National Consumer Disputes Redressal
Vasant Janardan Aher, Ex-Additional ... vs Shivajirao Ambajirao Kawale & Anr. on 17 October, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 188 OF 2017 (Against the Order dated 22/09/2016 in Appeal No. 104/2011 of the State Commission Maharashtra) 1. VASANT JANARDAN AHER, EX-ADDITIONAL DIRECTOR EX-ADDITIONAL DIRECTOR M/S. SAWALI HOME MAKERS PVT. LTD., R/AT BUNGALOW NO. 9, KAPIL MALHAR BANER ROAD, PUNE-411007 MAHARASHTRA ...........Petitioner(s) Versus 1. SHIVAJIRAO AMBAJIRAO KAWALE & ANR. R/O. AT KAVALE COMPLEX, JAWARGI MAIN ROAD, DODUTAINAGAR, GULBARGA- 535103 KARNATAKA 2. M/S. SAWALI HOME MAKERS PVT. LTD., SURVEY NO. 26/7, D.P. ROAD, VISHAL NAGAR, PIMPLE NILAKHA PUNE-411027 MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER For the Petitioner : Mr. Uday B. Wavikar, Advocate with Mr. Vikas Nautiyal, Advocate For the Respondent :
Dated : 17 Oct 2017 ORDER Dr. S. M. KANTIKAR, MEMBER
1. The above said Execution Revision Petitions have been filed under Section 21(b) of the Consumer Protection Act, 1986 against the order dated 22.9.2016 passed in EA/15/2 in Consumer Complaint Nos.CC/11/103 and EA/15/3 in CC/11/104 by Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, 'the State Commission').
2. This order shall decide two Execution Revision Petitions filed by Mr. Vasant Janardan Aher, the Petitioner, then Director of the Company. The State Commission passed the final order in C.C No.103 of 2011 and C.C. No.104 of 2011 on 22.09.2016 and gave option to the Opposite Party to refund Rs.25,00,000/- along with interest @10% P.A. w.e.f 06.12.2008 till realization, failing which penal interest @ 6% P.A. was also chargeable, also allowed compensation of Rs.10,000/-for mental agony and Rs.10,000/- as cost. In pursuant to the final order the Opposite Party failed to comply the award. Therefore, the State Commission decided the Execution Applications (EA No.14/2 and 15/2) and issued the recovery certificate to be enforced from Collector, Pune to recover the amount from the Company and/or Director.
3. We have heard the learned counsel for the Petitioner. He submitted that, it is well settled law that the company is a legal entity distinct from share-holders as well as its Directors and as such no proceeding can be taken against the Directors of the company for recovery of any amount whatsoever due from the Company. The counsel further submitted that considering the effect of incorporation of the company and its independent juristic existence, the former director of the company cannot be held responsible for the payment of liabilities, if any, of the company in absence of any specific provision. The petitioner also prayed for deletion of his name from the said execution application as his name had been erroneously included by the complainant. The counsel also submitted that calculation submitted in the application was not proper and Director/Petitioner is not liable to pay any amount in personal capacity.
4. The crux of the matter is that whether the Petitioner--Vasant Janardan Aher was personally liable in both execution applications, as he had already retired from the Company on 13.09.2009. In the instant case, the Company was under control of the Director, therefore, director cannot escape from the liability.
5. A perusal of the impugned order recorded by the State Commission indicates that the State Commission directed as follows:
"Under these circumstances, the amount due from the developer since unpaid despite our inquiry in the matter, we are satisfied that in view of the statement recorded before us of Shri Vasant Janardan Aher, the developer company is answerable to comply with the final order and amount with interest as above. We therefore issue recovery certificate to be enforced through Collector Pune so that amount is recoverable from company and/or directors thereof pursuant to the final order in complaint case No. 103/2011 payable to Smita Shivajirao Kawale award holder of the case. Accordingly Collector Pune shall enforce final order for recovery of sum of Rs. 25 lakh, interest, damages and penal interest as awarded in total sum of Rs.57,99,283/-. Copy of the final order with copy of the statement of claim and copy of statement made by Vasant Janardan Aher-Director of the company - Savali Home Makers shall be sent to the office of Collector Pune for to enforce the award against opponent in view of Section 25 of the Consumer Protection Act, 1986. Recovery Certificate shall be enforced in the same manner as for recovery of land revenue. Accordingly proceeding is disposed of.
6. The above order indicates that the State Commission directed the recovery certificate to be issued to the Collector of Pune for execution of the final award in the consumer complaint No. 103 of 2011 and directed that the amount be recovered from the company and/or directors in pursuant to the final orders in the consumer complaint.
7. We do not find anything perverse or irregular in the impugned order, because the final orders passed in the consumer complaint have to be executed by taking recourse to proceedings under Section 25 or Section 27 of the Consumer Protection Act, 1986 or both. The matter has already been agitated till the level of Hon'ble Supreme Court and final orders have been passed, which need to be executed. It shall, therefore, be the duty of the Collector, Pune to ensure that the amount in question is recovered from the persons concerned with the operations/affairs of the company in terms of the impugned order, whether they are working as Directors of the said company or otherwise. We do not agree with the contention taken by the petitioner in the grounds of revision petition that the Directors of a company are not responsible for payment of the amounts in question. The Directors represent the top management of a company and are in a position to influence the decision taken by the said company. In case, the petitioner feels that he has no concern with the execution of the said order, he is at liberty to apprise the Collector about the names and particulars of the persons responsible for the payment of the amount in question.
8. We, therefore, do not find any illegality or irregularity or any jurisdictional error in the order passed by the State Commission, which seems to have been made after a rational consideration of the facts and circumstances on record.
9. Both the revision petitions are, therefore, ordered to be dismissed and the impugned order is upheld. There shall be no order as to costs.
...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER