Gujarat High Court
Rameshbhai Bhagwanjibhai Thakkar vs State Of Gujarat on 20 July, 2023
NEUTRAL CITATION
R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1944 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 912 of 2021
With
R/SPECIAL CRIMINAL APPLICATION NO. 1973 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 1940 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 1945 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 1948 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 1949 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 1950 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 1946 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 1962 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 1971 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 1974 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 1970 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 1958 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 1968 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 1969 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 1963 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 1961 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 1976 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 1959 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 1977 of 2020
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NEUTRAL CITATION
R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023
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FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RAMESHBHAI BHAGWANJIBHAI THAKKAR
Versus
STATE OF GUJARAT
==========================================================
Appearance:
AADITYA D BHATT(8580) for the Applicant(s) No. 1
CHANDNI S JOSHI(9490) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MR. SOAHAM JOSHI, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 20/07/2023
COMMON ORAL JUDGMENT
1. The present group of petitions are filed by the petitioner/(s) in respective petitions by challenging the order dated 5.8.2019 in respective petitions passed by the Consumer Forum Kutch Bhuj and prayers as sought for, as under:-
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NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined "a. Your lordships may be pleased to issue appropriate writ, and quash and set aside the order dated.05.08.2019 passed by Ld. Hon'ble Consumer Forum Kutch Bhuj; and thereby be pleased to hold that the proceedings under Section 27 are of Criminal nature, and cannot be invoked under proceedings under Section 25, which is a Civil provision and that Section 27 proceedings needs to be separately invoked and clubbing of Civil and Criminal Proceedings is not permissible.
b. Pending admission, hearing and final disposal of the present matter Your Lordship be pleased to stay the execution and implementation of the so proceedings initiated under Section 27 of the Consumer Protection Act, vide the order dated. 05.08.2019, when the Complaint has been filed under Section 25 of the Consumer Protection Act.
c. Any other and further order that the Hon'ble court may deem fit, just and proper in the interest of justice."
2. Special Criminal Application No.1944 of 2020 is considered as the lead matter. All the captioned petitions Page 3 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined are identical in nature, with different impugned Tamil Application Numbers, as follows:
Sr. Special Criminal Tamil Application No. Application No. (Consumer Complaint No.)
1. 1944 30 of 2016
2. 912 37 of 2016
3. 1973 02 of 2016
4. 1940 96 of 2016
5. 1945 97 of 2016
6. 1948 90 of 2016
7. 1949 94 of 2016
8. 1950 38 of 2016
9. 1946 95 of 2016
10. 1962 34 of 2016
11. 1971 35 of 2016
12. 1974 31 of 2016
13. 1970 42 of 2016
14. 1958 36 of 2016 Page 4 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined
15. 1968 33 of 2016
16. 1969 40 of 2016
17. 1963 39 of 2016
18. 1961 32 of 2016
19. 1976 41 of 2016
20. 1959 43 of 2016
21. 1977 60 of 2016
3. The present petitioner raises the following Fundamental Questions of Law before this Hon'ble Court under article 226 and 227 of the Constitution of India, along with the relevant provisions of consumer Protection Act:
a). That a Consumer complaint No. 30 of 2016 was filed before the District consumer grievance and redressal forum, Bhuj, alleging various illegalities to have been committed by the firm Mahavir Developers, and subsequently Hanumant Developers. That pursuant to the said Consumer complaint No. 30 of 2016 filed before the District consumer redressal forum, Bhuj; the learned forum was pleased to pass an order dated 01.10.2016 Page 5 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined whereby an order was passed against the present petitioner,
b). That because of the reasons beyond the control of the present petitioner, the petitioner in due time could not file the Appeal challenging the said order; and at the same he could not comply with the order aforesaid order dated. 01.10.2016. However, it is reiterated that it was not with an intention to disobey the orders but circumstantially it was impossible for the petitioner to comply with the orders/direction of the district forum.
c). That pursuant to the passing of the order dated 01.10.2016, by the District consumer grievance and redressal forum, Bhuj, as the respondents had allegedly failed to comply with the order of the learned forum, and enforcement application under Section 25 of the Consumer Protection Act was filed by the complainant of the Consumer complaint No. 30 of 2016, also known as "Tamil Arji/Darkhast", vide the Application dated 23.11.2016. That because the petitioner of the present petition had changed the residences from Kutch to Anand, the summonses issued to the present petitioner Page 6 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined under Section 25 of the Consumer Disputes Redressal Act were not served upon the present petitioner and therefore the learned forum was constrained to issue non-bailable warrants under the various cases pending against the present petitioner and the other developers of the same firm in the joint capacity. That the said warrant was served upon the present petitioner and he was detained under the said warrant which was issued to him originally under Section 25 of the Consumer Protection Act, and he was further transferred into the custody of jail superintendent at Palara, Bhuj and Kutch.
d). That the present petitioner was taken into the custody under the Jail superintendent, Palara, Kutch Bhuj, and thereafter one application was moved by the a complainant in some Other Enforcement Application, requesting the learned District consumer grievance at redressal forum, Bhuj and Kutch to exercise the powers under Section 27 of the Consumer Protection Act (which would be impermissible in the eyes of law and would also be demonstrated to the Hon'ble Court); however, while exercising the powers under Section 27, the present petitioner was ordered to be taken into custody. Page 7 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023
NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined Section 25 of the Consumer Protection Act was filed by the complainant of the Consumer complaint No. 30 of 2016
e). That the present petitioner under the impression that the exercise of the powers by the District Consumer Grievance Redressal Forum, under Section 27 was appropriate, he had made an application in the Enforcement Proceedings No. 77 of 2017 whereby he prayed to be released on bail.
f). Thereafter, the Ld. Consumer Forum had passed order dated.17.03.2018, Wherein the present petition had been sent to the judicial custody for the uncertain time. Therefore the present petitioner had approached before this Hon'ble Court challenging the order dated.17.03.2018 by filing Special Civil Application being No. 2885 of 2019. and thereafter by considering the facts of the case and circumstances of the case this Hon'ble Court directed to the Concern Jail Authority to release the present petitioner as the Order dated.17.03.2018 passed under section 27 of Consumer Protection Act is illegal and further passed order that when application under Section 25 of the Consumer Protection Act has been filed Section Page 8 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined 27 power can not be exercised by way of passing order dated. 03.05.2019.
g). That Even after cristal clear direction has been given by this Hon'ble Court the Ld. Consumer Forum keeps exercising power under Section 27, when the application has been filed under Section 25 of the Consumer Protection Act. Therefore, the present petitioner had filed the Criminal Misc. Application No.1 of 2019 in Special Criminal Application No. 11142 of 2018 (Main Matter) for Clarification of the main order dated. 03.05.2019, and this Hon'ble Court had clarified order as stated under on 29.11.2019.
h). That the present petitioner is in no financial capacity to comply with the order of the District Consumer Forum, however there is no willful disobedience of the order dated. 01.10.2016, by the present petitioner. It must here be noted that the petitioner has offered to give his land instead of hard cash in due compliance of the order; a copy of the purshish dated.23.10.2019 submitted in support of the contention.
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NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined
i). Hence, the present application is preferred.
4. Heard learned advocate Mr. Aaditya D. Bhatt for the petitioner and Mr. Soaham Joshi, learned Assistant Public Prosecutor (APP) for and on behalf of respondent No.1 - State.
Though served, none chosen to appear for and on behalf of respondent No.2 - original complainant in the respective petitions. Hence, the matter is taken up for final disposal of the present petition/(s). 5.1 Learned advocate Mr. Aaditya D. Bhatt, representing the petitioner, has argued that the moot question involved in the current petition, i.e., Special Criminal Application No. 1944 of 2020, pertains to the "Tamil Arji/Darkhast" (Tamil application) filed under Section 25 of the Consumer Protection Act, bearing Consumer Complaint No. 30 of 2016. The said Tamil Arji is currently pending before the Consumer Forum. Due to the petitioner's change of residence from Kuchcha to Anand, the summons issued under Section 25 of the Page 10 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined Consumer Protection Act were not served upon the petitioner. Consequently, the Consumer Forum had to issue non-bailable warrants against the petitioner in various cases involving both the present petitioner and other developers jointly.
