National Consumer Disputes Redressal
Ranjit Kumar Sarkar vs Pew Saha & 3 Ors. on 1 July, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI APPEAL EXECUTION NO. 93 OF 2018 (Against the Order dated 26/06/2018 in Complaint No. 582/2017 of the State Commission West Bengal) 1. RANJIT KUMAR SARKAR S/O. LATE RAMNANDA SARKAR,
DISHANI APARTMENT, LAT NO D/5, 9 R.N. AVENUE, POS TOFFICE - PANSHILA, POLICE STATION-KHARDAH,
NORTH 24 PARGANAS KOLKATA WEST BENGAL 700 112 ...........Appellant(s) Versus 1. PEW SAHA & 3 ORS. W/O. SRI MADHAB SAHA,
M/S. BASANTI ENTERPRISE AT 12, ANJANGARH, POST OFFICE AND POLICE STATION- DUM DUM KOLKATA WEST BENGAL 700 030 2. SRI MADHAB SAHA RESIDING AT 12,
ANJANGARH,
POST OFFICE AND POLICE STAITON DUM DUM KOLKATA WEST BENGAL 700 091 3. APURBA CHANDRA SAHA S/O. LATE ABINASH CHANDRA SAHA,
RESIDING AT 1,
J.M. AVENUE BYE LANE KOLKATA WEST BENGAL 700 112 4. SRI TAPAN KUMAR DHAR S/O. LATE AJIT KUMAR DHAR,
RESIDING AT 1, J.M. AVENUE BYE LANE KOLKATA WEST BENGAL 700 112 ...........Respondent(s)
BEFORE: HON'BLE MR. DR. S.M. KANTIKAR,PRESIDING MEMBER HON'BLE MR. DINESH SINGH,MEMBER
For the Appellant : For the Appellant
Mr. Uday Chandra Jha, Advocate
Mr. Ved Sharma, Advocate For the Respondent : For Respondents No. 1 & 2 Mr. Shivansh Soni, Advocate
Mr. Shajeeb Biswas, Advocate
For Respondents No. 3 & 4
Dated : 01 Jul 2019 ORDER
HON'BLE MR. DINESH SINGH, MEMBER
1. This appeal (execution) has been filed under section 27A of the Act 1986 against the Order dated 26.06.2018 of the State Commission passed on I.A. No. 398 of 2018 in C.C. No. 582 of 2017.
2. On 02.05.2019, after hearing arguments of the learned counsel present, and after perusing the material on record, we had passed the following Order:
Dated: 02-05-2019
ORDER
Heard learned counsel for the execution applicant, learned counsel for respondents no. 1 & 2 and learned counsel for respondents no. 3 & 4. Perused the material on record.
The appeal is partly allowed. The complaint made by the complainant before the State Commission alleging failure and omission to comply with the interim Order of the State Commission shall be treated as a complaint as per its meaning contained in section 27 of the Act 1986. The State Commission shall proceed with it as per the law in accordance with the procedure prescribed in the Cr. P. C. for trial of summons - cases.
Reasoned judgment to follow.
Meanwhile, till four weeks from the date of pronouncement of the reasoned judgment, the status quo as obtaining on date (i.e. as on 02.05.2019) on the subject property shall be maintained by all parties and persons concerned. The principal onus of informing about this Order to all persons concerned shall be on the respondents no. 1 & 2 as well as on respondents no. 3 & 4.
And let the Order be 'dasti' in addition.
3. We are giving our reasons hereinafter.
4. For appreciation of the issues raised in the appeal (execution), we may first quote the State Commission's impugned Order in its entirety:
Dated: 26 Jun 2018 ORDER Order No. 07 Both the parties are represented through their Ld. Advocates. In accordance with the previous order, the record is taken up for disposal of the application filed by the complainant being IA/398/2018 whereby the complainant has made following prayers, viz.- (a) an order may be passed directing the opposite parties to show cause as to why they should not be proceeded against under the provisions of Section 27 of the Consumer Protection Act, 1986 for violation of the order dated August 16, 2017 passed by this Hon'ble Commission; (b) an appropriate order may be passed by the Hon'ble Commission drawing up the proceeding against the opposite parties under Section 27 of the Consumer Protection Act, 1986 for violation of the order dated August 16, 2017 passed by this Hon'ble Commission an appropriate order of sentence may be passed in terms of law; (c) an order may be passed directing taking over of the possession of the flat and also the garage mentioned in the Schedule 'A' and Schedule 'B' of the instant application by the appropriate authority of the state being of the authorities of the local police station being Khardah Police Station or by any other authority or by Special Officer appointed by this Hon'ble Commission empowering him / her to take possession of the properties being the flat and garage as mentioned in Schedule 'A' and Schedule 'B' with or without police help forthwith; (d) an interim order may be passed in terms of prayer 'c' above; (e) any other or further order/orders may be passed as this Hon'ble Commission may deem fit and proper.
