State Consumer Disputes Redressal Commission
M/S Gariba Construction Co vs Malad Dipti Apartment Co-Op Housing ... on 30 September, 2013
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
First Appeal
No. A/10/614
(Arisen out
of Order Dated 23/06/2010 in Case No. 14/2008 of District DCF, South Mumbai)
M/S GARIBA CONSTRUCTION CO
Thro Shri. Bimal Gariba, 807, HIMALAYA
SOCIETY, JUHU LANE,
ANDHERI (W), MUMBAI 400 058.
...........Appellant(s)
Versus
MALAD DIPTI APARTMENT CO-OP HOUSING SOCIETY LTD
KHOT
VILLAGE,
MAMLATDAR WADI, ROAD NO. 5, MALAD (W), MUMBAI 400 064.
...........Respondent(s)
BEFORE:
HON'ABLE MR. JUSTICE R.C.Chavan PRESIDENT
HON'ABLE MR. Dhanraj Khamatkar Member
PRESENT:
Mr.A.H.Ponda-Advocate
......for the Appellant
None
......for the Respondent
ORDER
Per Honble Mr.Justice R.C.Chavan, President Heard Mr.A.H.Ponda-Advocate for the appellant.
None for respondent.
This appeal is directed against the order passed by the District Forum, South Mumbai on Execution Application No.14/2008 on 23/06/2010, whereby the Learned President and Member of the forum convicted the appellant for an offence punishable under section 27 of the Consumer Protection Act, 1986 and sentenced him to suffer two years Simple Imprisonment and to pay fine of `10,000/- and in default to deposit fine, Simple Imprisonment for further period of three months.
The execution application arose out of order dated 17/05/2007 passed in complaint no.243/2006, whereby the forum had directed the appellant to execute conveyance of the entire societys property in favour of the complainant society. Appellant was also directed to take immediate steps to obtain the Occupation Certificate from the Greater Mumbai Municipal Corporation and to hand over the same to the complainant. Appellant filed an appeal bearing no.A/08/537 before this Commission, which was dismissed by this Commission by an order dated 21/06/2008. Appellant seems to have preferred revision before the National Commission bearing no.3303/2008, which was pending when the execution application was filed before the District Forum. District Forum conducted the proceedings of execution application expeditiously on 23/06/2010 and convicted and sentenced the appellant as aforementioned.
Aggrieved thereby, appellant has filed the present appeal.
Today, the appellant has tendered judgement of the National Commission in Revision Petition no.3303/2008 decided on 17/09/2013, whereby National Commission has set aside the order of this Commission in First Appeal no.A/08/537 dated 21/06/2008 and has directed this Commission to rehear the appeal. National Commission has directed the parties to appear before this Commission on 28/10/2013. Thus, the order which was sought to be executed itself does not exist since this Commission would have to hear the appeal against the order passed by the District Forum in consumer complaint no.243/2006 once again. In view of this, the appeal would have to be allowed and the conviction of the appellant and the sentence imposed upon him would have to be set aside, as there could be no question of disobedience of order, which could not have been executed since the appeal against it would be still pending before this Commission.
Ld.Counsel for the appellant drew our attention to a disturbing feature in the proceeding before the District Forum. He pointed out that after the appellants conviction on 23/06/2010, on behalf of the appellant, an application had been made for suspension of sentence under section 389 of Code of Criminal Procedure, 1973. The application was disposed of by the members of the forum by an order dated 24/06/2010 stating that the forum had no jurisdiction to entertain the application and, therefore, the application could not be granted.
Section 27 of the Act which provides for penalty for disobedience of the order of the Fora also provides that for this purpose forum would have powers of Judicial Magistrate First Class for trial of an offence and that for this purpose, the forum would be deemed to be a Judicial Magistrate First Class for the purpose of Code of Criminal Procedure. If that be so, the trial of an offence punishable under section 27 of the Act would be a trial before the Judicial Magistrate First Class to which the provisions of Code would apply. Therefore, provisions of section 389(3) of the Code would also apply, which is relevant for the present purpose and it provides that when a convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court may suspend the sentence of imprisonment and release him on bail. Such orders could be passed after conviction for offences which attract imprisonment for a term not exceeding three years. The penalty prescribed u/sec.27 of the Act is imprisonment which may extend to three years and so is perfectly covered under the provisions of section 389(3) of the Code.
Therefore, all that a convict has to do is to satisfy the Court that he intends to prefer an appeal and then offer bail. Therefore, forum was not right in rejecting an application for suspension of sentence.
We hope and believe that District Forum while dealing with such application in future would bear in mind the importance of liberty of a person and the right which is conferred upon a person to prefer an appeal before the higher forum while dealing with the prayers for suspension of sentence in future.
In the result, we pass the following order:-
ORDER Appeal is allowed.
Order passed by the District Forum on 23/06/2010 holding the appellant guilty of an offence punishable under section 27 of the Act and sentence to suffer two years Simple Imprisonment and to pay fine of `10,000/- and in default to deposit fine, to suffer Simple Imprisonment for further period of three months is set aside.
Bail bond, if any, shall stand cancelled.
Pronounced on 30th September, 2013.
[HON'ABLE MR.
JUSTICE R.C.Chavan] PRESIDENT [HON'ABLE MR.
Dhanraj Khamatkar] Member Ms.