Galhotra Vs. The Mohali Bank and others Employees Co-op. U.S.E.T. & C Society Ltd.), First Appeal No. 1460 of 2009(Trilok Singh Vs. The Mohali Bank and others Employees Co-op. U.S.E.T. & C Society Ltd.), First Appeal No. 1461 of 2009(Rinku Garg Vs. The Mohali Bank and others Employees Co-op. U.S.E.T. & C Society Ltd.), First First Appeal No. 1459 of 2009 2 Appeal No. 1462 of 2009(Gurcharan Dass & Anr. Vs. The Mohali Bank and others Employees Co-op. U.S.E.T. & C Society Ltd.), First Appeal No. 1463 of 2009(Veena Garg Vs. The Mohali Bank and others Employees Co-op. U.S.E.T. & C Society Ltd.), First Appeal No. 1464 of 2009(Ashok Mehta Vs. The Mohali Bank and others Employees Co-op. U.S.E.T. & C Society Ltd.), First Appeal No. 1465 of 2009(Sushma Goyal Vs. The Mohali Bank and others Employees Co-op. U.S.E.T. & C Society Ltd.), First Appeal No. 1466 of 2009(Santokh Singh Chawala Vs. The Mohali Bank and others Employees Co-op. U.S.E.T. & C Society Ltd.), First Appeal No. 1467 of 2009(Santokh Singh Chawala Vs. The Mohali Bank and others Employees Co-op. U.S.E.T. & C Society Ltd.), and First Appeal No. 1468 of 2009(Devender Kumar Verma & Anr. Vs. The Mohali Bank and others Employees Co-op. U.S.E.T. & C Society Ltd.) as the same are preferred against the identical impugned orders dated 24.8.2009 by which the learned District Consumer Disputes Redressal Forum, SAS Nagar(Mohali)(in short 'the District Forum') has dismissed the execution applications of the appellants. The appeals are being disposed of with a single order as the dispute in all the appeals is similar and the questions of law involved in all the appeals are also similar and common. The facts are taken from 'First Appeal No. 1459 of 2009' and the parties would be referred by their status in this appeal.
2. The above appellants have filed the complaint before the District Consumer Disputes Redressal Forum, Ropar(in short, 'the District Forum, Ropar') and the complaint of the appellants was accepted by the District Forum, Ropar vide its order dated 24.6.2008 and it was directed by the District Forum, Ropar to the respondents to make the payment of the matured amount of the FDRs to the appellant as mentioned in para No. 1 of the complaint alongwith upto date interest at the rate stipulated in each FDR till realization of the amount. Cost of the litigation was assessed at First Appeal No. 1459 of 2009 3 RS. 1,000/-, which was to be paid by the respondents to the appellant within 30 days from the receipt of certified copy of the order.
3. The respondents failed to comply with the order of the District Forum dated 24.6.2008 and decree holders/appellants filed the execution applications under Section 27 of the Consumer Protection Act, 1986 before the District Forum, Ropar which were lateron transferred to District Forum, SAS Nagar(Mohali). All the appeals are identical.
4. During the pendency of the execution applications before the District Forum, Mohali, an order bearing No. 1194-99 dated 21.5.2009 was passed by the Registrar, Cooperative Societies Act, 1961, according to which J.D. No. 1(respondent No.1) was brought under winding up(liquidation) and Mr. Hari Om, Inspector, Cooperative Societies, Mohali was appointed as its Liquidator. Counsel for J.D. No. 2 represented that in view of the provision contained in Section 82(2) of the Punjab Cooperative Societies Act, the present proceedings cannot proceed with without the leave of the Registrar, Cooperative Societies, Punjab and prayed for the dismissal of the execution application.
5. Learned District Forum after hearing both the parties, representatives, liquidator and learned counsel for the parties, dismissed the execution application.
6 Hence, the appeal.
7. We have gone through the pleadings of the parties, perused the record of the learned District Forum, heard the arguments of the learned counsel for the parties, Sh. Om Parkash, Ex.-Inspector and Sh. Baldev Singh, present Inspector of the respondent No.3.
8. The only question of law is involved in this appeal is that whether the execution application is maintainable without the leave of the Registrar, Cooperative Societies, Punjab when respondent No. 1 has been First Appeal No. 1459 of 2009 4 brought under winding up(liquidation) and Liquidator has been appointed of respondent No. 1?
9. There is no dispute between the parties that the appellants had deposited Rs. 2 lacs with respondent No. 1 by way of FDR on 11.2.2004 @ 12.5% and respondent No. 1 had not paid the maturity amount to the appellants despite their repeated requests. The appellants filed a complaint No. 38 on 3.3.2008 before the District Forum, Ropar, which was decided on 24.6.2008 in favour of the appellants. No appeal is pending against the abovesaid order and the same has become final between the parties.
10. The respondents had not complied with the order of the District Forum, Ropar and the appellants filed an execution application before the District Forum but during the proceedings of the execution an order dated 11.5.2004 was passed by the Registrar, Cooperative Societies, Punjab under Section 57(2) of the Punjab Cooperative Societies Act, 1961, according to which respondent No.1 has been brought under winding up(liquidation) and Mr. Hari Om, Inspector, Cooperative Societies, Mohali was appointed as its Liquidator. The execution application of the appellants was dismissed by the District Forum, Mohali on the ground that as per Section 82(2) of the Punjab Cooperative Societies Act, 1961, execution application is not maintainable. Section 82(2) of the Punjab Cooperative Societies Act, 1961, is reproduced as under:-
"82. Bar of Jurisdiction of Court:
(1) xx xx xx xx
(2) While a co-operative society is being wound up no suit
or other legal proceeding relating to the business of such society shall be proceeded with or instituted against the liquidator as such or against the society or any member First Appeal No. 1459 of 2009 5 thereof, except by leave of the Registrar and subject to such terms as he may impose."
11. Learned counsel for the appellant argued that the Consumer Protection Act is a rational approach and not a technical approach and as per Section 3 of the Consumer Protection Act, 1986(in short, 'the C.P. Act'), the provisions of the C.P. Act, 1986 are in addition to and not in derogation of provisions of any other law for the time being in-force. As such, the provisions of this Act, gives the consumer an additional remedy besides those, that may be available under other existing laws and as such, the execution application is maintainable under the law. The District Forum has failed to appreciate the legal position. The impugned order is not legal, justified and deserves to be set-aside. He further argued that the object of the Act is to afford maximum protection to the consumers and there is no bar imposed by Section 82(2) of the Punjab Cooperative Societies Act on maintaining of a complaint filed under the provisions of the Consumer Protection Act as held by the Hon'ble State Consumer Disputes Redressal Commission, Rajasthan, Jaipur in its judgment reported as "Smt. Sarvjeet Kinra v. Modern Denim Ltd.", 2008 CTJ 1110 that:-
"Deposit-Sick undertaking-Consumer Protection Act, 1986- Deficiency in service-Section 2(1)(g)-Section 2(1)(o)-Money deposited with the respondent companies at a specified rate of interest for a specified period - Maturity amount of the deposit not paid-Companies become sick units and registered as such with BIFR-A scheme for repayment of the deposit framed by the Company Law Board(CLB) District Forum dismissed the complaints not maintainable under Section 22(1) of the Industrial Companies (Special Provisions) Act, 1985-Appeals-Whether the money placed by the complainants First Appeal No. 1459 of 2009 6 with the companies amounted to a deposit or loan?-Further, whether the proceedings for recovery of deposit constituted a suit for the recovery of money" attracting Section 22 of SICA, 1985?-Held that a deposit made in a company is not a loan but a sum held in trust by it till the time of maturity-Any claim made for return of that deposit cannot be termed as a suit for recovery of money due and, therefore, the provision of Section 22 of SICA not to save the company from making payment to the depositor-District Forum's impugned decision not justified and as such quashed and set aside-Respondents made it known that they would pay the principal amount of fixed deposit within three months-However, interest thereon to be paid at the contracted rate upto the date of original maturity and thereafter @ 14% simple interest as spelled out in the Scheme approved by the Company Law Board-Appeals allowed."
12. In the present dispute, the appellants had already filed a complaint No. 38 on 3.3.2008 before the District Forum, Ropar which was decided by the District Forum in favour of the appellants vide its order dated 24.6.2008 and the same has become final as no appeal is pending against the abovesaid order. The respondents had not complied with the order of the District Forum, Ropar and as such, the execution application was filed by the appellants before the District Forum for the execution of the above order. During the proceedings of the execution application only to avoid the payment of maturity amount of the appellants, the respondents with the connivance of Registrar of Cooperative Societies, Punjab, who is their Officer have obtained the orders of appointment of Liquidator during the pendency of the execution proceedings and as such, the execution proceedings are liable to be continued and not liable to be stayed as per First Appeal No. 1459 of 2009 7 the law held by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in its judgment reported as "Manohar Lal Bhandari and another versus Sun Earth Ceramics Ltd.", 2009 CTJ 68 (CP)(NCDRC) that:-
"Deposit-Sick undertaking-Consumer Protection Act, 1986- Sick Industrial Companies (Special Provisions) Act, 1985- Deposited amount with interest on maturity of the deposit not repaid-Complaint contested on the ground that the respondent company became a sick undertaking and it was registered so with the BIFR under Section 15 of the 1985 Act-Complaint dismissed by the District Forum and so also the appeal by the State Commission taking the view that the petitioners could seek their remedy before an appropriate authority-Revision petition-Act of 1985 does not provide for any permission to continue with a pending complaint filed under the Consumer Protection Act nor does it place any restrictions on the Consumer Forums from dealing with pending proceedings under the said Act-Orders passed by the Forums below set aside-Complaint accepted-Respondent company directed to pay the deposit minus the amount already paid with the agreed rate of interest alongwith cost."
13. So from the above judgment of the Hon'ble National Commission, it is very much clear that even the complaint is maintainable. But in the present case, the complaint had already been decided by the District Forum and the order of the District Forum has become final.
14. On the other hand, learned counsel for the respondents argued that the order of the District Forum is justified as the provisions of Section 82(2) of the Cooperative Societies Act, 1961, bars the jurisdiction of the Court. The appellants have not obtained the leave from the Registrar First Appeal No. 1459 of 2009 8 to continue the execution proceedings before the District Forum as such, the execution application of the appellants is dismissed by the District Forum, Mohali correctly as law laid down by our own Hon'ble Punjab & Haryana High Court in case titled as "State Cooperative Spinning Mills Federation Ltd. V/s Shakti Traders Cotton and Oil Merchants and others", 2007(1) RCR (Civil) page 825 that:-
"In the present case Civil Court passed decree against the Cooperative Society which went under liquidation and the official liquidator was appointed. The petition for execution of the decree was filed by the D.Hs. It was held that it was not open for the executing Court to execute decree in view of the provisions of Sections 58, 59 and 82(2) of the Punjab Cooperative Societies Act. The D.H. was required to file their claim with the liquidator on the basis of decree passed in its favour and it was for the liquidator to liquidate the liability of the society as per the priority fixed. It was also held that the decree holder will be treated as secure creditors for the purpose of discharge of his claim."
15. We have gone through the judgment cited by counsel for the respondent but the facts of the above judgment are not applicable in the present appeal.
16. The District Forum has dismissed the execution application on the ground that the applicants/decree holders have not produced any leave/permission of the Registrar to proceed with the execution application, and as such, the execution proceedings cannot proceed further.
