State Consumer Disputes Redressal Commission
Shri Abhijit Amrrutrao Bedake vs Shri Dwarkanath Dagduram Karwa on 15 December, 2009
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI Revision Petition no.140/2009 Date of Filing: 30/10/2009 Consumer Complaint No.341/2008 In (E.A.no.99/2009) District Consumer Forum: Satara Date of Order: 15/12/2009 1. Shri Abhijit Amrrutrao Bedake, Petitioners R/at- Laxminagar, Phatan, Dist- Satara. 2. Shri Rajendra Jagjivan Garawaliya, R/at- Ravivar Peth, Phaltan, Dist- Satara. 3. Shri Vivek Ramesh Petkar, R/at Shankar Market, Phaltan Dist- Satara. 4. Shri Shailendra Balkrishna Choudhari, R/at- Vishwa Apartment, Laxminagar, Phaltan, Dist- Satara. 5. Shri Ravindra Sitaram Nikam, R/at- Krushi Daulat, Laxminagar, Phaltan, Dist- Satara. 6. Shri Prakash Madhavrao More, R/at- Gajanan Chowk, Laxminagar, Phaltan, Dist- Satara. 7. Shri Sunil Jaisingh Dhembre, R/at- Pawargalli, Ner Shriram Mandir, Dist- Satara. 8. Sau Hemlata Vijay Bhosale, R/at- Bramhan Galli, Kasbapeth, Phaltan, Dist- Satara. 9. Sau Usha Ashok Kokate, R/at- Laxminagar, Phaltan, Dist- Satara. V/S 1. Shri Dwarkanath Dagduram Karwa, Respondents 2. Sau Shnatabai Dwarkanath Karwa, 3. Shri NitinDwarakanath Karwa, 4. Sau Pushpalata Nitin Karwa, 5. Shri Radheshyam Dwarkanath Karwa, 6. Sau Nilima Radhesyam Karwa, 7. Kum.Narendra Nitin Karwa, 8. Kum.Aditya Nitin Karwa, R/at 7 to 8through theirnatural Guardian Res. No.4, All r/at Budhwar Peth, Gajanan Chowk, Phaltan, Tal Phaltan, Dist- Satara. And Revision Petition no.147/2009 Date of Filing: 18/11/2009 Consumer Complaint No.341/2008 In (E.A.no.99/2009) District Consumer Forum: Satara Date of Order: 15/12/2009 Jabreshwar Nagari Sahakari Patsanshta Ltd. Petitioners Phaltan, Vice- Chairman, Shri Poonam alias Sachin Vilas Doshi, R/at- Laxminagar, Phaltan, Tal- Phaltan, Dist- Satara. V/s. 1. 1. Shri Dwarkanath Dagduram Karwa, Respondents 2. Sau Shnatabai Dwarkanath Karwa, 3. Shri NitinDwarakanath Karwa, 4. Sau Pushpalata Nitin Karwa, 5. Shri Radheshyam Dwarkanath Karwa, 6. Sau Nilima Radhesyam Karwa, 7. Kum.Narendra Nitin Karwa, 8. Kum.Aditya Nitin Karwa, All R/at Budhwar Peth, Gajanan Chowk, Phaltan, Tal Phaltan, Dist- Satara. Quorum : Justice Mr.S.B.Mhase, Hon'ble President Mr.S.R.Khanzode,Honble Judicial Member.
Present:
Adv.Mr.V.Talkute for petitioners in R.P.No.140/2009.
Adv.Mr.D.B.Shaikh for petitioners in R.P.No.147/2009.
Adv.D.S.Chavan for respondents.
:- ORAL ORDER :-
Per Shri S.B.Mhase, Honble President :
An execution petition was filed before District Forum on 16/09/2009. On that day the respondents moved an application stating that on 13/08/2009 bailable warrant was issued as against the revision petitioners, since the revision petitioner have failed to obey the orders passed in consumer complaint no. 341/2008. It is further stated in the said application that bailable warrant was served on some of parties and rest of the parties have also knowledge of the said warrant and therefore, respondents prayed that since the amount as directed in a complaint has not been paid non-bailable warrant be issued. On the said application, the President of District Forum has passed an order directing revision petitioners to file their say immediately. It further appears that the advocate for the revision petitioners/org.opp.party nos.1,2,3,4,7 filed their say and requested that non-bailable warrant may not be issued and time for three to four months may be granted. However, it appears that execution petition was adjourned to 13/10/2009. On 13/10/2009 there was holiday due to Assembly Elections and therefore, execution application appeared before District Forum on 14/10/2009.
