State Consumer Disputes Redressal Commission
Surendra Ramnarayan Shivhare vs Bombay Stock Exchange Ltd., on 29 November, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, CIRCUIT BENCH AT NAGPUR STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, CIRCUIT BENCH AT NAGPUR 5 Th Floor, Administrative Building No. 1 Civil Lines, Nagpur-440 001 First Appeal No. A/07/881 (Arisen out of Order Dated 24/07/2007 in Case No. MA/07/19 of District Nagpur) 1. Surendra Ramnarayan Shivhare R/o House No. 353, Tekdi Road,Sita Burdi, Vaman Lane, Nagpur ...........Appellant(s) Versus 1. Bombay Stock Exchange Ltd., Through its Assistant General Manager Shri Nilkant E. Pandya 25th Floor, Feroze Jee Jee Bhoy Tower Dalal street, Fort , Mumbai 2. The Trustee Investors Protection Fund, Bombay Stock Exchange Ltd., 25th Floor, Feroze Jee Jee Bhoy tower, Dalal Street, Fort,Mumbai ...........Respondent(s) BEFORE: Hon'ble Mr.S.M. Shembole Presiding Member Hon'ble Mr.N. Arumugam Member PRESENT: Adv. Ms S Shivhare ......for the Appellant Adv. Mr R V Deshmukh ......for the Respondent JUDGEMENT
(Passed on 29.11.2012) Per Mr S M Shembole, Honble Presiding Member This appeal is directed against the judgement & order dtd.24.07.2007 passed by District Consumer Forum, Nagpur dismissing the execution proceeding bearing No.MA/07/19 u/S 27 of CPA.
Brief facts giving rise to this appeal are that:-
1. Appellant / complainant Surendra Shivhare had filed Consumer Complaint bearing No.CC/92/603 against Managing Director, (Mr Arun Patel), PICPL Ltd. and Jt. General Manager (Mr J J Bhatt), The Stock Exchange. The same complaint came to be partly allowed vide order dtd.27.10.1994, directing the o.ps to deliver the share certificates to the complainant and to interest @ 18% p.a. on Rs.23,000/-, etc. However, the same order was not complied with by the respondents till the year 2007. Therefore, on 26.02.2007 the complainant / respondent No.1 filed execution proceeding u/S 27 of CPA 1986. Prior to that, the execution proceeding u/S 25 of CPA was also filed by the complainant / respondent No.1 in City Civil Court, Mumbai. Respondent Bombay Stock Exchange resisted the execution proceeding by submitting reply in writing, contending inter alia that the execution proceeding is not maintainable against it as it was not the party to the complaint and further the execution proceeding is barred by limitation, etc.
2. On hearing both the sides, the Forum dismissed the execution proceeding, holding that it is barred by limitation and further that the execution proceeding was not filed against the original o.ps. etc.
3. Feeling aggrieved by that order the complainant has preferred this appeal.
4. We heard Ld. Counsel for both the sides at length and perused the copy of impugned judgement & order and also the copy of judgement dtd.27.10.1994 passed by the District Consumer Forum in Consumer Complaint No.CC/92/603.
5. It is submitted by Ms S Shivhare, Ld. Counsel for the respondent No.1 that though the original complaint was against Bombay Stock Exchange, Mumbai the District Consumer Forum wrongly held that execution application is not against the original o.ps. Further she has submitted that there was continuous cause of action for fling the execution proceeding but the Forum wrongly held that the execution proceeding u/S 27 is barred by limitation. According to her the Forum wrongly relied on the provisions of Sec.468 of Cr.PC and held that the execution proceeding is barred by limitation. According to Adv. Ms Shivhare as per the provisions of Sec.472 of Cr.PC there is no limitation provided for continuing offences u/s 27 of CPA but the Forum giving goby to this legal provision, committed error in holding that Provision of Sec.468 of Cr.PC would attract, etc. She has submitted that as the o.ps have not complied with the order passed by the Forum by making the payment, the period of limitation continued till date. She has also submitted that though original complaint was filed against the respondent Bombay Stock Exchange, Mumbai, showing the name of Mr J J Bhatt, Jt.G.M. the Forum has wrongly observed that the execution proceeding is not filed against the parties, who were made in the complaint.
6. Per contra Mr Deshmukh, Ld. Counsel for the respondents pointed out from the copy of impugned order and also the copy of judgement & order dtd.27.10.1994 passed in Consumer Complaint No.CC/92/603 and submitted that the respondent BSE was not the party to the original complaint. The copy of judgement dtd.27.10.1994 shows that the complaint was against Mr J J Bhatt, Jt.G.M. of BSE and one Mr Arun Patel, MD of PICPL. However, the copy of impugned order doesnt reflect that the execution proceeding was filed against them. This execution proceeding was filed against BSE through Asstt. G.M. Mr Nilkanth Pandya.
It is submitted by the Ld. Counsel for the appellant that though complaint was filed in the name of Mr J J Bhatt, Jt. G.M. of Bombay Stock Exchange, Mumbai, it was filed against for the BSE only and therefore, the execution proceeding was filed against BSE. But we find no force in this submission, firstly, because no reasons are given as to why Mr Arun Patel is not made party to the execution proceeding. Secondly, Consumer Complaint was not filed against BSE, showing Mr J J Bhatt as Jt. G.M. But it was filed against Mr J J Bhatt only just showing his designation as Jt. G.M. Therefore, the Forum has rightly held that the execution proceeding is not filed against the original o.ps.
7. As far as the point of limitation is concerned when Sec.27 of CPA is penal Section and in the event of failure of compliance of the order passed by the Forum, summary criminal proceeding is required to be initiated against the defaulters, the Provisions of Cr.PC are required to be taken into consideration. As per the Provisions of 27 of CPA 3 years imprisonment is provided and if it is so as per the Provisions of Sec.468 of Cr.PC the limitation period for such offence would be 3 years only. But in the present case the execution proceeding was undisputedly filed against the respondents / o.ps after more than 12 years. Therefore, the Forum has rightly held that the execution proceeding is hopelessly barred by limitation.
8. It is not the contention of the appellants that the respondent had given any assurance to comply the order by making payment and therefore, there was continuing cause of action so as to file such execution proceeding after more than 12 years. Therefore, the Provisions of Sec.471 of Cr.PC cannot be applicable to the present case. Hence, arguments advanced by the Ld. Counsel for the appellant are being contrary to the Provisions of Cr.PC cannot be sustained.
9. For the foregoing reasons the appellant fails and appeal deserves to be dismissed.
Hence, the following order:-
ORDER i. Appeal is dismissed.
ii. No order as to cost.
iii. Copy of this order be supplied to the parties.
[ S. M. SHEMBOLE ] PRESIDING MEMBER [ N. ARUMUGAM] MEMBER sj