17. We have perused Section 82(2) of the Punjab Cooperative Societies Act, 1961 and as per this Section only the legal proceedings relating to the business of such Society can only be proceeded with the First Appeal No. 1459 of 2009 9 leave of the Registrar if the Cooperative Society is being wound up. The dispute relates to the touching of the business of the Cooperative Society are mentioned/given in Section 55(2) of the Cooperative Society Act, 1961, which is reproduced as under:-
"55(2) For the purpose of sub-section (1), the following be deemed to the disputes touching the constitution, management or the business of co-operative society, namely:-
(a) a claim by the society for any debt or demand due to it from a member or the nominee, heirs or legal representatives of a deceased member, whether such debt or demand be admitted or not;
(b) a claim by a society against the principal debtor where the society has recovered from the surety any amount in respect of any debut or demand due to it from the principal debtor as a result of the default of the principal debtor, whether such debt or demand is admitted or not;
(c) any dispute arising in connection with the election of any Officer of the society;
18. So from the perusal of Section 55(2) of the Cooperative Society Act, the dispute of the appellants is not touching the business of respondent No. 1 i.e. Society and as such, there is no need of leave from the Registrar is required to proceed with the execution application.
19. The Consumer Protection Act was enacted in India only to protect the interest of the consumers, which is in addition to the other provisions available under the other enacements for reressal of disputes in addition to the remedies available under the Act. We have to consider as regard the additional jurisdiction conferred on the Forums and not their exclusion.
First Appeal No. 1459 of 2009 10
20. It was also held by the Hon'ble Apex Court in case titled as "Secretary, Thirumurugan Co-operative Agricutlural Credit Society Versus M. Lalitha (Dead) through LRs and others", 2004(1) CLT 456 in which it was held as under:-
"9. In General Assembly a Consumer Protection Resolution No. 39/248 was passed and India is a signatory to this Resolution. The United Nations had passed a resolution in 1985 indicating certain guidelines under which the governments could make laws for better protection of the interest of the consumers and such laws were more necessary in developing countries to protect the consumer from hazardous to their health and safety and to make them available speedier and cheaper redress. With this background, the 1986 Act was enacted. The Statement of objects and reasons show that the Consumer Protection Bill 1986 sought to provide for better protection of the interest of the consumers and for the purpose, to make provision for the establishment of consumer council and other authorities in the settlement of consumer disputes and for matters connected therewith. It seeks, inter alia, to promote and protect the rights of consumers such as protection against marketing of goods which are hazardous to life and property, the right to be informed about the quality, quantity, potency, purity, standard and price of goods to protect the consumer against their trade practices; the right to be assured, wherever possible, access to an authority of goods at competitive prices; the right to be heard and to be assured that the interest of consumers will receive due consideration at appropriate forums; the right to seek redressal against unfair trade practices or unscrupulous exploitation of consumers and right to consumer education. The object is also to provide speedy and simple redressal to consumer disputes, a quasi judicial machinery is sought to be set First Appeal No. 1459 of 2009 11 up at the district, State and Central levels. These quasi judicial bodies will observe principles of natural justice and have been empowered to give relief of specific nature and to award, wherever appropriate, compensation to consumers. Penalities for non- compliance of orders given by quasi judicial bodies have also been provided.
10. The preamble of the Act declares that it is an Act to provide for better protection of the interest of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers disputes and matters connected therewith. In Section 3 of the Act in clear and unambiguous terms it is stated that the provisions of 1986 Act shall be in addition to and not in derogation of the provisions of the any other law for the time being in force.
11. From the statement of objects and reasons and the scheme of 1986 Act, it is apparent that the main objective of the Act is to provide for better protection of the interest of the consumer and for that purpose to provide for better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve the purpose of the Act, various quasi judicial forums are set up at the district, State and National level with wide range of powers vested in them. These quasi judicial forums, observing the principles of natural justice, are empowered to give relief of a specific nature and to award, wherever 'appropriate, compensation to the consumers and to impose penalities for non- compliance of their orders.
12. As per Section 3 of the Act, as already stated above, the provisions of the Act shall be in addition to and not in derogation to any other provisions of any other law for the time being in force. First Appeal No. 1459 of 2009 12 Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, better the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is clear bar."
21. It was also held by the Hon'ble Supreme Court of India in case "Lucknow Development Authority vs. M.K. Gupta", 1994 (1) SCC 243 that:
"We therefore come straight away to the legal issue involved in these appeals. But before doing so and examining the question of jurisdiction of the District Forum or State or National Commission to entertain a complaint under the Act, it appears appropriate to ascertain the purpose of the Act, the objective it seeks to achieve and the nature of social purpose it seeks to promote as it shall facilitate in comprehending the issue involved and assist in construing various provisions of the Act effectively. To begin with the preamble of the Act, which can afford useful assistance to ascertain the legislative intention, it was enacted, 'to provide for the protection of the interest of consumers'. Use of the word protection furnishes key to the minds of makers of the Act. Various definitions and provisions which elaborately attempt to achieve this objective have to be construed in this light without departing from the settled view that a preamble cannot control otherwise plain meaning of a provision. In fact the law meets long felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory. Various legislations and regulations permitting the State to intervene and protect interest of the consumers have become a haven for First Appeal No. 1459 of 2009 13 unscrupulous ones as the enforcement machinery either does not move or it moves ineffectively, inefficiently and for reasons which are not necessary to the stated. The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer which he faces against powerful, business, described as, ' a network of rackets' or a society in which, 'producers have secured power' to 'rob the rest and the might of public bodies which are degenerating into storehouses of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked. The malady is becoming so rampant, widespread and deep that the society instead of bothering, complaining and fighting against it, is accepting it as part of life. The enactment in these unbelievable yet harsh realities appears to be a silver lining, which may in course of time succeed in checking the rot."
22. In "Fair Air Engineers Pvt. Ltd. and Anr. Vs. N.K. Modi", 1996(6) SCC 385, it was held as under:-
"16. It would, therefore, be clear that the legislature intended to provide a remedy in addition to the consequent arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, as seen, Section 34 of the Act does not confer an automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in First Appeal No. 1459 of 2009 14 view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceeding or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act. (emphasis supplied)"
23. It was also held in Spring Meadows Hospital and another vs. Harjot Ahluwalia through K.S. Ahluwalia and another", 1998 (4) SCC 39, the Hon'ble Apex Court, having taken note of the background in which the 1986 Act came to be placed on the statute book, observed that the Act creates a framework for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary court system. The Act being a beneficial Legislation should receive a liberal construction. Further it was held by a Bench of three learned Judges of the Hon'ble Apex Court in "State of Karnataka vs. Vishwabharathi House Building Coop. Society and others", 2003(2) SCC 412, that the 1986 Act was brought into force in view of the long-felt necessity of protecting the common man from wrongs wherefor the ordinary law for all intent and purport had become illusory and that in terms of the said Act, a consumer is entitled to participate in the proceedings directly as a result whereof his helplessness against a powerful business house may be taken care of. Referring to the Fair Air Engineers (P) Ltd., case (aforementioned) the Court stated that the provisions of the said Act are required to be interpreted as broadly as possible. On the question of jurisdiction it is First Appeal No. 1459 of 2009 15 stated that the forums under the Act have jurisdiction to entertain a complaint despite the fact that other forums/courts would also have jurisdiction to adjudicate upon the lis. It is also noticed that the Act provides for a further safeguard to the effect that in the event a complaint involves complicated issues requiring recording of evidence of experts, the complainant would be at liberty to approach the civil court for appropriate relief.
24. It was also held by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi reported as "Smt. Kalawati and others versus M/s United Vaish Co-operative Thirft and Credit Society Ltd.", 2002(1) CLT 101 in which it was held that:
"Section 3 - Delhi Co-operative Societies Act, 1972, Sections 60 and 93 - Bar of jurisdiction - Deposits - Non payment of by respondent society on maturity to the petitioners who were members of the society - Complaint filed before District Forum against respondent society - Plea of the respondent society that in view of Section 93 of the Societies Act consumer Forum would have no jurisdiction in respect of the dispute - Held that a District Forum is not a Civil Court though it may have the trappings of a Civil Court - Neither it is a revenue court - Do not think that Section 93 of the Societies Act would come in the way of the District Forum in assuming the Jurisdiction.
(ii) Section 2(1)(d) - Delhi Co-operative Societies Act, 1972, Sections 60 and 93 - Consumer Deposits - Non payment of by respondent society on maturity to the petitioners who were members of the society - Complaint filed before District Forum against respondent society - Findings by the State Commission that a member cannot be a consumer vis-à-vis the society of which he is a member set aside - Held that First Appeal No. 1459 of 2009 16 complainants were certainly consumers and could maintain their complaints in the District Forum."
25. As such, the Hon'ble Supreme Court has held in "Secretary, T.C.A.C.S." case(supra) that the remedies that are available to an aggrieved party under the 1986 Act are wider. For instance in addition to granting a specific relief the forums under the 1986 Act have jurisdiction to award compensation for the mental agony, suffering, etc., which possibly could not be given under the Act in relation to dispute under Co-op Society Act. Merely because the rights and liabilities are created between the members and the management of the society under the Act and forums are provided, it cannot take away or exclude the jurisdiction conferred on the forums under the 1986 Act expressly and intentionally to serve a definite cause in terms of the objects and reasons of the Act reference to which is already made above. When the decision of "Dhulabhai and others vs. The State of Madhya Pradesh and another", 1968(3) SCR 662; was rendered the provisions similar to 1986 Act providing additional remedies to parties were neither available nor considered. If the argument of the learned counsel for the appellant is accepted it leads to taking away the additional remedies and forums expressly provided uner the 1986 Act, which is not acceptable.
26. In view of above discussion, we are of the view that the execution application before the District Forum is maintainable.
27. Learned counsel for the appellant further argued that the appellants filed the execution application under Section 27 of the Consumer Protection Act, 1986 but the District Forum has wrongly held that the Decree Holder's have not made a prayer for invoking the penal provisions under Section 27 of the Consumer Protection Act, 1986 and are interested only in recovery of the money from the respondents and did not want the proceedings under Section 27 of the C.P. Act. First Appeal No. 1459 of 2009 17
28. The Execution Application was pending in the Forum at the time of appointment of the Liquidator, as such, there is need to obtain the leave from the Registrar to continue the proceedings and relied upon the judgment of the National Commission in the case of Ravikant and anr. Vs. Veena Bhatnagar, reported in (1996) CPJ 260 (NC) to submit that the no proceedings against the company under Section 27 of the Act after the appointment of the Provisional Liquidator except by the leave of the Court. The relevant portion of the judgment reads as follows:
"Admittedly no winding up order has been passed of the two companies. The State Commission considered the provisions of 446 of the Companies and held in our view rightly that from the reading of Sub- section (1) of Section 446 of the Companies Act it is evident that no proceedings against a Company after the appointment of a Provisional Liquidator can be commenced except by the leave of the Court. However, if any proceedings are pending on such date these can continue till the date when winding up order are passed by the Court. The proceedings before the State Commission thus could continue inspite of the fact that that a Provisional Liquidiator has been appointed by the High Court for I.G.F. Leasing (P) Ltd. as the cases were pending on the date of the appointment of the Provisional Liquidator.
However, this judgment was challenged in this Court wherein it was held by this Court that the pendency of winding up proceedings will not come in the way of the Commission passing orders under Section 27 of the Act. Thus, the petitioner cannot rely First Appeal No. 1459 of 2009 18 upon the judgment of the National Commission to contend that the proceedings under Section 27 of the Act cannot commence in view of the bar of the Section 446 of the Companies Act."