On 14/10/2009 on behalf of the revision petitioners an application was moved by advocate stating that Adv.Mr.Satale, who is having information of the case is not available and therefore, execution application be adjourned. On the said application order was passed directing the respondents to file their reply and accordingly, respondents filed reply wherein respondents prayed rejection of an application and issuance of non-bailable warrant. Thereafter, the President of District Forum, Satara rejected the application filed by the revision petitioners on 14/10/2009.
The President of District Forum also allowed the application filed by the respondents on 16/09/2009 and issued non-bailable warrant as against the revision petitioners. This order of 14/10/2009 of issuance of non-bailable warrant as against the revision petitioners is challenged by this revision petition.
Ld.Counsel Mr.Talkute, who appears for the revision petitioners submitted that procedure followed by District Forum is absolutely bad and illegal and contrary to the provisions of Section 27 of Consumer Protection Act, 1986. He submitted that under Section 27 bailable warrant and/or a non-bailable warrant for the recovery of the amount cannot be issued. He submitted that the procedure as provided in Sub Section 3 of Section 27 should have been followed by the District Forum. He also submitted that the President of District Forum is exercising the powers arbitrarily. He submitted that individually the President cannot pass an order. The President has to pass an order taking the members of the District Forum along with him because according to him District Forum is composed under Section 10 and consists of three members. He also submitted that the quorum and the procedure which is required to be followed while deciding the complaint under Section 13 and 14 is not applicable when the District Forum is dealing with an application under Section 27 exercising the powers of Judicial Magistrate, First Class.
Ld.Counsel for the respondent vehemently tried to submit that the order passed by District Forum is just and proper. He submitted that fixed deposit amounts of the respondents are lying with the revision petitioners and in spite of directions to make payment of said fixed deposit amounts, revision petitioners have failed to pay the said amounts and therefore, he submitted that issuance of bailable warrant and/or non-bailable warrant for the purpose of recovery of the said amounts is permissible under Section 27 of Consumer Protection Act, 1986. He submitted that President is having powers to issue such orders for execution and thus tried to support the order passed by the District Forum which are made before State Commission.
Thus, the issue arises before this State Commission as to what is proper, correct and appropriate procedure to be followed by the District Forum while dealing with the application under Section 27 of Consumer Protection Act, 1986.
Section 27 of Consumer Protection Act, 1986 is no doubt a remedy to execute the order passed by the District Forum. However, it is a penal remedy in case of a failure or omission to comply with the order passed by District Forum. Such person shall be punishable with an imprisonment of 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 Rs.2,000/- but which may extend to Rs.10,000/- or with both. Sub Section (2) of Section 27 has provided that not-withstanding anything contained in a Code of Criminal Procedure, 1973 the Consumer Fora have power of Judicial Magistrate, First Class for trial of offences under this Act and shall be deemed to be a Judicial Magistrate, First Class for the purpose of Code of Criminal Procedure,1973. Thus, District Forum gets power of Judicial Magistrate, First Class by a legal fiction. At this juncture, it is required to be noted that any individual member of District Forum is not given power of Judicial Magistrate, First Class but the District Forum has composite body as composed under Section 10 of Consumer Protection Act, 1986 is constituted as a Judicial Magistrate, First Class. Therefore, District Forum possesses the power of Judicial Magistrate, First Class and not the individual member. Thus, it is a joint composition of Judicial Magistrate, First Class. The said District Forum as a Judicial Magistrate, First Class is empowered to punish and try the offence under this Act.
