State Consumer Disputes Redressal Commission
Jarnail Singh vs Emerging Valley Private Ltd. on 1 August, 2022
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH M.A. No. in EA/474/2017 : 393 of 2022 Date of Institution : 26.05.2022 Date of Decision : 01.08.2022 Jarnail Singh S/o Darshan Singh, r/o 143, Bhai Gurditta Nagar, Basti Sheikh, Jalandhar. ...Non-applicant(s)/Decree Holder(s) VERSUS M/s Emerging Valley Pvt. Ltd. having its Corporation Office at SCO No.46 47, 1st Floor, Sector 9-D, near Matka Chowk, Madhya Marg, Chandigarh, through its Director/Managing Director. .....Applicant/Judgment Debtor Present:- Sh. Sunil Toni, Advocate for the applicant (Sh. Gurpreet Singh Sidhu) alongwith applicant in person. Sh.Jagpal Singh Dhupar, Advocate for the non-applicant/Decree Holder alongwith Sh. Jarnail Singh, non-applicant-decree holder in person. =============================================================== M.A. No. in EA/1/2018 : 395 of 2022 Date of Institution : 26.05.2022 Date of Decision : 01.08.2022 Gurpreet Singh S/o Harbans Singh, Rajwant Kaur w/o Gurpreet Singh, Both residents of H.No.303, Phase-VI, SAS Nagar, Mohali. ...Non-applicant(s)/Decree Holder(s)s VERSUS M/s Emerging Valley Pvt. Ltd. having its Corporation office at SCO No.46-47, 1st Floor, Sector 9-D, near Matka Chowk, Madhya Marg, Chandigarh through its Managing Director. ......Applicant/Judgment Debtor Present:- Sh. Sunil Toni, Advocate for the applicant (Sh. Gurpreet Singh Sidhu) alongwith applicant in person. Sh. Tarurag Gaur, Advocate for the non-applicant-decree holder. =============================================================== M.A. No. in EA/143/2019 : 423 of 2022 Date of Institution : 26.05.2022 Date of Decision : 01.08.2022 Samundri Devi w/o Babu Lal, r/o Flat No.101, Tower No.11, Royale Estate, Zirakpur, Punjab. ...Non-applicant(s)/Decree Holder(s) VERSUS M/s Emerging India Housing Corp Pvt. Ltd. having its registered office at SCO No.46-47, 1st Floor, Sector 9-D, near Matka Chowk, Madhya Marg, Chandigarh. M/s Emerging Valley Pvt. Ltd. having its registered office at SCO No.46 47, 1st Floor, Sector 9-D, near Matka Chowk, Madhya Marg, Chandigarh. M/s Emerging India Real Assets having its registered office at SCO No.46-47, 1st Floor, Sector 9-D, near Matka Chowk, Madhya Marg, Chandigarh. Gurpreet Singh Sidhu, Managing Director, M/s Emerging India Housing Corp Pvt. Ltd. having its registered office at SCO No.46-47, 1st Floor, Sector 9-D, near Matka Chowk, Madhya Marg, Chandigarh. .....Applicant/Judgment Debtor Present:- Sh. Sunil Toni, Advocate for the applicant (Sh. Gurpreet Singh Sidhu) alongwith applicant in person. Sh. Sudhanshu Makkar, Advocate for the non-applicant-decree holder alongwith Sh.Babu Lal, husband of the Decree Holder. =============================================================== M.A. No. in EA/62/2019 : 427 of 2022 Date of Institution : 26.05.2022 Date of Decision : 01.08.2022 Subodh Brahmi s/o Sh.Hardev Brahmi, r/o House No.1228, Top Floor, Sector 22-B, Chandigarh. ...Non-applicant(s)/Decree Holder(s) VERSUS Siswan Paradise Private Limited, through its Managing Director/Director/Authorized Signatory, SCO 46-47, First Floor, Sector 9-D, near Mattka Chowk, Madhya Marg, Chandigarh-160009. (Old Address:- Siswan Paradise Private Limited, SCO No.28-29-30, Top Floor, Sector 09, Madhya Marg, Chandigarh). Emerging India Real Assets (P) Ltd., SCO 46-47, First Floor, Sector 9-D, Chandigarh through its Managing Director/Director/Authorized Signatory. Emerging India Housing Corporation (P) Ltd., SCO No.28-29-30, Top