State Consumer Disputes Redressal Commission
Vibgyor Gold Ltd. Rep. By Raja Bhadra ... vs Atasi Das on 11 February, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/1269/2015 (Arisen out of Order Dated 17/11/2015 in Case No. EA/202/2015 of District Kolkata-II(Central)) 1. Vibgyor Gold Ltd. Rep. by Raja Bhadra Chairman Cum Managing Director H.O at Vibgyor Tower, 87, Dr. Suresh Sarkar Road, P.S - Entally, Kolkata - 700 014. ...........Appellant(s) Versus 1. Atasi Das W/o, Pulak Das, Vill - Gangra, P.O - Sonachura, P.S - Nandigram, Dist - Purba Medinipur, Pin - 721 646. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Appellant: Ms. Tanusree Dhar, Advocate For the Respondent: Mr. Barun Prasad., Advocate ORDER Date of Hearing : 27.01.2016. Date of Judgment : Thursday, the 11th day of February, 2016. Hon'ble Mr. Samaresh Prasad Chowdhury Presiding Member
Judgment Challenge in this appeal under Section 27A of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) is to the Order No. 04 dated 17.11.2015, made by the Kolkata District Consumer Disputes Redressal Forum, Unit-II (for short, Ld. District Forum) in EA No. 202/2015 arising out of Consumer Complaint No. 229/2015 whereby a direction has been issued by the Ld. District Forum to execute an order of WA against the Opposite Party/Judgment along with sealing order with the direction upon the Officer-in-Charge, Entally Police Station of Kolkata Police to execute the same by 02.12.2015.
Respondent herein being complainant initiated the Consumer Complaint against the O.P. for deficiency in service on the part of O.P. to return the matured value of Rs.3,90,000/- matured on 18.6.2014 and 18.7.2014. The Appellant being O.P. contested the same but at the time of final hearing, it has been submitted on behalf of O.P. that as they shall have to refund the amount with interest, they will not file any evidence to repute the contention of the complainant. On 11.8.2015 the said complaint was allowed with a direction upon the O.P. to refund the entire matured amount of Rs. 3,90,000/- with interests @ 8% p.a. which shall be counted from the date of maturity on 18.7.2014 till its full payment.
In spite of one month's time given to Opposite Party they did not comply with the order on 14.9.2015, the execution application has been filed. In spite of service of notice the judgment debtor did not appear. In such a situation, Ld. District Forum passed the order impugned as indicated above which prompted the O.P./Judgment debtor to prefer this appeal. We have scrutinised the materials on record and considered the submission advanced by the Ld. Advocate appearing for the party.
Mr. Alok Mukhopadhyay, Ld. Advocate for appellant has submitted that his client intends to pay the awarded amount by instalments and unless some reasonable time is given it would be quite difficult to comply with the order. Ld. Advocate for the appellant has also submitted that the Ld. District Forum has exceeded its jurisdiction by passing a sealing order which is beyond the scope of Sections 25 and 27 of the Act. He has further submitted that the imposition of penal damages at Rs. 10,000/- is also outside the jurisdiction of the court and is a nullity.
Mr. Barun Prasad, Ld. Advocate for the Respondent, on the other hand, submitted that his client has already suffered much and if any indulgence is given to the appellant to make payment by way of instalments, then there is hardly any scope to recovery the amount.
Having heard Ld. Advocate for the respective parties, it appears that in spite of undertaking given by the Ld. Advocate for the O.P. before the Ld. District Forum not a single penny has been paid by the O.P. in favour of the complainant who invested her hard earned money into Swarna Sanchay Prakalpa. Moreover, in spite of having opportunity the judgement debtor has not appeared before the Ld. District Forum and sought any relief for payment by way of instalments. This Commission being an Appellate Authority is only to see whether the impugned order is tenable in the eye of law. Therefore, there is hardly any scope to grant instalments in payment of the amount awarded by the Ld. District Forum.
However, the provisions of Section 25(1) and (2) of the Act, relates to interim orders of attachment of property which remains valid for three months. In respect of final order of attachment, the Ld. District Forum can only issue certificate for the amount due from the Judgment debtor/Opposite Party to the Collector and Collector is supposed to proceed to recover the amount in the same manner as land revenue is recovered. Section 25(3)of the Act, has prescribed the mode of recovery of the amount which the Judgment debtor/Opposite Party has been ordered to pay to the complainant and on an application, Consumer Forum would issue a certificate for the amount recoverable to the Collector of the district who shall proceed to recover the amount due in the same manner as arrears of land revenue.
Apart from civil action by way of attachment of property, Section 27 of the Act empowers the Consumer Forum to initiate a penal action, but the provisions of Sections 25/27 of the Act does not authorise a Consumer Forum to seal the property of Judgment Debtor. Consequently, the Ld. District Forum has acted beyond its jurisdiction by sealing the property of the Appellant/Judgment debtor.
Therefore, when non-compliance of the Ld. District Forum, the execution application has been filed and on the basis of materials on record, the Ld. District Forum has issued Warrant of Arrests against the judgment debtor we do not find any shortcomings in passing the order impugned. However, the order of sealing being beyond the scope of the Act, it is liable to be set aside.
So far as imposition of penal damages of Rs. 100/- per day is concerned, it would be worthwhile to have a look to the provisions of Section 3(1) of the Interest Act, 1978 which provides - 'In any proceedings for the recovery of any debt or damages or in any proceedings in which a claim for interest in respect of any debt or damages already paid is made, the court may, if it thinks fit, allow interest to the person entitled to the debt or damage or to the person making such claim, as the case may be, at a rate not exceeding the current rate of interest, for the whole or part'.
In this regard I would like to refer a decision of Hon'ble National Commission reported in 2013(1) CCC 129 (Smt. Sheela Wanti and anr. -vs- State Bank of India and anr.). In the said decision, it has been held - 'imposition of interest is not a penalty or punishment at all but is the normal accretion on capital; that in equity a person keeping the money is required to pay the interest being normal accretion on principal amount'.
Therefore, relying upon the relevant provisions contained in the Act and the decision of the Hon'ble National Commission, we have no hesitation to hold that the imposition of penal damages @ Rs. 100/- per day was beyond the scope as prescribed by the legislature and as such in accordance with the decision of the Hon'ble Supreme Court of India reported in 2010(8) Supreme 46 (Swarup Singh & Anr. -vs- Union of India), it should be termed as 'nullity'. However, when the Judgment debtor did not comply with the order, he is under obligation to make payment of interests and such interests must be assessed for the purpose of this case @ 8% p.a. from the date till its realisation.
For the reasons aforesaid, the appeal is allowed on contest in part without costs with a direction upon the parties to appear before the Ld. District Forum on 11.3.2016 to receive further order from that end. Meanwhile, if an amount to the extent of 50% of the total recoverable amount is deposited, the Ld. District Forum will recall the order of the W.A in order to enable the Appellant/Judgment debtor to make payment of balance consideration amount within three (3) months thereof by way of three (3) instalments.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Forum and necessary action. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER