State Consumer Disputes Redressal Commission
Mr. Bhavesh G. Goswami vs Harishchandra N. Arya & Ors. on 7 February, 2018
1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
FIRST APPEAL NO. A/16/274
(Arising out of order dated 02/02/2016 passed by Addl.Mumbai Suburban
District Forum at Bandra in Execution Application No.EA/4/2015)
Mr.Bhavesh Goswami,
Ex-Director of
M/s.Oren Kitchen Appliances Pvt.Ltd.,
Oren Kitchen World, Viviana Mall,
S-8, R City Mall, LBS Marg,
Ghatkopar West, Mumbai 400 086.
Present address:
D/84, Kalpatru Tower, Akurli Road,
Kandivali East, Mumbai101. .....Appellant
Versus
[1] Harishchandra Narayanrao Arya,
[2] Ameeta Harishchandra Arya,
Both r/at : 9B/1101, Powai Cosmopolitan
Co-operative Housing Society Ltd., Rambaug,
Opp.Powai Lake, Near Powai Police Station, ..Respondent
Mumbai 400 076.
BEFORE: Mrs.Usha S. Thakare, Presiding Judicial Member
Mr.D.R. Shirasao, Judicial Member
PRESENT:
For the Appellant(s) : Advocate Mr.Kiran Patil
For the Respondent(s) : Advocate Mr.Pritam Runwal
ORDER
Per Mr.D.R.Shirasao, Judicial Member [1] Being aggrieved by judgment and order passed by the Learned Additional District Consumer Disputes Redressal Forum, Mumbai Suburban District at Bandra in Execution Application No.04/2015 on 02/02/2016 convicting accused under Sec.27 of 2 the Consumer Protection Act, 1986 and sentencing him to suffer S.I. for a period of one month and to pay fine of Rs.10,000/- in default to undergo S.I. for seven days, opponent accused has preferred this appeal.
[2] Brief facts of the case are as under:-
Complainants had filed consumer complaint bearing no.62/2013 against M/s.Oren Kitchen Applicances Pvt.Ltd. It was decided on 19/03/2014. The opponent was directed to make all the repairs to the modular kitchen provided by the opponent to the complainants within one month from passing of the order and opponent was also directed to pay compensation of Rs.57,000/- and costs of litigation Rs.3,000/- to the complainants. For non-compliance of the order passed by the learned District Forum, the complainants have filed execution application under Sec.27 of the Consumer Protection Act, 1986 against opponent. After recording verification statement of the complainant, process was issued against Bhavesh Goswami on the ground that he was director of the company. Accordingly, Bhavesh Goswami appeared before the Learned District Forum. His statement was recorded. After considering the same, the Learned District Forum had come to conclusion that Bhavesh Goswami has wilfully neglected to comply the order passed by the Learned District Forum. Hence, Learned District Forum convicted Bhavesh Goswami under Sec.27 of the Consumer Protection Act, 1986 and sentenced him to suffer S.I. for a period of one month and to pay fine of Rs.10,000/- in default to undergo S.I. for seven days. Being aggrieved by the same Bhavesh Goswami has preferred this appeal.
[3] Heard learned advocate appearing for the appellant. He 3 submitted that original order passed in consumer complaint no.62/2013 was against the company, M/s.Oren Kitchen Appliances Pvt.Ltd. Responsibility of compliance of that order was on the company and directors of the company. He submitted that this execution application was filed on 15/01/2015. However, on that date, Bhavesh Goswami was not director of the company. He had already resigned company on 06/05/2013 and thereafter other persons have become directors of the company. He submitted that the appellant who is convicted in this case was not director of the company at the time of passing of the order and he was not responsible for making compliance of the order passed by the District Forum. He submitted that for that purpose, complainants were required to take steps against the present directors of the company. However, the complainants have not done the same. Learned District Forum has also not considered the same and wrongly convicted the appellant accused assuming that he is responsible for non-compliance of the order passed by the Learned District Forum. Hence, he submitted that appeal filed by the appellant be allowed and order of conviction passed against him be set aside and he be acquitted.
[4] Heard learned advocate appearing for the respondent. He submitted that the appellant was director of the company. At the time of transaction, he was director of the company and as he was required to comply the order passed by Learned District Forum which was against the company. He submitted that hence the appellant had deliberately neglected to comply the order passed by the Learned District Forum, the Learned District Forum had rightly considered the same and convicted him under Sec.27 of the Consumer Protection Act, 1986. Hence, he submitted that appeal filed by the appellant be dismissed.4
[5] Perused record of the case. On perusal of the same, it has become clear that the complainants had filed consumer complaint no.62/2013. The same was filed against M/s.Oren Kitchen Appliances Pvt.Ltd. Same was filed through Managing Director, Bhavesh Goswami. It came to be decided on 19/03/2014. On perusal of order passed by the Learned District Forum in consumer complaint no.62/2013, it has become clear that the order was passed against the company, M/s.Oren Kitchen Appliances Pvt.Ltd.. It was not passed against the appellant Bhavesh Goswami personally. Complainants have filed execution application for non-compliance of the order passed by the Learned District Forum against M/s.Oren Kitchen Appliances Pvt.Ltd. Hence, it has become clear that execution application has been filed against the company who has not complied the order passed by the Learned District Forum. We are of the opinion that for non-compliance of the order by the company, the directors of the company are responsible. However, it is the contention of the appellant that he resigned from the company on 06/05/2013. He has filed documents about the same on record. Hence, it has become clear that on the date of passing of order of conviction, he was not director of the company. Hence, he cannot be held responsible for compliance of the order passed by the Learned District Forum. It cannot be said that he wilfully avoided to comply the order passed by the Learned District Forum as he was not director of the company. We are of the opinion that the complainants were required to bring the present directors of the company on record of the execution application and to proceed against them for non-compliance of the order passed by the Learned District Forum against the company. However, it appears that the Learned District Forum without considering all 5 these facts, had wrongly convicted appellant accused under sec.27 of the Consumer Protection Act, 1986 for wilful avoidance of order passed by the Learned District Forum. We are of the opinion that as the appellant accused is not the present director of the company he cannot be held responsible for wilful avoidance of the order passed by the Learned District Forum and cannot be convicted under sec.27 of the Consumer Protection Act, 1986. Hence, we are of the opinion that appeal filed by the appellant is to be allowed by setting aside order passed by the Learned District Forum and he be acquitted. The complainants are at liberty to take necessary action against the present directors of the company who are responsible to comply the order passed by the learned District Forum which was against the company. Hence, we proceed to pass the following order.
ORDER
1) Appeal is hereby allowed.
2) Order passed by the Learned District Forum in Execution Application No.04/2015 is hereby set aside.
3) Appellant accused is hereby acquitted. Bail bond given by the accused shall stand cancelled. Amount of cash surety deposited by the appellant accused be refunded to him.
4) Complainants are at liberty to file execution proceedings in respect of non-compliance of the order passed by the Learned District Forum in consumer complaint 62/2013 against M/s.Oren Kitchen Appliances Pvt.Ltd. against the present directors of the company.6
5) Free certified copy of this order be furnished to the parties forthwith.
Pronounced Dated 7th February, 2018.
[USHA S. THAKARE] PRESIDING JUDICIAL MEMBER [D.R.SHIRASAO] JUDICIAL MEMBER pg