State Consumer Disputes Redressal Commission
Dr.Appasaheb M.Gadve And Ors vs Miraje Revolution Point Through ... on 11 August, 2022
1 (RP/19/131)
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA, MUMBAI
REVISION PETITION No.RP/19/131
(Arisen out of Order dated 07/03/2019 passed by the District Consumer
Disputes Redressal Commission, Sangli in Execution Application No.
EA/17/29)
1. Dr.Appasaheb Mahadev Gadve
R/o Guruwar Peth, Miraj,
Dist.Sangli.
2. Smt.Snehlata A. Kantap
R/o Budhwar Peth, Miraj.
3. Mr.Rajendra Madhukar Deval
R/o High School Road, Miraj.
4. Mr.Balaso T. Kurane
R/o Ganga Niwas Station Road,
Miraj.
5. Meghnandan M. Agrawal
R/o Agrawal Bldg Guruwar Peth,
Miraj.
6. Mr.Dilip M. Chivate
Somwar Peth,
Near Mallikarjun Mandir,
Miraj.
7. Mr.Dattatraya M. Durgade
R/o Takali Road, Godad Mala,
Miraj.
8. Mr.Dayadhan L. Sonawane
R/o Udgaon ves Miraj.
9. Smt.Shashikala B. Kulloli
R/o Shivaji Nagar, Miraj
10.Mr.Arun R. Kulkarni
R/o Jilebee Chowk,
Brahman Puri, Miraj.
11.Mr.Deepak D. Jamdar
R/o Rama Uddan
Pandharpur Road,
Miraj. Petitioner(s)
versus
2 (RP/19/131)
1. Ramesh Miraje Foundation Trust
through Rakesh Ramesh Miraje
R/o Ratna Gulmohar Colony,
South Shivaji Nagar,
Sangli.
2. The Miraj Urban Co.Op.Bank Ltd.
Miraj through its Liquidator
Head Office
Miraj Station Road,
Opp. S.T.Stand,
Miraj. Respondent(s)
BEFORE:
Mr.Justice S.P.Tavade, President
A.Z.Khwaja, Judicial Member
PRESENT:
Advocate Tamhankar for the petitioner
Advocate Ajay Pawar for the respondent No.1/complainant
None present for respondent No.2.
ORDER
(Dated: 11th August, 2022) Per: Mr.A.Z.Khwaja, Hon'ble Judicial Member [1] Petitioner Nos. 1 to 11 have preferred the present revision petition feeling aggrieved by the Order dated 07/03/2019 passed by the District Consumer Disputes Redressal Commission, Sangli in Execution Application No. EA/17/29 wherein the application file by the present petitioners for discharge came to be rejected. Short facts leading to the filing of this present revision petition may be stated as under-
[2] Respondent/complainant had earlier filed one complaint against the present petitioners and the same came to be duly allowed and certain directions were also issued against the present petitioners. Respondent thereafter filed 3 (RP/19/131) execution petition bearing number EA/17/29 for execution of the said order. After filing of the execution petition summons came to be issued against the present petitioners/accused. It appears that there after the present petitioners appeared before the District Consumer Disputes Redressal Commission, Sangli and filed an application for claiming discharge under the provisions of section 468 of Criminal Procedure Code. The learned District Commission Sangli there after heard the learned Advocate for the revision petitioners/ accused and thereafter dismissed the application by passing detailed order on 07/03/2019. Against this order, the present petitioners have come up in revision.
[3] After the filing of the revision petition due notices were issued to the respondents. Respondents have appeared. We have heard Shri.Tamhankar, learned Advocate for the petitioners and Shri.Pawar, learned Advocate for the respondent No.1. At the outset, it is submitted by the learned Advocate for the petitioner that the District Commission Sangli has not properly appreciated the submissions advanced and therefore passed erroneous Order on 07/03/2019. Learned Advocate for the petitioner has contended before us that the earlier consumer complaint file by the respondent/complainant as well as execution application bearing number EA/17/29 were not tenable in law and no cognizance of the same can be taken in view of specific provisions of section 468 of Criminal Procedure Code. Shri.Tamhankar-learned Advocate has submitted that M/s. Auto India had earlier preferred one execution petition bearing number EA/07/52 and the same had come to the dismissed on 19/08/2013 on the ground that complainant was absent and was not interested in prosecuting the execution application. After dismissal in the year 2013, the complainant had again filed execution application before the District Commission, Sangli bearing No. EA/17/29 u/s 27 of the Consumer Protection Act, 1986 for enforcement of the order passed in original complaint No.CC/06/217 decided on 28/11/2006. As stated earlier during the pendency of 4 (RP/19/131) the present execution proceeding the petitioners/opponents have filed two applications challenging the execution proceeding, one of which was filed by invoking the provisions under Section 468(2)(c) of Criminal Procedure Code, 1973. It is vehemently submitted by Shri.Tamhankar, learned Advocate appearing on behalf of the petitioner that, Section 468(2)(c) of Criminal Procedure Code, 1973 specifies that no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation or three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. Hence, it is submitted that the District Commission, Sangli had no power or authority to take cognizance of the execution petition once the earlier petition had come to be dismissed on 19/08/2013. In order to support this contention Shri.Tamhankar, learned Advocate had drawn our attention specifically to section 468(2) (c ) of Criminal Procedure Code, 1973 and has also relied upon various rulings on this aspect. There is no serious dispute about the factual aspect in as much as the present petitioners/ opponent had filed two applications challenging the tenability of the execution proceeding and the applications filed by the petitioners came to be rejected on 07/03/2019, copy of the same is also filed on record. We have gone through the said applications in which the petitioners have taken recourse to section 245 of Criminal Procedure Code, 1973 as well as section 468 of Criminal Procedure Code, 1973 Section 244 deals with the trial of offence by way of warrant trial and section 468 deals with the aspect of limitation relating to taking cognizance. We have also heard Shri.Pawar, learned Advocate appearing for the respondent No.1. He has strongly rebutted these contentions. Shri.Pawar, learned Advocate appearing for the respondent No.1 submitted that the provisions of section 244 relating to warrant trial as well as section 468(2) (c ) relating to limitation are both not at all applicable to the execution proceeding filed u/s 27 of the Consumer Protection Act, 1986. It is argued by Shri.Pawar, learned Advocate appearing for the respondent No.1 that all the 5 (RP/19/131) provisions of the Criminal Procedure Code, 1973 have not been made applicable to the execution proceeding. Further Shri.Pawar, learned Advocate appearing for the respondent No.1 has taken preliminary objection on the tenability of the revision petition on the ground that the revision petition itself is not maintainable against any order passed in execution proceeding. On this aspect also Shri.Pawar, learned Advocate appearing for the respondent No.1 has heavily relied upon several Judgments and more particularly one Judgment in the case of Karnataka Housing Board versus K.A.Nagamani, Civil Appeal No.4631 of 2019 decided on 06/05/2019. But we will deal with the same subsequently.
[4] At the outset, it would be relevant to deal with the submission made by Shri.Tamhankar, learned Advocate for the petitioners. Before dealing with the Judgments on which reliance is placed it is necessary to mention that section 468(2)(c) specifies that no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation as three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