29. It was held by the Delhi High Court in case titled as "Prudential Capital Markets Ltd. V/s Dipankar Guha" 2008(1) CPC page 45 that:-
"5. In so far as the merits of the dispute are concerned, this Court is fully bound by the judgment of a Division Bench of this Court in Ravi Kant's case(supra). The Division Bench of this Court in para 22 of the said judgment clearly held that the penal provision under Section 27 of the Act are in addition to the mode of recovery contemplated by Section 25 and, therefore, the pendency of winding up proceedings will not come in the way of the Commission passing orders under Section 27 of the Act. Thus this plea of the learned counsel for the petitioner that a winding up order bars proceedings under Section 27 of the Act has no substance.
30. We have gone through the execution application filed by the appellants before the District Forum. The head note as well as prayer of the execution application, are reproduced as under:-
"Head-note Application u/s 27 of Consumer Protection Act for the Recovery of Rs. 2,00000/- being the amount of the FDR's along with interest @ 12.5% p.a. from 11.02.2004 till realization plus Rs. 1000 as Costs."
Prayer Hence prayed that the O.Ps may kindly be directed to pay the above mentioned amount of the FDR's to the First Appeal No. 1459 of 2009 19 Complainants along with interest @ 12.5% from 11.02.2004 till realization and also to pay Rs. 1000/- as costs as ordered by the Forum and the Court may kindly issued the Show Cause Notice to the O.Ps that why they have not made the payment to the Complainants till today of the above mentioned amounts and failing which the Warrants of the Arrest of the O.Ps may kindly be issued for the purpose of the recovery the above mentioned amounts of the Complainants/Applicants."
31. So from the perusal of the execution application, it is very much clear without any doubt that the appellants have filed the execution application under Section 27 of the C.P. Act and not under Section 25 of the C.P. Act. The findings of the District Forum that the execution application filed by the appellants under Section 25 and not under Section 27 of the C.P. Act is not correct as per the pleadings of the execution application filed by the appellants before the District Forum.
32. As per the above discussion, we are of the view that the order of the District Forum is against the law and pleadings and as such, the order of the District Forum is set-aside. No order as to costs.
33. The Registry is directed to return the record of the District Forum, SAS Nagar(Mohali).
34. The arguments in this appeal were heard on 6.4.2010 and the order was reserved. Now the order be communicated to the parties.
35. Copy of this order be placed on First Appeal No. 1460 of 2009(Trilok Singh Vs. The Mohali Bank and others Employees Co-op. U.S.E.T. & C Society Ltd.), First Appeal No. 1461 of 2009(Rinku Garg Vs. The Mohali Bank and others Employees Co-op. U.S.E.T. & C Society Ltd.), First Appeal No. 1462 of 2009(Gurcharan Dass & Anr. Vs. The Mohali Bank and others Employees Co-op. U.S.E.T. & C Society Ltd.), First Appeal No. 1463 of 2009(Veena Garg Vs. The Mohali Bank First Appeal No. 1459 of 2009 20 and others Employees Co-op. U.S.E.T. & C Society Ltd.), First Appeal No. 1464 of 2009(Ashok Mehta Vs. The Mohali Bank and others Employees Co-op. U.S.E.T. & C Society Ltd.), First Appeal No. 1465 of 2009(Sushma Goyal Vs. The Mohali Bank and others Employees Co- op. U.S.E.T. & C Society Ltd.), First Appeal No. 1466 of 2009(Santokh Singh Chawala Vs. The Mohali Bank and others Employees Co-op. U.S.E.T. & C Society Ltd.), First Appeal No. 1467 of 2009(Santokh Singh Chawala Vs. The Mohali Bank and others Employees Co-op. U.S.E.T. & C Society Ltd.), and First Appeal No. 1468 of 2009(Devender Kumar Verma & Anr. Vs. The Mohali Bank and others Employees Co- op. U.S.E.T. & C Society Ltd.).
(Lt. Col. Darshan Singh [Retd.])
Presiding Member
April 20, 2010. (Piare Lal Garg)
as Member
First Appeal No. 1459 of 2009 21
First Appeal No. 1459 of 2009 22