Sub Section (3) of Section 27 prescribed a procedure to be followed by a Consumer Fora. It provides that all offences under this Act may be tried summarily by the Consumer Fora. Therefore, the offences under this Act are expected to be tried summarily. No doubt in Sub Section (3) there is no direct reference to summary proceedings and procedure in the summary proceedings as provided under Code of Criminal Procedure Code, 1973. The non-obstance clause which appears in Sub Section (2) of Section 27 is only applicable in respect of constitution of District Forum to that of Judicial Magistrate, First Class and therefore, while reading Sub Section (3) the non-obstance clause from Sub Section (2) cannot be read. Therefore, it naturally follows that when the trial is to be conducted of a offence by the Consumer Fora exercising the powers of Judicial Magistrate, First Class, said trial is expected to be a criminal trial and therefore, the procedure of a summary criminal trial shall have to be followed and said procedure has been provided in Chapter XX and XXI of Code of Criminal Procedure Code, 1973 and therefore, the ultimate analysis comes to that, that whenever District Forum is exercising the powers of Judicial Magistrate, First Class and tries an office as provided under Sub Section (1) of Section 27, the said District Forum has to follow the procedure of a summary trial as provided in Chapter XX and XXI of Criminal Procedure Code, 1973. Therefore, on presentation of an application for execution under Section 27, the District Forum as deemed Judicial Magistrate, First Class shall take cognizance of offence and issue summons to the parties who has failed and omitted to comply with the orders. On service of a summons when the opp.party appears, in order to secure their presence in the said criminal trial, District Consumer Redressal Forum shall grant bail to the party provided the party makes an application for the bail. If the party does not make an application for the bail, there are two option to the District Forum : (1) to proceed further for trial of the case as provided under Chapter XX and XXI of Criminal Procedure Code, 1973 and (2) for whatever reasons the trial is not possible on that day then in the absence of a bail application by the opp.party, the District Forum can take the opp.party in judicial custody. However, normally the opp.party in order to avoid the detention in the judicial custody makes an application for bail. Such application shall be dealt with by the District Forum in accordance with the provisions of bail. It is further clarified that if the opp.party are unaware of the procedure and therefore, even though have made an application for bail but have not brought the sureties, the District Forum can consider to release the opp.party on execution of a personal bond till the next date so as to enable the opp.party to comply with the bail and/or can release the opp.party on deposit of bail amount ( we clarified this amount is an amount of bail and not an amount to be recovered in view of the orders passed in the complaint). In case where the bail is granted as stated above, on adjourned date the District Forum shall try the offence summarily as provided in Chapter XX and XXI of Criminal Procedure Code, 1973 and shall decide as to whether offence has been established and if District Forum comes to the conclusion that the offence is established, shall impose a punishment as provided in Sub Section (1) of Section 27. This is a procedure which is required to be followed by the District Forum while trying the offence summarily.
At this juncture, it is clarified that the District Forum is constituted under Section 10. Under Section 12 the provision has been made the manner in which the complaint shall be made to the District Forum. Under Section 13 the procedure on admission of a complaint to be followed by the District Forum has been provided for. Section 14 deals with finding of District Forum and remedies and directions which can be given by the District Forum. Section 14 specifically states that after conducting proceedings under Section 13, District Forum if satisfied can record the finding and grant reliefs as stated in the said Section 14. Therefore after presentation of the complain, under Section 12, District Forum is supposed to follow the procedure as provided in Section 13 & 14 to dispose of the complaint. Sub Section (2) of Section 14 states that every proceeding referred to in Sub Section (1) shall be conducted by the President of District Forum and at least one member thereof sitting altogether. It is further provided that where a member for any reasons is unable to conduct the proceeding till it is completed; the President and other members shall continue the proceeding from the stage at which it was last heard by the previous member. Therefore, while deciding the complaint filed under Section 12, the President and one member at least are necessary to form a quorum. Proviso to Sub Section (2) of Section 14 only permits substitution of a member but in any circumstances presence of President is a must. Only one of the members can attend and can be substituted as provided under Sub Section (2) of Section 14. However, the ideal situation is that that three members shall hear to decide the complaint. This is being considered for the purpose of procedure which has been provided while dealing with a complaint under Section 12 cannot be invoked while dealing with application