[5] It is an admitted fact that, the proceedings under section 27 of the Consumer Protection Act, 1986 are to be conducted in accordance with summary procedure as laid down in chapter XXI in the Criminal Procedure Code, 1973. There is also no serious dispute regarding the proposition that all the proceedings of Criminal Procedure Code, 1973 have not been made applicable to the Consumer Protection Act, 1986 which is a welfare legislation. Coming now to the Judgements on which reliance has been placed by Shri. Tamhankar, learned Advocate for the petitioner has relied on the case of M.K. Meena and 3 others versus Dr. Satish Swaroop Gehlot decided by the Hon'ble National Consumer Dispute Redressal Commission, New Delhi in Revision 6 (RP/19/131) Petition No.858 of 2015 decided on 19th January, 2017 in which it has been observed that under section 27 of the Consumer Protection Act, 1986, the consumer fora have been conferred the powers of Judicial Magistrate of first class for the trial of offences under the Consumer Protection Act, 1986. In a recent order passed by the Hon'ble Supreme Court in Civil Appeal Nos.224-225 of 2015 Kamlesh Aggarwal versus Narain Singh Dabbas & anr., it has been made incumbent upon the consumer fora to follow the procedure as laid down in the Code of Criminal Procedure, 1973, while exercising the powers conferred upon them. It is evident, therefore, that the District Commission is well within its powers to proceed against the petitioners in accordance with law, if they reach the conclusion that the opponents had not implemented the orders passed by the Consumer fora. Further, he has relied upon one Judgement in the case of Jitender Bajaj versus State (U.T Chandigarh) and others in criminal miscellaneous number 2066-M of 1992, 25/04/2005 decided by the Hon'ble Punjab and Haryana High Court. In that case, the complaint was dismissed for non appearance of complainant and it was observed that, when in summons case if complaint is dismissed for non appearance of complainant or his counsel, it will mean acquittal of accused and second complaint is not competent. We have carefully gone through both the Judgements on which reliance is placed by Shri. Tamhankar, learned Advocate for the petitioners. We are of the view that the same are not applicable as they were not relating to the execution proceeding under the Consumer Protection Act 1986. Further as observed earlier, the provisions as mentioned in chapter XXI relating to the summary trial alone have been made applicable to the Consumer Protection Act, 1986 and not all the provisions of Criminal Procedure Code, 1973 As such, we are unable to accept the contention of Shri. Tamhankar, learned Advocate appearing for the petitioners that section 468 of Criminal Procedure Code, 1973 would be directly applicable to the execution proceeding under the Consumer Protection Act, 1986.
7 (RP/19/131) [6] Turning now to the preliminary objection raised by Shri.Pawar, learned Advocate appearing for the respondent/complainant, it is argued by him that no revision can lie against any order passed by the learned District Consumer Commission during execution proceeding initiated under section 27 of the Consumer Protection Act, 1986. On this aspect, Shri. Pawar has heavily relied upon one Judgement of the Hon'ble Supreme Court of India, in the case of Karnataka Housing Board versus K.A.Nagamani, Civil Appeal No. 4631 of 2019, decided on 6th May, 2019. In that case also one Revision Petition was filed by before Hon'ble National Consumer Disputes Redressal Commission, New Delhi under section 21(b) of the Consumer Protection Act, 1986 and therefore there was an occasion for the Hon'ble Supreme Court to deal with the revision powers of Hon'ble National Consumer Disputes Redressal Commission as well as of the State Commission. In that case, it was observed by the Hon'ble Apex Court that, the execution proceeding under the Consumer Protection Act, 1986 cannot be regarded as continuation of suit and further no revision can lie against any order passed during the execution proceeding, as provision of appeal is available for the same. Here, in the present case before us also present Revision Petition has challenged impugned Order passed by the District Consumer Commission, Sangli on 07/03/2019 wherein the petitioner had challenged the tenability of the execution proceeding on the ground that the execution proceeding were barred by limitation and other grounds. We have already observed earlier that all the provisions of Criminal Procedure Code, 1973 are not at all applicable to the Consumer Protection Act, 1986 while dealing with the execution proceeding. We have also gone through the impugned order passed by the District Commission on 07/03/2019 and we find that the District Commission, Sangli has elaborately dealt with the objection raised by the revision petitioner/opponent and it is not necessary to go into the same again. In any case, the contentions raised by Shri. Tamhankar -the learned 8 (RP/19/131) Advocate appearing for the petitioners, cannot be accepted in view of the observations made by the Hon'ble Supreme Court of India in the case of Karnataka Housing Board versus K.A. Nagamani, on which reliance is placed by Shri. Pawar- learned Advocate for the respondent/ complainant. As such, in view of the observations made earlier, we feel that, the revision itself is not at all tenable in view of the express provisions of the Consumer Protection Act, 1986. In the light of the above discussion, we are unable to accept the contentions advanced by Shri.Tamhankar, learned Advocate for the petitioners and so we proceed to pass the following order-
ORDER
1] Revision petition is hereby dismissed.
2] No order as to costs.
Copy of order be supplied to the parties.
[Justice S.P.Tavade]
President
[A.Z.Khwaja]
Judicial Member
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