State Consumer Disputes Redressal Commission
M/S Dempo Marketing Co. Pt. Ltd. vs Avinash Shetye & Another on 28 January, 2019
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
R.P. No. 08/2018
AND
M.A. No. 32/18
M/s. Dempo Marketing Co. Pvt. Ltd.,
A company duly incorporated,
with its regd. Office,
Dempo Trade Centre, 1st floor,
Patto Plaza, Panaji-Goa. .... Petitioner
v/s.
1. Mr. Avinash Shetye,
R/o. H. No. 9, Dempo Colony,
Dahbdhaba, Bicholim, Goa.
2. M/s. V. E. Commercial Vehicles Ltd.,
102, Industrial Area No. 1,
Pithampur, District Dhar,
Madhya Pradesh - 454775. ..... Respondents
Adv. Shri. N. G. Kamat for the Petitioner.
Adv. Shri. P. N. Raikar for the Respondents.
Coram: Shri. Justice U. V. Bakre, President
Shri. Dhananjay A. Jog, Member
Dated: 28/01/2019
JUDGMENT
[Per Justice Shri. U. V. Bakre, President] This Revision Petition is filed against the Order dated 26/04/2018 passed by the Consumer Disputes Redressal Forum, North Goa (Forum, for short) in Execution Application No. 46/2016. The Petitioner was the Judgment Debtor No. 1 (JD No. 1, for short); Respondent No. 1 was the Decree Holder (DH, for short) and the Respondent No. 2 was the Judgment Debtor No. 2 (JD No. 2, for 2 short) in the said Execution Proceedings. Parties shall hereinafter be referred to as per their status in the said Execution Application.
2. Facts giving rise to the Petition are as follows:
By Judgment and Order dated 07/03/2016, the Forum had dismissed the Consumer Complaint No. 24/2008. The Complainant had challenged the said Order before this Commission and the said Appeal No. 25/2016 has been disposed of by order dated 08/11/2016. The impugned Order of the Forum has been quashed and set aside. The Complaint has been partly allowed. The JDs, jointly and severally, have been directed to pay to the Complainant an amount of Rs. 11,10,000/- along with interest at the rate of 9% per annum from 06/11/2007 till the date of actual payment. The vehicle has been ordered to be transferred in the name of the JD No. 1. The JDs have been further directed, jointly and severally, to pay to the Complainant costs of Rs. 25,000/-.
3. Against the said Judgment and Order dated 08/11/2016 of this Commission, the JD No. 2 has filed Revision Petition No. 166 of 2017 with I.A. No. 940 of 2017 and I.A. No. 941 of 2017 before the Hon'ble National Commission and by order dated 07/02/2017, notice has been directed to be issued to the DH and the JD No. 1 subject to payment of Rs. 5,000/- to the DH by way of demand draft in his name within two weeks, to cover their to & fro and allied expenses. The operation of the impugned order has been stayed subject to deposit of 50% of the principal amount with the State Commission concerned within a period of four weeks which shall be kept in the shape of an FDR initially for a period of one year. The JD No. 2 has accordingly deposited the said amount in this State Commission. The JD No. 1 does not appear to have challenged the Judgment and Order of this State Commission.
34. The DH has filed the Execution Application No. 46/2016 under Section 25 of the C.P. Act, 1986 (the Act, for short), before the Forum. Since the required amount was deposited by the JD No. 2 before this State Commission, the Forum did not give any further date considering the stay given by the Hon'ble National Commission. The DH filed an application dated 27/09/2017 before the Forum for continuation of the Execution proceedings against the JD No. 1. The DH stated that the JD No. 1 has not filed any appeal against the Judgment/Award dated 08/11/2016 passed by the State Commission and is not entitled to take benefit of the appeal filed by the JD No. 2 since the relief granted to the DH is joint and also several. The JD No. 1 filed reply contending that the operation of the decree dated 08/11/2016 in F.A. No. 25/2016 has been stayed by the Hon'ble National Commission and in compliance of the said order, the JD No. 2 has already deposited the amount as required before the State Commission and hence it is mischievous on the part of the DH to seek continuance of the Execution Proceedings as against the JD No. 1. By interim order dated 14/12/2017, the Forum observed that by interim order dated 07/02/2017, the Hon'ble National Commission has stayed the order dated 08/11/2016 subject to deposit of 50% of the principal amount with the State Commission and that the said amount has been deposited and that nowhere the National Commission has directed that the order of the State Commission is stayed only against the JD No. 2. The Forum dismissed the application dated 27/09/2017 filed by the DH and stayed the Execution Proceedings until further orders of the National Commission.
5. The DH approached the Hon'ble National Commission and the Ld. Counsel for the DH made a submission before the Hon'ble National Commission that the operation of the impugned order which had been stayed as per order dated 07/02/2017 should be applicable to the petitioner (JD No. 2) only because as per the 4 impugned order the liability of both the opposite parties (JDs. No. 1 and 2) had been fixed jointly and severally. By order dated 27/02/2018, the Hon'ble National Commission made it clear that the stay order passed on 07/02/2017 shall operate qua the petitioner (JD. No. 2) only.
6. In view of the above clarification given by the National Commission, the DH, on 01/03/2018, filed another application before the Forum for continuation of the Execution Proceedings as against the JD No. 1. The JD No. 1 filed an application dated 26/04/2018 before the Forum stating that it had sent a petition to New Delhi for filing the same before the Hon'ble National Commission seeking modification of the order by virtue of which the proceedings are sought to be continued as against it. The JD No. 1 stated that the said application is in the process of being filed after completion of formalities. The JD No. 1 therefore prayed to the Forum to adjourn the matter to June 2018 so as to enable the JD No. 1 to pursue its legal remedy, in the interest of justice. The DH endorsed instant reply on the said application saying that the application was frivolous, dilatory tactic and needs to be dismissed in limine. By order dated 26/04/2018, the Forum dismissed the said application of the JD No. 1 stating that the National Commission has clarified that the stay Order dated 07/02/2017 shall operate qua the petitioner i.e. Eicher Motors Ltd. and sufficient time was there with the JD No. 1 to challenge the order and hence the grounds mentioned in the application cannot be accepted. The JD No. 1 is therefore before us.
7. By ex-parte order dated 09/05/2018, this Commission stayed further proceedings in Execution Application No. 46 of 2016 and ordered issuance of notice to the DH and JD No. 2. Records and proceedings of Execution Application No. 46/2016 were called for. The DH has filed an application dated 18/05/2018 to set aside the said ex-parte order dated 09/05/2018. In reply, the JD No. 1 placed 5 on record the order dated 06/06/2018 passed by the Hon'ble National Commission in the said Revision Petition No. 166 of 2017 by which the matter for hearing on IA No. 8385/2018 was listed on 20/07/2018 and till then operation of the impugned order qua the respondent No. 2 (JD No. 1) was also stayed.
8. Both the JD. No. 1 and the DH have filed written submissions before us. We have heard oral arguments also. Mr. Kamat, Ld. Counsel argued on behalf of the JD. No. 1 and Mr. Raikar, Ld. Counsel argued on behalf of the DH. We have gone through the entire material on record.
9. It is not the case of the JD No. 1 that the stay of the impugned order granted in its favour by the Hon'ble National Commission in Revision Petition No. 166 of 2017, till 20/07/2018 continues till date. Presently, only the order dated 27/02/2018 passed by the Hon'ble National Commission operates by virtue of which the stay order passed on 07/02/2017 shall operate qua the petitioner (JD. No. 2) only. There is no stay order in favour of the JD. No. 1 with respect to the order dated 08/11/2016 in F. A. No. 25 of 2016 passed by this State Commission.
10. The Ld. Counsel for the JD No. 1 contended that when the DH had purchased the vehicle from the JD No. 1, it was the authorized dealer of the JD No. 2 but as from 26/12/2015, the JD No. 1 ceases to be the authorized dealer of JD No. 2 and the dealership activities stand closed since then. The Ld. Counsel submitted that upon the closure of the dealership of the JD No. 1, all the liabilities with respect to the suit vehicle sold to the DH by the JD No. 1 have been taken over by the JD No. 2 and hence the JD No. 1 is no more liable. In this regard, as rightly contended by the Ld. Counsel for the DH, the above statement of the JD No. 1 is only oral with no supporting documentary evidence at all. Further, the JD No. 2 has not filed any reply nor has made any statement in support of 6 the above contention of the JD No. 1. The Complaint was decided by the Forum on 07/03/2016. The First Appeal No.25/2016 was disposed of by this State Commission on 08/11/2016. If really, the liability was taken over by the JD No. 2 in December, 2015, nothing had prevented the JD No. 1 in making such a statement before the Forum before delivery of Judgment in the Complaint or before this State Commission prior to delivery of Judgment in F.A. No. 25/2016. Merely on the basis of an oral statement made by the JD No. 1 that all the liabilities of the JD No. 2 have been taken over by the JD No. 2 since 26/12/2015, we are unable to give any relief to the JD No. 1.
11. Admittedly, the JD No. 1 has not challenged the Judgment and Order sought to be executed by the DH, by filing any appeal. It is submitted by the Ld. Counsel for the JD No. 1 that the JD No. 1 has been arrayed as the respondent No.2 in the said Revision Petition filed by the JD No. 2 before the Hon'ble National Commission and that the JD No. 1 has dispatched an application to be filed before the National Commission seeking permission to be transposed as a petitioner and seeking modification of the order dated 27/02/2018, in view of taking over of liabilities by the JD No.
2. The JD No. 1 has not even produced a copy of such application for our perusal. Be that as it may, till today such application of the JD No. 1 has not been allowed by the Hon'ble National Commission and we cannot presume that the said application will be allowed. Be that as it may, the Revision Petition filed by the JD No. 2 cannot have any ground that all the liabilities of the JD No. 1 have been taken over by the JD No. 2. Hence the question is how in the said Revision Petition, the JD No. 1 would be allowed to take such a ground, even if permitted to be transposed as the petitioner. Hence, merely on the ground of pendency of an application for transposition, we are unable to set aside the impugned order and give relief to the JD No. 1.
712. Ld. Counsel for the DH has contended that the impugned order is neither perverse nor erroneous and cannot be interfered with in a Revision Petition. He has relied upon the judgment of the Hon'ble Supreme Court in the case of "Rubi (Chandra) Dutta Vs. United India Insurance Company Limited", reported in [(2011) 11 Supreme Court Cases 269], wherein the Apex Court has observed that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may be the same be set aside. This State Commission derives the revisional powers from Section 17(b) of the Consumer Protection Act, which is similar to Section 21(b) of the Act. We do not find any jurisdictional error in the impugned order. No interference, therefore, is warranted with the impugned order. The Interim ex-parte Order dated 09/05/2018 deserves to be vacated and the Revision Petition deserves to be dismissed.
13. In the result, we pass the following:
ORDER The ex-parte order dated 09/05/2018 is vacated. The Revision Petition and the M.A. No. 32/2018 are dismissed. No order as to costs. Parties to appear before the Forum on 04/02/2019 at 10.30 a.m. [Shri. Dhananjay A. Jog] [Justice Shri. U. V. Bakre] Member President 8