On perusal of materials on record and having heard the Ld. Advocates appearing for the respective parties, it emerges that the applicant herein being complainant lodged the complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, 'the Act') against the proprietress of a sole proprietorship firm namely, 'Basanti Enterprise' (opposite party no. 1), her husband (opposite party no. 2) and the landowners (opposite party nos. 3 & 4) on the allegation of deficiency in services on the part of them for non-delivery of possession, non-execution and registration of Deed of Conveyance in respect of flat measuring about 1200 sq. ft. super built-up area on the 3rd Floor and one garage space measuring about 220 sq. ft. on the Ground Floor at Municipal Holding No. 1, J. M. Avenue Bye Lane, P.S.- Khardah, Kolkata - 700112, Dist.- North 24 Parganas within the local limits of Panihati Municipality. On the date of admission of complaint i.e. on 16.08.2017 one application under Section 13(3B) of the Act was moved and this Commission directed the opposite parties from selling and disposing of the flat and garage as mentioned in Schedules - 'A' & 'B' respectively till the next date i.e. on 16.02.2018. On 16.02.2018 the opposite parties entered appearance through their Ld. Advocate by filing a Vakalatnama and on that date the said interim order was extended till the next date i.e. on 15.03.2018 and the record was transferred from the Hon'ble 1st Bench to this Bench for disposal. On 15.03.2018 when the record was received on transfer, the written version filed by O.Ps. and the same was accepted and next date was posted on 27.07.2018 for filing evidence on affidavit by the complainant and by the said order, the interim order, as passed hereinbefore, was directed to be continued till the next date.
In the meanwhile, the instant application has been filed with a serious allegation against the opposite parties that by violating the said interim order they have executed a Deed of Conveyance on 14.03.2018 in favour of two persons viz.- Shri Harihar Shrestha and Smt Tara Shrestha.
In this backdrop, the instant application has been filed.
Now, Section 27 of the Act deals with the penalties for violation of the order passed by a Fora constituted under the Act. Section 27(1) provides-
"(1) Where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person or complainant shall be punishable with imprisonment for a term which shall not be less than one-month but which may extend to three years, or with fine which shall not be less than two thousand rupees but which may be extend to ten thousand rupees, or with both".
The complainant / applicant did not make any prayer for attachment of the property in accordance with Section 25(1) of the Act rather invoked the provision of Section 27 of the Act.
The opening part of Section 27 of the Act requires a trader or a person against whom a complaint is made to comply with the order passed by a Consumer Forum. Either failure or omission to do so ipso facto render him/her to be liable to be punished with either imprisonment or fine or both. On such failure or omission, a Consumer Forum then steps in to bring into play quasi-criminal action for peremptory enforcement of orders.
Thus, the true purpose and scope of Section 27 of the Act to lay a statutory duty on the part of opposite party against whom an order has been passed to comply therewith expeditiously. Failure to comply with the same equally casts a duty on the part of a Fora constituted under the Act to enforce the compliance under the conferred sanction of imprisonment and fine, if necessary.
Needless to say, an application under Section 27 of the Act is maintainable by a Decree Holder against the Judgment Debtor, in spite of the fact that a remedy by way of execution is available to him under Section 25 of the Act. However, the provision of Section 27 being quasi-criminal in nature, before imposing any penalty the delinquent must be given opportunity to substantiate their defence and in this regard a separate execution proceeding should be held.
Therefore, the application being IA/398/2018 stands disposed of with an observation that the complainant shall have liberty to initiate an Execution Application as per Regulation 8(2) of Consumer Protection Regulations, 2005.
Since, a Consumer Complaint can only be disposed of after reception of evidence as per provision of Section 13(2)(b) of the Act, I fix 17.08.2018 for evidence on affidavit by the complainant or for hearing IA, if any, for amendment of petition of complaint under the changing circumstances.
(State Commission's impugned Order) (emphasis supplied by us)
5. In the final hearing on 02.05.2019, learned counsel for the appellant, Mr. Uday Chandra Jha, Advocate, argued and challenged the following extract of the State Commission's Order:
Therefore, the application being IA/398/2018 stands disposed of with an observation that the complainant shall have liberty to initiate an Execution Application as per Regulation 8(2) of Consumer Protection Regulations, 2005.