under Section 27. While dealing with complaint under Section 12, the District Forum has powers vested in civil court under Code of Civil Procedure, 1908 while trying a suit as provided under Sub Section (4) of Section 13. It is further contemplated by sub Section (6) of Section 13 that in a representative complaint the provisions of order I rule 8 of Civil Procedure Code are required to be followed. Thus, while dealing with a complaint under Section 12, District Forum exercises jurisdiction of civil nature and decide the said complaint in quasi judicial manner. However, when the District Forum deals with an application under Section 27 it deals it as Judicial Magistrate First Class and it holds a trial for the offence under the Act, namely, Section 27 (1) and therefore while exercising the power under Section 27 the District Forum is a court of Criminal Procedure Code, 1973 dealing with criminal trial by following procedure of a summary trial. In Section 27 the provision like 14(2) referred to above has not been incorporated and therefore, as has been analyzed in above paragraph the District Forum being Judicial Magistrate First Class in composite manner, the individual member of the said District Consumer Redressal Forum cannot exercise the power under Section 27. Therefore, where the District Consumer Redressal Forum is constituted with appointment of three members as per Act, the provisions under Section 27 shall be exercised by such District Forums sitting together by all the members. Next question that arises for consideration in view of above position of law is what would happen to proceedings under Section 27 of Consumer Protection Act, 1986 if District Consumer Redressal Forum is having only two members, namely, President and Member. It is to be noted that such District Consumer Redressal Forum though many conduct complaint under Section 12 may appear to be incompetent to conduct proceedings under Section 27. However, such approach is not correct. The vacancy in such District Consumer Redressal Forum is because the post is/was not filled in. In such circumstances, such District Consumer Redressal Forum though consists of President and one Member can exercise the powers under Section 27 of the Act and to that extent Section 29 (A) has protected the proceeding. Section 29 (A) provides that no Act or proceeding of District Forum, State Commission, National Commission shall be invalid by reason only of the existence of the vacancy amongst its members or defect in the constitution thereof. However, this section will protect so far as Section 27 is concerned to the extent of non-
filling of vacancy of one of the members. But where the President and two Members are in office and there is no vacancy, the application under Section 27 will have to be dealt with by the President and two members altogether as District Forum has been constituted as Judicial Magistrate First Class of Sub Section (2) of Section 27 and that to by a legal fiction. It is further clarified that one member or President alone cannot exercise the powers under Section 27 of Consumer Protection Act, 1986. (These observations will not apply to application under Section 27 when it is dealt with by State Commission because Benches of State Commission are constituted by President of State Commission under Section 13 of the Act).
It is to be noted that in the present case no such procedure is followed by the District Consumer Redressal Forum, Satara. All orders in the proceedings and more specifically, impugned order have been passed by President of District Consumer Redressal Forum only. Not only that but the initial warrant was issued for recovery of amount. Even the respondent has prayed that as the amount as directed in the complaint has not been paid, non-bailable warrant be issued. Not only that the provisions of Chapter XX and XXI of C.R.P.C. were ignored by the District Consumer Redressal Forum. It also appears that revision petitioners have not personally appeared and offered bail application and/or offered sureties and/or personal bond for appearance. The whole procedure adopted so far is not in accordance with the procedure as we have clarified in this order. Therefore, impugned orders are bad and illegal and we set aside all the orders passed in proceedings under Section 27 of the Act.
We hereby direct that revision petitioner shall appear before District Consumer Redressal Forum within two weeks from the date of receipt of free copy of this order and shall submit bail application before the District Consumer Redressal Forum, Satara. The said District Consumer Redressal Forum shall consider said application in accordance with law. The District Consumer Redressal Forum shall follow the procedure as discussed and stated in this order and shall dispose of the application under Section 27 of the Act. Revision petition is allowed accordingly. Hence, we pass the following order:-
:-ORDER-:
1.
Revision Petitions no.140 and 147/2009 are allowed and impugned order is set aside.
2. The application under Section 27 shall be proceeded from inception, de novo, in light of the observations made by us.
3. All the revision petitioners to remain present before District Forum on 09/01/2010 and shall make appropriate application for bail.
4. Parties shall bear their costs.
5. Dictated in open court in presence of parties.
6. Copies of the order herein be furnished to the parties.
(S.R.Khanzode) (S.B.Mhase) Judicial Member President Nbh