State Consumer Disputes Redressal Commission
Rabin Pal vs Animesh Sanyal on 27 January, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/1035/2013 (Arisen out of Order Dated 20/08/2013 in Case No. EA/38/2013 of District Howrah) 1. Rabin Pal M/s Paleo Water System, 19, Buxara 1st Bye Lane, P.S. Shibpur, Dist. - Howrah, Pin - 711 110. ...........Appellant(s) Versus 1. Mr. Animesh Sanyal M/s. Cripton Enterprise, 5/1/2, Brojonath Lahiri Lane, Buxarah, P.S. - Shibpur, Dist. Howrah, Pin - 711 110. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MRS. MRIDULA ROY MEMBER HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Appellant: Mr. Malay Bhattacharyya, Advocate For the Respondent: Mr. Sibaji Sankar Dhar, Advocate ORDER
27/01/15 HON'BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT This Appeal u/s 27A of the C. P. Act, 1986 is directed against the order dated 20/08/13 in Execution Case No.38 of 2013 whereby the Learned District Forum, Howrah passed the following order.
"That the complaint being no.HDF 171 of 2012 stands dismissed u/s 26 of the C. P. Act, 1986 as it is frivolous and vexatious. The instant Execution Case being no.38 of 2013 automatically looses its force as the genesis of the same i.e., the complaint case no.171 of 2012 stands dismissed.
The Complainant Rabin Pal be directed to pay a cost of Rs.10,000/- for practising fraud upon legal institution failing legal consequences shall follow. If such cost is realized 50% i.e., Rs.5000/- be paid to the O.P. Animesh Sanyal and 50% i.e., Rs.5000/- be deposited at the Consumer Welfare Fund."
The Dhr has preferred this Appeal. It has been submitted by the Learned Counsel for the Dhr that the final order was passed by the Learned District Forum on 10/04/13 allowing the complaint and directing the OP to do the repair work as per quotation dated 16/10/07 and physically deliver the rolling shutter and grill-gate in question to the Complainant within 30 days from the date of order, in default to pay Rs.50/- per day till actual delivery. The Complainant was also awarded an amount of Rs.3,000/- as compensation and Rs.1,000/- as litigation cost. It is submitted by the Learned Counsel for the Dhr that the repair work was not done and, as such, the execution case was filed before the Learned District Forum. It is submitted that in the execution case the Learned District Forum by the order impugned dismissed the complaint which had been already allowed and further observed that the complaint was frivolous and vexatious one. It is submitted that the Learned District Forum further directed the Complainant/Dhr to pay cost of Rs.10,000/- for practising fraud and upon realisation of such cost, 50% thereof be paid to the Jdr and 50% be deposited with the SCWF. It is contended that the Executing Court cannot go behind the decree and the OP of the complaint did not prefer any Appeal.
It is submitted by the Learned Counsel for the Respondent/Jdr that the Complainant gave an order for rolling shutter, but it could not be installed due to quarrel between the brothers of the Complainant. It is contended that in the execution case Complainant's brother Monoj Pal appeared and stated that a Civil Suit was pending between Monoj Pal and Subrata Pal vs. Shefali Roy. It is submitted that I.C., Shibpur P.S. filed a report before the Learned District Forum and on the basis of such report held that Smt. Pratima Pal, Monoj Pal and Subrata Pal were in possession of the premises and the Complainant was never in possession of the same since long. It is submitted that Rabin Pal's mother filed a criminal case against Rabin Pal and the absconding report was there. It is submitted that the rent receipts filed by the Complainant were forged. The Learned Counsel has also referred to the W.V. filed in the complaint case and submitted that since a difficult and disputed question of fact was involved, the Consumer Court could not try in a summary way. The Learned Counsel has submitted that Monoj Pal was neither impleaded in the complaint case nor in the execution case. In this connection Learned Counsel has referred to the decisions reported in 2014 (3) CPR 573 (SC) [Synco Industries vs. State Bank of Bikaner and Jaipur & Ors.] wherein it has been held that complex matters cannot be adjudicated by the Consumer Forum. The Learned Counsel has also referred to the decisions reported in 2013 (2) CPJ 176 [S. Girija Selva Raj vs. Proprietor Sri Swarnambigai of India Travel Co.]; 2014 (1) CPJ 465 [Vipin Garg & Ors. vs. Union of India & Ors.].
We have heard the submission made by both sides. Evidently, the complaint case no.171 of 2012 was allowed by the Learned District Forum, Howrah on 10/04/13 with the direction upon the OP to do the repair work in connection with the rolling shutter and grill-gate. The execution case no.38 of 2013 was filed on 13/05/13. Vide order no.5 in the execution case, the Learned District Forum recorded that the Learned Advocate appeared for Monoj Pal, the full brother of Rabin Pal who claimed himself to be owner of the house. Admittedly, Monoj Pal who claims himself to be brother of Rabin Pal was not impleaded either in the complaint case or the execution proceeding. At the very outset it appears that the final order passed in the complaint case on 10/04/13 was reversed by the Learned District Forum in execution case no.38 of 2013 whereby the complaint case was dismissed. Admittedly, OP of the complaint did not prefer any Appeal against the final order passed in the said case. Therefore, the final order passed in the complaint case attained finality. It is the settled principle of law that the Executing Court cannot go behind the decree. The Learned District Forum, therefore, had no jurisdiction to reverse the final order passed in the complaint case and thereby directing the Complainant to pay the cost of Rs.10,000/- holding that the complaint was frivolous and vexatious.
Secondly, it appears that there is dispute and pending Civil Suit as to the ownership of the premises in question. The Jdr contested the complaint case and filed W.V. wherein it has been stated that Complainant's brother Monoj Pal filed a criminal case against the Complainant u/s 144 Cr.P.C. regarding the disputed property by M.P. Case No.339 of 2005 and M.P. Case No.921 of 2010 and that the OP had no fault in the matter of delivery. It has further been stated in the W.V. that the Complainant's brother filed writ petition before the Hon'ble High Court, Calcutta and, therefore, the OP was obstructed by the said Monoj Pal, brother of Complainant from installing the rolling shutter and grill-gate. It has been stated that the OP went to fix up the gate, but could not fix it up due to quarrel between the Complainant and his brother and after the lapse of 5 years the gate got destroyed and converted into scrap iron. In view of the circumstances aforesaid, we are of the view that the final order passed in the complaint case cannot be executed and, therefore, the execution case fails.
The impugned order is set aside. The execution case is dismissed. The Appeal is disposed of.
[HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MRS. MRIDULA ROY] MEMBER [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER