State Consumer Disputes Redressal Commission
Smt. Shashi Sain & Ors. vs Utkarsh Infracom Pvt. Ltd. & Anr. on 10 October, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
Execution Application No.:10/2016
Date of Presentation: 16.11.2016
Order Reserved On : 27.06.2018
Date of Order : 13.09.2018
......
Bhim Shumsher Singh Sain (Deceased) Son of late Shri Shiv
Charan Singh Sain Resident of House No.189 Ward No.7 Village
Banayak Post Office Bhojpur Tehsil Sundernagar District Mandi
Himachal Pradesh-175002 through his legal heirs
(i) Smt. Shashi Sain W/o Late Shri Bhim Shumsher Singh Sain
(ii) Ms. Arti Sain D/o Late Shri Bhim Shumsher Singh Sain
(iii) Ms. Jyoti Sain D/o Late Shri Bhim Shumsher Singh Sain
(iv) Shri Ashok Singh Sain S/o Late Shri Bhim Shumsher Singh
Sain
Executants No. 1 to 3 through their General Attorney Shri
Ashok Singh Sain All residents of House No.189 Ward
No.7 Village Banayak Post Office Bhojpur Tehsil
Sundernagar District Mandi Himachal Pradesh-175 002.
...... Executants/LRs of deceased complainant
Versus
1. Utkarsh Infracom Private Ltd. Registered Office at
H.No.65/5 Haripur Colony Sundernagar District Mandi
H.P.-175018 (Having Company Identification Number i.e.
CIN C45209HP2011PTCO31708 with Ministry of
Corporate Affairs Govt. of India) Through its Chairman &
Managing Director.
2. Mr. Harsh Gupta Son of Shri Puran Chand Gupta
Presently working as Chairman & Managing Director of
Utkarsh Infracom Private Limited Registered Office at
H. No.65/5 Haripur Colony Sundernagar District Mandi
H.P. 175018. (The Director of Utkarsh Infracom Pvt.
Limited) Director Date of Appointment as Directors &
Key Person in Utkarsh Infracom Private Limited- 19/7/11,
having DIN 03565474, DIN being Director Identification
Number with Ministry of Corporate Affairs Govt. of
India).
Bhim Shumsher Singh Sain (Deceased) through LRs Versus Utkarsh Infracom Private Limited & Ors. (E.A. No.10/2016)
3. Ms. Sen Rishu Umesh Daughter of Shri Umeshwar Sen
Director of Utkarsh Infracom Private Limited a resident of
House No.207/2, Kanokhri Chowki Baned near M.L.S.M
College Tehsil Sundernagar District Mandi, H.P. 174401
Ms. Sen Rishu Umesh (Discharged vide order dated
23.05.2017 passed by State Commission)
...... Non-Executants/Opposite parties
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
For Executants : Mr. Ashok Singh Sain Executant No.4 & General Attorney of Executants No.1 to 3.
For Non-Executants : Mr. Ashish Sharma Advocate vice Mr. Sunil Thakur Advocate with Non-
Executant No.2 Harsh Gupta.
JUSTICE P.S. RANA (R) PRESIDENT:
ORDER UNDER SECTION 27 OF CONSUMER P R O T E C T I O N A C T 1 9 8 6 :-
1. Present execution application filed under section 27 of Consumer Protection Act 1986. It is pleaded that Consumer Complaint No. 13 of 2015 was decided by H.P. State Consumer Commission on dated 25.04.2016. It is pleaded that State Commission ordered that opposite parties No.1 & 2 shall pay to the complainant a sum of Rs.1000000/- (Ten lac) in two equal installments of Rs.500000/- (Five lac) each. It is pleaded that State Commission further ordered that 1 Whether reporters of the local papers may be allowed to see the order? Yes. 2 Bhim Shumsher Singh Sain (Deceased) through LRs Versus Utkarsh Infracom Private Limited & Ors. (E.A. No.10/2016) first installment of Rs.500000/- (Five lac) shall be paid on or before 25.05.2016 and second installment shall be paid on or before 25.07.2016. It is pleaded that State Commission further ordered that in case default is made in the payment of either of the installments interest on the unpaid installment shall be payable by opposite parties No.1 & 2 @ 9% per annum from the date of last payment made by complainant to the opposite parties w.e.f. 24.09.2014. It is pleaded that State Commission further ordered that opposite parties shall be legally entitled to remove the shuttering material lying on the spot after the payment of first installment to the tune of Rs.500000/- (Five lac). It is pleaded that State Commission further ordered that both the installments shall be paid by way of depositing money with the Registrar of H.P. State Consumer Commission through bank draft in the name of Registrar.
2. It is pleaded that non-executants did not comply the order passed by H.P. State Consumer Commission and non-executants be punished under Section 27 of Consumer Protection Act 1986 for failing and omitting to comply the order passed by State Commission cited supra.
3. Notice of accusation under Section 27 of Consumer Protection Act 1986 was given to the non- executant Shri Harsh Gupta on dated 15.06.2017. Non- 3 Bhim Shumsher Singh Sain (Deceased) through LRs Versus Utkarsh Infracom Private Limited & Ors. (E.A. No.10/2016) executant pleaded not guilty and claimed trial. Thereafter execution application was listed for evidence of executants by way of affidavits. Non-executants sent interrogatories to the witnesses of executants. Response of interrogatories was sought from the witnesses of executants. Thereafter statement of non-executant Harsh Gupta was recorded under Section 313 of Code of Criminal Procedure 1973. Thereafter execution application was listed for defence evidence of non-executants. Non-executants sent interrogatories to Shri Shyam Lal and Shri Hira Lal. Interrogatories from Shri Hira Lal did not receive back for want of correct address and learned advocate appearing on behalf of non-executants has given statement before State Commission that he withdraws the interrogatories relating to Hira Lal. Response of interrogatories sent to Shri Shyam Lal received.
4. State Commission vide order dated 23.05.2017 discharged non-executant No.3 namely Ms. Sen Rishu Umesh.
5. We have heard Shri Ashok Singh Sain executant No.4 and General attorney of Executants No.1 to 3 and we have also heard learned advocate appearing on behalf of non- executants and we have also perused entire record carefully.
6. Following points arise for determination in the present execution application:
4
Bhim Shumsher Singh Sain (Deceased) through LRs Versus Utkarsh Infracom Private Limited & Ors. (E.A. No.10/2016)
1. Whether non-executants have intentionally and willfully fails or omits to comply final order of State Commission announced in Consumer Complaint No. 13 of 2015 decided on 25.04.2016 and whether non-executants are liable to be punished under Section 27 of Consumer Protection Act 1986 as alleged in memorandum of grounds of execution application?
2. Final order.
Findings upon point No.1 with reasons:
7. Executants filed affidavit of Mohan Shumsher Singh Sen Ex.C-1 in evidence. There is recital in the affidavit that brother of deponent namely Shri Bhim Shumsher Singh Sen filed consumer complaint before H.P. State Consumer Commission against M/s. Utkarsh Infracom Private Ltd. There is further recital in the affidavit that matter was compromised and compromised order was passed by H.P. State Consumer Commission on dated 25.04.2016. There is further recital in the affidavit that H.P. State Consumer Commission ordered that Shri Harsh Gupta shall pay Rs.1000000/- (Ten lac) to deceased complainant. There is further recital in the affidavit that H.P. State Consumer Commission further ordered Shri Harsh Gupta to pay Rs.500000/- (Five lac) before 25.05.2016 and to pay another sum of Rs.500000/- (Five lac) before 25.07.2016. There is 5 Bhim Shumsher Singh Sain (Deceased) through LRs Versus Utkarsh Infracom Private Limited & Ors. (E.A. No.10/2016) further recital in the affidavit that Harsh Gupta deposited first installment of Rs.500000/- (Five lac) before Registrar H.P. State Consumer Commission and did not deposit the second installment of Rs.500000/- (Five lac) before Registrar H.P. State Consumer Commission. There is further recital in the affidavit that Shri Harsh Gupta contractor took contract to construct the house of deceased brother of deponent. There is further recital in the affidavit that Shri Harsh Gupta left the construction work in midway. Non-executants sent interrogatories to Shri Mohan Shumsher Singh Sen by way of cross examination. Shri Mohan Shumsher Singh Sen has mentioned in the response to interrogatories that his house is situated adjacent to the site of proposed house construction. Shri Mohan Shumsher Singh Sen has specifically answered by way of response to interrogatories that five times late Shri Bhim Shumsher Singh Sen visited the office of non- executants and asked the non-executants to remove the shuttering material from the construction site. There is further recital in the response to interrogatories that non- executants also cheated many other persons at Sunder Nagar in similar modus operandi.
8. Executants filed affidavit of Smt. Shashi Sain Ex.C-2 in evidence. There is recital in the affidavit that husband of deponent late Shri Bhim Shumsher Singh Sen 6 Bhim Shumsher Singh Sain (Deceased) through LRs Versus Utkarsh Infracom Private Limited & Ors. (E.A. No.10/2016) filed consumer complaint before State Commission against opposite parties i.e. M/s. Utkarsh Infracom Pvt. Ltd. & Ors. and on dated 25.04.2016 Shri Harsh Gupta had given statement that he would pay Rs.1000000/- (Ten lac) to the husband of deponent. There is further recital in the affidavit that Shri Harsh Gupta had given sum of Rs.500000/- (Five lac) before 25.05.2016 but did not pay the second installment of Rs.500000/- (Five lac) before 25.07.2016. There is further recital in the affidavit that Harsh Gupta had not complied the order passed by H.P. State Consumer Commission and took sum of Rs.30.00 lacs to Rs.45.00 lacs from the husband of deponent for the construction of house. Non-executants sent interrogatories to Smt. Shashi Sain by way of cross examination. Smt. Shashi Sain has mentioned in response to interrogatories that work of construction was to be commenced on 07.10.2013 and was to be completed up to 10.06.2014 failing which non-executants were under legal obligation to pay 10% of the total amount for delayed construction. Smt. Shashi Sain has further mentioned in response to interrogatories that her deceased husband had entered into agreement to construct house with non- executants. Smt. Shashi Sain has further mentioned in response to interrogatories that her deceased husband namely Shri Bhim Shumsher Singh Sen visited the office of non-executants five times and asked the non-executants to 7 Bhim Shumsher Singh Sain (Deceased) through LRs Versus Utkarsh Infracom Private Limited & Ors. (E.A. No.10/2016) remove the shuttering material from the construction site. Smt. Shashi Sain has further mentioned in response to interrogatories that non-executants committed willful default.
9. Executants also filed affidavit of Dhruv Katoch Ex. C-3 in evidence. There is recital in the affidavit that maternal uncle of deponent Shri Bhim Shumsher Singh filed consumer complaint before H.P. State Consumer Commission against non-executants and compromise was executed on dated 25.04.2016. There is further recital in the affidavit that as per compromised order Shri Harsh Gupta agreed to pay Rs.1000000/- (Ten lac) to the complainant out of which Rs.500000/- (Five lac) was to be paid before 25.05.2016 and second installment of Rs.500000/- (Five lac) was to be paid before 25.07.2016 before Learned Registrar H.P. State Consumer Commission. There is further recital in the affidavit that non-executants did not deposit the second installment as ordered by State Commission.
10. Statement of Shri Harsh Gupta was recorded under Section 313 of Code of Criminal Procedure 1973 on dated 17.11.2017. Shri Harsh Gupta has admitted that consumer complaint was filed against him which was disposed of on dated 25.04.2016 by State Commission. Shri Harsh Gupta has also admitted that State Commission ordered Shri Harsh Gupta to pay sum of Rs.1000000/- (Ten 8 Bhim Shumsher Singh Sain (Deceased) through LRs Versus Utkarsh Infracom Private Limited & Ors. (E.A. No.10/2016) lac) in two installments to predecessor in interest of executants. Shri Harsh Gupta has admitted that he had paid first installment on 25.05.2016 and did not pay the second installment which was due on 25.07.2016. Shri Harsh Gupta has stated in the statement recorded under Section 313 of Code of Criminal Procedure 1973 that after the payment of first installment he was not allowed to remove the shuttering material lying at the spot by the executants. Shri Harsh Gupta has further stated in his statement recorded under Section 313 of Code of Criminal Procedure 1973 that he is ready to pay the remaining amount of Rs.500000/- (Five lac) alongwith interest to the executants within two months.
11. Non-executants filed list of witnesses namely Shri Harsh Gupta, Shri Shyam Lal and Shri Hira Lal.
12. Shri Harsh Gupta has filed affidavit Ex.OP-1 in evidence. There is recital in the affidavit that after the payment of Rs.500000/- (Five lac) Shri Harsh Gupta did not receive his entire shuttering, steel plates which are still lying in the possession of legal-heirs of deceased Bhim Shumsher Singh Sen. There is further recital in the affidavit that Shri Harsh Gupta visited the house of executants five to six times and demanded entire shuttering but till date executants had not returned entire shuttering.
9 Bhim Shumsher Singh Sain (Deceased) through LRs Versus Utkarsh Infracom Private Limited & Ors. (E.A. No.10/2016)
13. Non-executants sent interrogatories to Shri Shyam Lal by way of evidence. Shri Shyam Lal has mentioned in response to interrogatories that he and his brother went to bring the shuttering of Harsh Gupta from the site twice but executants did not allow them to remove the shuttering. There is further recital in the response to interrogatories that executants threatened to kill non-executant Shri Harsh Gupta.
14. Non-executants also sent interrogatories to Shri Hira Lal by way of evidence but learned advocate appearing on behalf of Shri Harsh Gupta has given statement before H.P. State Consumer Commission on dated 31.05.2018 that he withdraws the interrogatories relating to Hira Lal.
15. Submission of General Attorney of Executants that Shri Harsh Gupta has willfully failed or omitted to comply the order dated 25.04.2016 passed by H.P. State Consumer Commission in Consumer Complaint No. 13 of 2015 titled deceased Bhim Shumsher Singh Sain Versus Utkarsh Infracom Private Ltd. & Ors. and on this ground execution application be allowed is decided accordingly. It is proved on record that compromised order was passed by State Commission. As per compromised order non-executants were liable to pay Rs.1000000/- (Ten lac) to the complainants in two equal installments. First Installment was to be paid on or before 25.05.2016 and second installment was to be paid on 10 Bhim Shumsher Singh Sain (Deceased) through LRs Versus Utkarsh Infracom Private Limited & Ors. (E.A. No.10/2016) or before 25.07.2016. Shri Harsh Gupta has admitted in his statement recorded under Section 313 Cr.P.C. that he did not pay the second installment to the tune of Rs.500000/- (Five lac) in time. Even Shri Mohan Shumsher Singh Sen and Smt. Shashi Sain have also corroborated the fact that second installment ordered by State Commission was not paid by the non-executant namely Shri Harsh Gupta. Affidavits filed by Shri Mohan Shumsher Singh and Smt. Shashi Sain are trustworthy, reliable and inspire confidence of State Commission.
16. Submission of learned advocate appearing on behalf of non-executants that executants did allow to remove the shuttering and on this ground execution application filed by executants under Section 27 of Consumer Protection Act 1986 be dismissed is decided accordingly. State Commission is of the opinion that Shri Harsh Gupta was under legal obligation to file execution application against executants for non-compliance of conditional order passed by H.P. State Consumer Commission. Shri Harsh Gupta did not file execution application as per provisions of Section 25 or 27 of the Consumer Protection Act 1986.
17. Proceedings under Consumer Protection Act 1986 are punitive proceedings and State Commission is of the opinion that in order to maintain majesty of law and in order to retain faith of general public in Consumer Forums and 11 Bhim Shumsher Singh Sain (Deceased) through LRs Versus Utkarsh Infracom Private Limited & Ors. (E.A. No.10/2016) Consumer Commissions it is essential that order passed by Consumer Forums and Consumer Commissions should be executed in toto. See 2001 (1) CPJ 328 TN titled V.P. Balasubramaniam Versus Sri Jai Anjaneya Associates & Anr. See 2008 (1) CPC 45 Delhi High Court titled Prudential Capital Markets Ltd. Versus Dipankar Guha. See 2002 (2) CPC 536 Punjab tilted M/s. Golden Forests (India) Ltd. Versus Satwinder Bedi. It is held that non-executant namely Harsh Gupta has intentionally and voluntarily failed or omitted to comply the order dated 25.04.2016 passed by State Commission in Consumer Complaint No.13 of 2015. Offence under Section 27 of Consumer Protection Act 1986 is proved against Shri Harsh Gupta beyond reasonable doubt. Point No.1 is decided accordingly.
Point No.2: Final Order
18. In view of findings upon point No.1 above non- executant namely Shri Harsh Gupta is convicted under Section 27 of Consumer Protection Act 1986. Now be listed for arguments on quantum of sentence on 19.09.2018.
Justice P.S. Rana (R) President (Exercising powers under Cr.P.C. 1973) Vijay Pal Khachi Member (Exercising powers under Cr.P.C. 1973) 13.09.2018.
*GUPTA* 12 Bhim Shumsher Singh Sain (Deceased) through LRs Versus Utkarsh Infracom Private Limited & Ors. (E.A. No.10/2016) QUANTUM OF SENTENCE:
10.10.2018 Present: Mr. Rajesh Thakur counsel for executants with Shri Ashok Singh Sain General Attorney of executants No.1 to 3.
Mr. Sunil Thakur counsel for non-executants with convicted person namely Shri Harsh Gupta.
19. Matter was listed for arguments on quantum of sentence on dated 19.09.2018. Convicted person was not present before State Commission on dated 19.09.2018. Thereafter matter was listed for the presence of convicted person on dated 28.09.2018 and convicted person was summoned through NBW. On dated 28.09.2018 serving officers appeared before State Commission and submitted that NBW could not be executed. State Commission again ordered the serving officer to execute the NBW for 10.10.2018. Today convicted person appeared before State Commission alongwith learned advocate.
20. Today we have heard Learned Advocate appearing on behalf of convicted person and Learned Advocate appearing on behalf of executants on quantum of sentence.
21. Learned Advocate appearing on behalf of executants submitted before State Commission that deterrent punishment be given. On the contrary Learned Advocate appearing on behalf of convicted person submitted before State Commission that lenient view be taken in view of the fact that convicted person is first offender and he has large family to support. 13 Bhim Shumsher Singh Sain (Deceased) through LRs Versus Utkarsh Infracom Private Limited & Ors. (E.A. No.10/2016)
22. We have considered submissions of Learned Advocate appearing on behalf of convicted person and we have also considered submissions of Learned Advocate appearing on behalf of executants.
23. In the present matter consumer complaint was disposed of by State Commission on dated 25.04.2016 and direction was given to the convicted person to deposit amount to the tune of Rs.1000000/- (Ten lac) by way of two installments. First installment was to be paid on or before 25.05.2016 and second installment was to be paid on or before 25.07.2016. Convicted has paid first installment within time but convicted did not pay the second installment on or before 25.07.2016. Till date second installment to the tune of Rs.500000/- (Five lac) not paid by convicted person.
24. In order to maintain majesty of law and in order to maintain confidence of general public in the State Commission convicted person is sentenced as follows:
Sr. No. Offence Sentence Imposed
1. Under Section 27 of Convicted is sentenced to
the Consumer undergo simple imprisonment
Protection Act 1986 for 1½ (One and half) years
and fine is also imposed to
the tune of Rs.5000/- (Five
thousand). In default of
payment of fine convicted
14
Bhim Shumsher Singh Sain (Deceased) through LRs Versus Utkarsh Infracom Private Limited & Ors. (E.A. No.10/2016) person shall undergo simple imprisonment for 1½ (One and half) months.
25. Period of earlier custody if any will be set off. Certified copy of order be supplied to the convicted person forthwith free of costs. File after due completion be consigned to record room. Execution application filed under Section 27 of Consumer Protection Act 1986 is disposed of.
Justice P.S. Rana (R) President (Exercising powers under Cr.P.C. 1973) Vijay Pal Khachi Member (Exercising powers under Cr.P.C. 1973) 10.10.2018.
*GUPTA* 15