Floor, Sector 09, Madhya Marg, Chandigarh through its Managing Director/ Director/Authorized Signatory. .....Applicant/Judgment Debtor Present:- Sh. Sunil Toni, Advocate for the applicant (Sh. Gurpreet Singh Sidhu) alongwith applicant in person. Sh. Gaurav Bhardwaj, Advocate for the non-applicant-decree holder. =============================================================== M.A. No. in EA/143/2019 : 425 of 2022 Date of Institution : 26.05.2022 Date of Decision : 01.08.2022 Professor Nalini Pathania d/o Janardhan Singh Pathania R/o 110, Pathania House, Purani Mandi, Jammu (J&K). ...Non-applicant(s)/Decree Holder(s) VERSUS M/s Emerging Valley Pvt. Ltd. through its Director having its Corporate Office at SCO No.46-47, 1st Floor, Sector 9-D, near Matka Chowk, Madhya Marg, Chandigarh through its Authorized Representative. .....Applicant/Judgment Debtor Present:- Sh. Sunil Toni, Advocate for the applicant (Sh. Gurpreet Singh Sidhu) alongwith applicant in person. Sh. Raman K.Sharma, Advocate for the non-applicant-decree holder. =============================================================== M.A. No. in EA 184/2018 : 429 of 2022 Date of Institution : 26.05.2022 Date of Decision : 01.08.2022 Sukhdev Singh Sidhu s/o Jora Singh, r/o VPO Charik, District Moga, now at H.No.1183, Gali No.3, Jujhar Nagar, near Nimbuan Wala Bagh, Moga. ...Non-applicant(s)/Decree Holder(s) VERSUS M/s Emerging India Housing Corp Pvt. Ltd. having its Managing Director having its Corporate Office at SCO No.46-47, 1st Floor, Sector 9-D, near Matka Chowk, Madhya Marg, Chandigarh. Gurpreet Singh Sidhu, Managing Director, M/s Emerging India Housing Corp Pvt. Ltd. having its Corporate Office at SCO No.46-47, 1st Floor, Sector 9-D, near Matka Chowk, Madhya Marg, Chandigarh. .....Applicant/Judgment Debtor Present:- Sh. Sunil Toni, Advocate for the applicant (Sh. Gurpreet Singh Sidhu) alongwith applicant in person. Sh. Hem Raj Bhardwaj, Advocate for the non-applicant-decree holder. =============================================================== M.A. No. in EA/158/2018 : 400 of 2022 Date of Institution : 26.05.2022 Date of Decision : 01.08.2022 Roshan Kumar S/o Lal Chand Resident of Aggarwal Book Depot Nabha Gate Sangrur. Pooja Garg W/O Roshan Kumar Resident of Aggarwal Book Depot Nabha Gate Sangrur. ...Non-applicant(s)/Decree Holder(s) VERSUS Emerging India Housing Corporation Pvt. Ltd. through its Managing Director having its Corporate office at SCO No.46-47, 1st Floor, Sector 9-D, near Matka Chowk, Madhya Marg, Chandigarh. Gurpreet Singh Sidhu, Managing Director, Emerging India Housing Corporation office at SCO No.46-47, 1st Floor, Sector 9-D, near Matka Chowk, Madhya Marg, Chandigarh. ......Applicants/Judgment Debtors Present :- Sh. Sunil Toni, Advocate for the applicant (Sh. Gurpreet Singh Sidhu) alongwith applicant in person. Sh. Gaurav Bhardwaj, Advocate for the non-applicant-decree holder. =============================================================== BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT. MRS.PADMA PANDEY, MEMBER.
MR.RAJESH K. ARYA, MEMBER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT Since, the issues involved in these cases, except minor variations, here and there, of law and facts are the same, therefore, by this order, we would like to dispose of the above captioned seven applications filed by the applicant-Sh.Gurpreet Singh Sidhu, Managing Director/Director of Emerging India Housing Corporation Private Limited/Emerging Valley Private Limited (in short the applicant), for de-attachment of his properties.