(extract from State Commission's impugned Order)
6. The question before us is whether a complaint made under section 27 of the Act 1986 alleging failure or omission to comply with an interim Order of the State Commission can be disposed of by the State Commission with an observation that the complainant shall have liberty to initiate an Execution Application as per Regulation 8(2) of the Consumer Protection Regulations, 2005.
7. Here we may first quote the relevant provisions of the Act 1986 and the Regulations 2005:
Section 2(1) (d):
(d) "consumer" means any person who,-- (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;
Explanation.--For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;
Section 2(1) (b):
(b) "complainant" means-- (i) a consumer; or (ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or (iii) the Central Government or any State Government; or (iv) one or more consumers, where there are numerous consumers having the same interest; (v) in case of death of a consumer, his legal heir or representative; who or which makes a complaint; Section 2(1)(c): (c) "complaint" means any allegation in writing made by a complainant that-- (i) an unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider; (ii) the goods bought by him or agreed to be bought by him suffer from one or more defects;
(iii) the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect;
(iv) a trader or the service provider, as the case may be, has charged for the goods or for the services mentioned in the complaint, a price in excess of the price--
(a) fixed by or under any law for the time being in force; (b) displayed on the goods or any package containing such goods; (c) displayed on the price list exhibited by him by or under any law for the time being in force; (d) agreed between the parties;
(v) goods which will be hazardous to file and safety when used are being offered for sale to the public,--
(a) in contravention of any standards relating to safety of such goods as required to be complied with, by or under any law for the time being in force;
(b) if the trader could have known with due diligence that the goods so offered are unsafe to the public;
(vi) services which are hazardous or likely to be hazardous to life and safety of the public when used, are being offered by service provider which such person could have known with due diligence to be injurious to life and safety;
with a view to obtaining any relief provided by or under this Act;
(e) "consumer dispute" means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint;
19. Appeals.--Any person aggrieved by an order made by the State Commission in exercise of its powers conferred by sub-clause (i) of clause (a) of section 17 may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed:
Provided that the National Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period:
Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the State Commission, shall be entertained by the National Commission unless the appellant has deposited in the prescribed manner fifty per cent. of the amount or rupees thirty-five thousand, whichever is less.
Section 24:
24. Finality of orders.--Every order of a District Forum, the State Commission or the National Commission shall, if no appeal has been preferred against such order under the provisions of this Act, be final.
25. Enforcement of orders of the District Forum, the State Commission or the National Commission.--(1) Where an interim order made under this Act is not complied with, the District Forum or the State Commission or the National Commission, as the case may be, may order the property of the person, not complying with such order to be attached.
(2) No attachment made under sub-section (1) shall remain in force for more than three months at the end of which, if the non-compliance continues, the property attached may be sold and out of the proceeds thereof, the District Forum or the State Commission or the National Commission may award such damages as it thinks fit to the complainant and shall pay the balance, if any, to the party entitled thereto.
(3) Where any amount is due from any person under an order made by a District Forum, State Commission or the National Commission, as the case may be, the person entitled to the amount may make an application to the District Forum, the State Commission or the National Commission, as the case may be, and such District Forum or the State Commission or the National Commission may issue a certificate for the said amount to the Collector of the district (by whatever name called) and the Collector shall proceed to recover the amount in the same manner as arrears of land revenue.
27. Penalties.--(1) Where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person or complainant shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousands rupees but which may extend to ten thousand rupees, or with both:
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the District Forum or the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of the first class for the trial of offences under this Act, and on such conferment of powers, the District Forum or the State Commission or the National Commission, as the case may be, on whom the powers are so conferred, shall be deemed to be a Judicial Magistrate of the first class for the purpose of the Code of Criminal Procedure, 1973 (2 of 1974).
(3) All offences under this Act may be tried summarily by the District Forum or the State Commission or the National Commission, as the case may be.
27A. Appeal against order passed under section 27.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an appeal under section 27, both on facts and on law, shall lie from--
(a) the order made by the District Forum to the State Commission; (b) the order made by the State Commission to the National Commission; and (c) the order made by the National Commission to the Supreme Court.
(2) Except as aforesaid, no appeal shall lie to any court from any order of a District Forum or a State Commission or the National Commission.
(3) Every appeal under this section shall be preferred within a period of thirty days from the date of an order of a District Forum or a State Commission or, as the case may be, the National Commission:
Provided that the State Commission or the National Commission or the Supreme Court, as the case may be, may entertain an appeal after the expiry of the said period of thirty days, if, it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days.
Regulation 8(2):
8. Nomenclature to be given to the complaints, appeals and revisions petitions.--
(2) An appeal shall be referred to as F.A., Revision Petition as R.P., Execution Application as E.A, Transfer Application T.A. and Review as R.A. containing the number and the year of filing.
8. Execution proceedings, to execute an Order that has attained finality within the meaning of section 24 of the Act 1986 ('final Order'), whether for 'enforcement' under section 25(3) or for 'penalties' under section 27(1), are distinctively different from adjudication of a 'complaint' as defined under section 2(1)(c).
9. The question before us relates to a complaint made under section 27 ('penalties') alleging failure or omission to comply with an order of the State Commission (an interim order in this case).
10. Section 27(1) of the Act 1986 does not distinguish between an interim Order or a 'final Order', it speaks of "any order" ("fails or omits to comply with any order").
That is to say, failure or omission to comply with an interim Order, too, attracts the 'penalties' provided under section 27(1).
11. The nomenclature 'Execution Application as E.A.', contained in Regulation 8(2) of the Regulations 2005, relates to execution of a 'final Order' i.e. an Order that has attained finality within the meaning of section 24. It does not relate to compliance of an interim Order.
12. It may inter alia be seen, so as to clearly note the distinct difference between [a] a 'complaint' defined under section 2(1)(c) and [b] a complaint made under section 27 alleging failure or omission to comply with an order, that an appeal against an order of the State Commission passed in the adjudication of a 'complaint' lies under section 19 (Appeals), whereas an appeal against an order of the State Commission passed in penal proceedings under section 27 does not lie under section 19 (Appeals) but lies under section 27 A (Appeal against an order passed under section 27).
13. Here, the complaint, made through the I.A. No. 398 of 2018 in C.C. No. 582 of 2017 before the State Commission, is not concerned with a 'final Order'. It is concerned with an interim Order.
Further, it is not a 'complaint' as defined under section 2(1)(c).
A complaint made under section 27 alleging failure or omission to comply with an order of the State Commission (an interim Order in this case) is distinctively different from a 'complaint' within the meaning of section 2(1)(c) of the Act 1986.
14. An interim Order is not got executed by filing Execution Application as per the nomenclature contained in Regulation 8(2) of the Regulations 2005.
15. An interim Order is in effect in the nature of interim protection during the pendency of the adjudication of the case. It has to be complied with. Failure or omission to comply with it attracts the 'penalties' under section 27(1).
16. In accordance with the provision of section 27(2), the State Commission has the power of a judicial magistrate of the first class for the trial of offences under the Act 1986. The relevant provisions of the Cr.P.C. have to be adhered to. The maximum punishment prescribed under section 27(1) is imprisonment upto three years or fine upto Rs. 10,000/- or both. Though section 27(3) speaks of "tried summarily", section 262(2) of the Cr.P.C.("No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter.") in Chapter XXI SUMMARY TRIALS of the Cr.P.C. necessitates that the trial be conducted under Chapter XX TRIAL OF SUMMONS-CASES BY MAGISTRATES.
17. In the light of the above discussion, we find that the State Commission has erred in its disposal of the I.A. No. 398 of 2018 (whereby a complaint was made under section 27 alleging failure and omission to comply with an interim Order of the State Commission).
That is, the following extract of the State Commission's Order is erroneous:
Therefore, the application being IA/398/2018 stands disposed of with an observation that the complainant shall have liberty to initiate an Execution Application as per Regulation 8(2) of Consumer Protection Regulations, 2005.
(extract from State Commission's impugned Order)
18. The above-quoted extract of the State Commission's impugned Order is hereby set aside.
19. The complaint made by the complainant before the State Commission alleging failure and omission to comply with the interim Order of the State Commission shall be treated as a complaint as per its meaning contained in section 27 of the Act 1986. The State Commission shall proceed with it as per the law in accordance with the procedure prescribed in the Cr. P. C. for trial of summons-cases.
20. The following interim protection provided in the daily Order dated 02.05.2019 is also confirmed:
Meanwhile, till four weeks from the date of pronouncement of the reasoned judgment, the status quo as obtaining on date (i.e. as on 02.05.2019) on the subject property shall be maintained by all parties and persons concerned. The principal onus of informing about this Order to all persons concerned shall be on the respondents no. 1 & 2 as well as on respondents no. 3 & 4.
21. So disposed.
...................... DR. S.M. KANTIKAR PRESIDING MEMBER ...................... DINESH SINGH MEMBER