The facts are culled out from execution application bearing no.474 of 2017 titled as Jarnail Singh Vs Emerging Valley Pvt. Ltd. and another. This execution application (474 of 2017) has been filed by the decree holder/complainant-Jarnail Singh, under Section 27 of the Consumer Protection Act, 1986, for taking criminal action against the applicant-Sh.Gurpreet Singh Sidhu, Managing Director of the company, for non compliance of order passed by this Commission in main consumer complaint bearing no.37 of 2017. Similar execution applications have been filed in the remaining cases, referred to above. In this case (474 of 2017), the applicant was declared proclaimed offender on 18.12.2019. He was also declared proclaimed offenders in remaining cases on different dates. A table is given below to depict the dates when he was declared proclaimed and report of Tehsildar vide which the properties stood attached:-
S.N. Case No. Case Title Date of P.O. declared Report of Tehsildar vide which properties attached 1 EA/474/2017 (MA/393/2022) Jarnail Singh Vs. Emerging Valley Pvt. Ltd.
18/12/2019 Vide Rapat No.193 Dated 15.02.2019 Vide Rapat Nos. 662, 663, 664 and 665 dated 31.01.2019 Memo No.1030 dated 07.10.2019 Letter No.629 dated 22.07.2019 2 EA/1/2018 (MA/395/2022) Gurpreet Singh Vs. Emerging Valley Pvt. Ltd.
18/12/2019 3 EA/143/2019 (MA/423/2022) Samundari Devi Vs. M/s Emerging India Housing 13/11/2019 5 EA/62/2019 (MA/427/2022) Subodh Brahmi Vs. Siswan Paradise 07/08/2020 6 EA/472/2017 (MA/425/2022) Prof. Dr. Nalini Pathania Vs. Emerging Valley 09/01/2020 7 EA/184/2018 (MA/429/2022) Sukhdev Singh Vs. Emerging 09/01/2020 8 EA/158/2018 (MA/400/2022) Roshan Kumar Vs. Emerging India Housing 09/01/2020 Initially, this Commission in Jarnail Singh's case, vide order dated 01.05.2018, directed attachment of property-Emerging Heights-IV-Emerging Valley Project at Landran Banur Road, Mohali, Punjab and also the articles lying at SCO No.46/47, 1st Floor, Sector 9-D, Madhya Marg, Chandigarh. The said property was attached on 23.5.2018 but later on it was ordered to be vacated, vide order dated 30.05.2018, relevant contents of which are reproduced hereunder:-
"......Directions are also issued to the District Collector, UT, Chandigarh to attach articles lying in the office of the Company situated in SCO No.46-47, First Floor, Sector 9-D, Madhya Marg, Chandigarh as per provision of Punjab Land Revenue Act.and the Company be restrained from using the said office. The District Collector, Chandigarh is further directed to depute some responsible officer to get the order complied.
Copy of the order be sent immediately to the officer concerned through a Special Messenger, for immediate compliance and report be submitted on the next date of hearing.
We make it very clear that if by the next time, at least 50% of the payment due is not paid to the decree holder, the entire project of the Company situated at Banur-Landra Road, Mohali will be ordered to be attached.
At the time of hearing, it was intimated by the decree holder that one Sh. Harminder Singh Behl, who is an employee of the Company, has made an attempt to harass him. We caution that if it happen again, necessary action will be initiated against him or any such other employee of the company.
Copy of this order be given dasti to Sh. J. S. Rattu, Advocate, Counsel for the judgment debtors, so that, he may bring it to the knowledge of Sh. Harminder Singh Behl, the aforesaid employee of the company."
In consequent to the aforesaid order, office articles were attached and report was so submitted by the office of Deputy Collector on 25.05.2018. On that date, some payment was also made by the judgment debtors to the decree holder and further promise was made that on the next date of hearing i.e. today, the judgment debtors shall pay an amount of Rs.15 lacs to the decree holder.
Today, in Court, Counsel for the judgment debtors has handed over three demand drafts bearing Nos.752562, 752563 & 752565, all dated 28.05.2018, in the sum of Rs.10,00,000/-, Rs.2,50,000/- & Rs.2,50,000/- to the decree holder, who is present in Court, against receipt. Photocopies of the aforesaid drafts are retained on file.
It is promised by Counsel for the judgment debtors that on the next date of hearing, another amount of Rs.10 lacs shall be paid by the judgment debtors to discharge their liability.
In view of the fact that the judgment debtors have started paying the amount, attachment order issued by this Commission vide order dated 01.05.2018 stands withdrawn. Directions are issued to the Deputy Commissioner, Chandigarh to release the articles, which were attached vide order dated 01.05.2018 forthwith.
Adjourned to 02.07.2018.
Certified copy of this order be given dasti to both the parties/their Counsel and also to Sh.Chander Shekhar, Clerk/authorized representative from the office of District Collector's office, Chandigarh.
We make it very clear that in case, the amount is not so brought in Court for payment, as promised, the office articles will again be attached and further attachment order will also be passed qua the land and construction raised in the project namely 'Emerging Height 4', situated within Emerging Valley project at Landran-Banur Road, Mohali, Punjab.........."
Thereafter, vide order dated 05.02.2019, the said property was again ordered to be attached and as such, it stood attached on 15.02.2019, under Rapat No.193, as per the report of Tehsildar.
It has also come to our notice that on 10.06.2020, a composite application bearing no.376 of 2020 titled as Jarnail Singh Vs. M/s Emerging Valley Pvt. Ltd. was filed by the applicant, under the heading "Application for keeping the arrest warrants of judgment debtor no.2 i.e. Gurpreet Singh Sidhu in abeyance", wherein it was also specifically pleaded that the properties of the applicant attached by this Commission be de-attached. This application (376 of 2020) is still pending. Now the instant applications have been filed by the applicant wherein it has been stated that earlier he was declared proclaimed offender and now since he was arrested on 21.09.2021 and produced before this Commission on 22.09.2021, therefore, the order of attachment has automatically ceased to exist in view of his arrest and production before this Commission. It has been specifically pleaded in para nos.3 and 11 of these applications as under:-
"...3. That on 21.09.2021 the applicant/JD namely Gurpreet Singh Sidhu Managing Director of the company was arrested and since then he is in judicial custody.
4 to 10 xxxxxxxxxxxxxxxxxx
11. That the proceedings which were initiated under Section 82 of Cr.P.C. were just to secure the presence of the applicant/JD. Once the said purpose is achieved and the applicant/JD is showing his bonafide by trying hard to fulfill his commitments even when he is in custody keeping in view the conduct of the applicant/JD in the interest of justice the properties of the applicant/JD may be deattached and property should be restored according to the judgment laid down in the matter of "Vimalben Ajitbhai Patel Vs. Vatslaben Ashokbhai Patel 2008(4) SCC 649". It is pertinent to mention here that the applicant/JD is ready to furnish the requisite bail bonds to the entire satisfaction of Hon'ble Commission. It was also observed that once the accused is absconded and declared proclaimed offender and his property is attached thereafter if accused surrendered then in that case the properties which have been attached by the court the same should be restored as provisions of Cr.P.C. do not provide sale of the property. Once the accused surrendered then his no longer an absconder and accordingly the properties which have been attached for procuring his presence same be restored and deattached....."
This application (474 of 2017) alongwith connected applications have been contested, inter alia, by the decree holder(s) by stating that the said applications are liable to be dismissed due to the own act and conduct of the applicant, as he has intentionally not complied with the orders passed by this Commission; that he can abscond by selling of the properties attached; that vide order dated 22.02.2022 passed by the Hon'ble Punjab State Commission, he was granted interim arrangements for visiting the site of the Project while remaining in police custody from 09.00AM to 07.00 PM and was further extended till 27.05.2022; and that he had ample opportunity to comply with the orders passed by this Commission but he failed to do so.
We have heard the contesting parties and have gone through the entire record of these cases, very carefully.
Counsel for the applicant submitted that attachment of the properties has been made wrongly under the provisions of Section 27 of the CPA 1986; that those shall be ceased to exist immediately when the applicant was arrested on 21.09.2021 and produced before this Commission on 22.09.2021; that the purpose of the attachment of the properties was to secure the presence of the applicant; and on his appearance/arrest the said purpose has been duly served. Apart from it, under the amended provisions of Section 82 (4) of Cr.P.C. the applicant cannot be declared proclaimed offender and, in this view of the matter, the property cannot be attached being a proclaimed offender.
On the other hand, counsel for the non-applicants/decree holders submitted that if the properties are de-attached, it shall cause irreparable loss to the decree holders. It was further submitted that the applicant did not appear within a period of two years from the date of attachment of his properties, therefore, at this stage, attachment cannot be removed under Section 85(3) of the Cr.P.C.
We have considered the rival contentions of the parties and scanned the material available on the record, very carefully.
The Consumer Protection Act, 1986 (in short the CPA 1986) provides two kinds of remedies for getting enforcement of the orders passed by the District Fora. Firstly-by executing the order in the same manner, as if the same are 'decree' or 'order' made by a civil court in a suit pending therein and it shall be lawful for the District Foras to send, in the event of its inability to execute it, such order to the court within the local limits of whose jurisdiction, the registered office of the company is situated. Secondly by enforcing by way of punishment to the wrong doers under the provisions of Section 27 of CPA 1986. Sections of CPA 1986 applicable for enforcement of the orders passed in the main consumer complaints, are Section 25 and Section 27, which are reproduced hereunder:-
"..Section 25 in the Consumer Protection Act, 1986 1[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.]..."
".....Section 27 in the Consumer Protection Act, 1986
27. Penalties.--
(1) ] Where a trader or a person against whom a complaint is made 2[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.]...."
In this case, initially, the applicant has appeared through his Counsel, Sh. J.S. Rattu, Advocate, but the respective decreetal amount was not paid, in totality. Later on when the applicant failed to put in appearance in these cases and disappeared, as such, he was declared Proclaimed Offender (as per the table given above) in all these cases, and his properties were attached, in the captioned cases.
Thereafter, the applicant was arrested by the Police on 21.09.2021 and produced before this Commission on 22.09.2021. Section 85 of Cr.P.C. relates to the release, sale and restoration of attached property under Section 82 of the Cr.P.C., relevant part of which is reproduced hereunder:-
"......85. Release, sale and restoration of attached property. (1) 85. Release, sale and restoration of attached property.
(1) If the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment.
(2) If the proclaimed person does not appear within the time specified in the proclamation, the property under the attachment shall be at the disposal of the State Government; but it shall not be sold until the expiration of six months from the date of the attachment and until any claim preferred or objection made under section 84 has been disposed under that section, unless it is subject to speedy and natural decay, or the Court considers that the sale would be for the benefit of the owner; in either of which cases the Court may cause it to be sold whenever it thinks fit.
(3) If, within two years from the date of the attachment, any person whose property is or has been at the disposal of the State Government, under sub- section (2), appears voluntarily or is apprehended and brought before the Court by whose order the property was attached, or the Court to which such Court is subordinate, and proves to the satisfaction of such Court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, and that he had not such notice of the proclamation as to enable him to attend within the time specified therein, such property, or, if the same has been sold, the net proceeds of the sale, or, if part only thereof has been sold, the net proceeds of the sale and the residue of the property, shall, after satisfying therefrom all costs incurred in consequence of the attachment, be delivered to him......"
In these cases, the properties of the applicant was not disposed of by the State even within a period of 2 years, from the date of attachment. Infact, the proclaimed offender was duly represented by his Counsel but in the absence of his personal appearance, non bailable warrants were issued and publication under Section 83 of Cr.P.C. was effected in the newspaper. We are of the considered view that instead of declaring him proclaimed offender, he should be declared as proclaimed person in view of the judgment of Hon'ble Delhi High Court, in Arun Kumar Arihar Vs. State, 2021 (2) RCR Criminal 556. In that case, the FIR was registered under 406/420/120 B of IPC. Hon'ble High Court has held that said provision of law do not fall within the ambit of Section 82 (4) of Cr.P.C As stated above, the applicant has already filed application bearing no.376 of 2020 in this case on 09.06.2020 which is kept pending till date. Thus, he has already made a request within two years. Under similar circumstances, the Hon'ble Kerela High Court in the case of Gigimol Rajan Versus District Collector, LAWS(KER)-2019-8-150, decided on August 06, 2019 held as under:-
"......4. In view of the submissions of the learned counsel, a report was called for from the learned Magistrate, which has been placed before this Court. The report reads as follows:-
"CC No.783/2015 of this court arose from Crime No.14/2009 of Keezhvaipur Police Station for the offence punishable U/S.294(b), 323 and 341 IPC. Initially the case was taken on file as CC No.426/2009. Since the accused absconded, after issuing warrant and steps under section 82 and 83 of Cr.P.C, the case was transferred to long pending cases as LP No.45/2015. Meantime, the officer of Mallapally Village, filed a report dated 21.1.2015 stating that a property extend 0.0800(H) comprised in re-survey No.79/8 of block No.28 of said village is in the joint ownership of accused (Rajan Mathew) and his wife name Gigimole. On receipt of that report, an order of attachment issued and the same was effected on 19.3.2015.
On 17.7.2015 the accused was arrested and produced and then he pleaded guilty for the offences. After accepting his plea he was convicted and fined Rs.2500/- for the offences. It was further ordered to pay the fine amount, if realised, to the de facto complainant, as compensation U/s.257(1) of Cr.P.C. Accused remitted the fine amount."
5. Section 85 of the Cr.P.C. provides for the release, sale and restoration of the attached property. Section 85(3) states that if, within two years from the date of the attachment, any person whose property is or has been at the disposal of the State Government, under sub-section (2), appears voluntarily or is apprehended and brought before the Court by whose order the property was attached, or the Court to which such Court is subordinate, and proves to the satisfaction of such Court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, and that he had not such notice of the proclamation as to enable him to attend within the time specified therein, such property, or, if the same has been sold, the net proceeds of the sale, or, if part only thereof has been sold, the net proceeds of the sale and the residue of the property, shall, after satisfying there from all costs incurred in consequence of the attachment, be delivered to him.
6. In the case on hand, the attachment was effected on 19.03.2015. Within a period of 4 months thereafter, i.e., on 17.7.2015, the accused had appeared before the learned Magistrate and had pleaded guilty. As held by this Court in Abdul Khader (cited supra), Section 85(3) of the Code does not say that a formal application is required to be filed for getting the attachment lifted. The petitioner, therefore, cannot be found fault with for not filing an application for the same. Once the purpose of issuing the attachment was achieved, the learned Magistrate ought to have withdrawn the attachment and re-stored the property..."
Similar view was expressed by the Hon'ble Bombay High Court in M/s. J.B.D. Finance and Investment Ltd. Vs. State of Maharashtra, Writ Petition No. 6107 of 2019, decided on 16.11.2021. In that case, the accused was earlier declared Proclaimed Offender, he was arrested and ultimately acquitted of the charges. The application for release and restoration of property was rejected by the Magistrate on the ground that the same has been filed beyond the period of two years. However, the Bombay High Court held as under:-
"......Section 85 empowers the Court to entertain the application for release and restoration of the property beyond two years from the date of attachment, if such a person proves to the satisfaction of the Court that he was prevented by a sufficient cause, from making an application for release and restoration of the property. Thus, to be stated that two years period referred for lifting the attachment cannot be read literally to say the belated application is not maintainable, even if there is a justifiable cause for not seeking release of raising the attachment after two years.
17. In this case, the learned Metropolitan Magistrate did not consider the circumstances, which prevented the Petitioners for making the claim under Section 85(3) of Cr.P.C. within a period of two years. In the circumstances and for the reasons stated, the impugned order dated 21st November, 2019 is quashed and set aside and the learned Metropolitan Magistrate, 28th Court, Esplanade, Mumbai, is directed to decide Petitioners' application on merits, in terms of this judgment......"
In the instant case, the applicant has already filed application in June 2020. Apart from it, this Commission is not oblivious of the fact of the situations prevalent due to COVID-19 and the Hon'ble Supreme Court in Civil Original Jurisdiction, Miscellaneous Application No. 21 of 2022 In Miscellaneous Application No. 665 of 2021 In Suo Motu Writ Petition (C) No. 3 of 2020, In Re: Cognizance For Extension of Limitation, passed the order dated 23.03.2020 and directed that the period from 15.03.2020 till 28.02.2022 (with extension of 90 days) shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings.
The Hon'ble Supreme Court of India in Vimalben Ajitbhai Patel Vs. Vatslabeen Ashokbhai Patel and others, Civil Appeal No.2003 of 2008 decided on 14.03.2008 (in para no.32) has already held that when accused is arrested or brought before the Magistrate, the purpose of attaching the property comes to an end. This paragraph is reproduced hereunder:-
".........32. The provisions contained in Section 82 of the Code of Criminal Procedure were put on the statute book for certain purpose. It was enacted to secure the presence of the accused. Once the said purpose is achieved, the attachment shall be withdrawn. Even the property which was attached, should be restored. The provisions of the Code of Criminal Procedure do not warrant sale of the property despite the fact that the absconding accused had surrendered and obtained bail. Once he surrenders before the Court and the Standing Warrants cancelled, he is no longer an absconder. The purpose of attaching the property comes to an end. It is to be released subject to the provisions of the Code. Securing the attendance of an absconding accused, is a matter between the State and the accused. Complainant should not ordinarily derive any benefit therefrom. If the property is to be sold, it vests with the State subject to any order passed under Section 85 of the Code. It cannot be a subject matter of execution of a decree, far less for executing the decree of a third party, who had no right, title or interest thereon...."
The ratio of the law laid down in Vimalben Ajitbhai Patel, Gigimol Rajan an M/s. J.B.D. Finance and Investment Ltd. cases (supra) is fully applicable to the present cases. Thus, in our considered opinion the remedy under Sector 27 of CPA 1986 is of criminal nature and attachment of any property automatically comes to an end after the accused is arrested and produced before the Consumer fora. In these cases, he was produced before this Commission on 22.9.2021.
However before proceeding further, it is significant to mention here that in the present cases, various reports of attachment of the properties have been received from the Tehsildar concerned, wherein, he has mentioned regarding Rapat Numbers only i.e. 193, 662, 663, 664 and 665 dated 31.01.2019 etc. and compete details of khasra nos., property nos. names of articles attached etc. have not been provided to this Commission. Thus, these reports of the Tehsildar are ambiguous and uncertain. As such, the same are not sustainable and are required to be removed from the record. Under these circumstances, we are of the considered view that since the applicant was arrested by the Police on 21.09.2021 and produced before this Commission on 22.09.2021, as such, all the properties of the applicant only, which stood attached in the captioned cases only, are liable to be removed.
Consequently, all these applications are allowed and all the immovable properties of the company, attached in these cases only, are ordered to be removed/de-attached with immediate effect. However, it has been brought to our notice that House No.317, Sector 21-A, Chandigarh has been mortgaged by with the Bank/SBI, prior to filing of these cases and as such, it should be given preference. These applications stand disposed of, accordingly.
Now to come up in the main execution applications on 18.08.2022 for further proceedings.
Certified copies of this order be sent to the parties, free of charge and copy be placed on the connected case files.
Certified copies of this order be also sent to the Deputy Commissioner-cum-Collector U.T., Chandigarh and also Deputy Commissioner-cum-Collector SAS Nagar, Mohali, Punjab for necessary action.
Pronounced.
01.08.2022 Sd/-
[JUSTICE RAJ SHEKHAR ATTRI] PRESIDENT Sd/-
(PADMA PANDEY) MEMBER Sd/-
(RAJESH K. ARYA) MEMBER Rg.