5.2 Subsequently, the warrant was served on the present petitioner, and he was detained under the same warrant initially issued under Section 25 of the Consumer Protection Act. He was then transferred into the custody of Jail Superintendent, Palara, Buchcha, Khuj. Afterward, the complainant made an application in some other Enforcement Application, requesting the District Consumer Grievance Redressal Forum, Bhuj, to exercise the powers under Section 27 of the Consumer Protection Act. The petitioner argues that such an application itself is not permissible in the eyes of the law. However, while exercising the powers, the present petitioner was ordered to be taken into custody. Subsequently, under the impression that the exercise of powers by the District Consumer Grievance Redressal Forum, Bhuj, to exercise the powers under Section 27 of the Consumer Protection Act was appropriate, the Page 11 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined petitioner filed an application in Enforcement Application No. 77 of 2017, seeking release on bail. However, on 17.3.2018, the Consumer Forum passed an order sending the petitioner to judicial custody for an uncertain time. 5.3 Challenging the order dated 17.3.2018, the petitioner approached this Court by filing Special Civil Application No. 2885 of 2019. After considering the facts and circumstances of the case, the Hon'ble Court directed the concerned Jail Authority to release the petitioner, as the order dated 17.3.2018, passed under Section 27 of the Consumer Protection Act, was deemed illegal. The Court also emphasized that when an application under Section 25 of the Consumer Protection Act has been filed, the provisions of Section 27 of the Consumer Protection Act cannot be exercised, as done in the impugned order dated 3.5.2019. Despite the clear directions given by the Hon'ble Court, the Consumer Forum continued to exercise the power under Section 27 of the Consumer Protection Act in applications where Section 25 of the Consumer Protection Act was filed.
5.4 In light of this, the present petitioner filed Criminal Misc. Application No.1 of 2019 in the main matter of Page 12 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined Special Criminal Application No. 11142 of 2018, seeking clarification of the main order dated 3.5.2019. The Court provided the clarification on 29.11.2019 as stated below. The petitioner's counsel further contends that the petitioner lacked the financial capacity to comply with the order of the District Consumer Forum. Nevertheless, the petitioner asserts that there was no willful disobedience of the order dated 1.10.2016 passed by the Consumer Forum on the petitioner's part. The petitioner had offered land in lieu of hard cash to comply with the order, but the other party did not accept it. Therefore, he has submitted that the present petition is required to be filed.
5.5 The petitioner heavily relies on the order dated 18.4.2019 passed by this Court in Special Criminal Application No. 11142 of 2018, specifically, the observation made in para 9.1 (15.8), and submits that the Court has explicitly stated that powers exercised under the provisions of the Civil Procedure Code cannot be exercised under the provisions of the Criminal Procedure Code.
5.6 Additionally, the petitioner's counsel has brought to Page 13 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined the Court's attention the further affidavit filed by the present petitioner in related matters, specifically, Special Criminal Application No. 1973 of 2020. In this affidavit, the petitioner has presented additional documentary evidence and copies of certain judgments, including the judgment of the Hon'ble Apex Court in the case of Jolly George Varghese and Others versus The Bank of Cochin reported in AIR 1980 SC 470. Furthermore, the counsel has relied upon the judgment of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai, in the case of Amir Ali Tharani versus Rajesh Sukhtnkar and Others reported in II (2011) CPJ 23 (Maha.), and also on the judgment of the Delhi State Consumer Disputes Redressal Commission SCDRC New Delhi, in the case of Om Prakash Bhatia versus M/s. Deepu Chits Pvt. Ltd. and Others reported in legalcrystal.com/1114480 dated 10.2.1993.
5.7 Based on the aforementioned judgments, the counsel argues that the proceedings initiated under Section 25 of the Consumer Protection Act, resulting in the impugned order passed under Section 27 of the Consumer Protection Act, are not permissible in the eyes of the Page 14 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined law. Consequently, the counsel contends that the present petition should be allowed.
5.8 Moreover, the counsel submits that, considering the totality of the facts and circumstances, the prosecution should be pursued independently and not in the proceedings where the application under Section 25 is pending. Therefore, the impugned order is considered unjust and improper, and the counsel urges this Court to intervene. The counsel asserts that all the petitions have been filed based on the aforementioned contentions, and thus, this Court can simultaneously decide all the petitions by taking into account the submissions made in the present petition for all related matters. 6.1 On the contrary, Mr. Soaham Joshi, the learned Assistant Public Prosecutor representing respondent No. 1
- the State, has presented his arguments. He contends that the impugned order, passed by the trial court, was issued under Section 27 of the Consumer Protection Act. He directs the Court's attention to the content of the said order, where the Consumer Forum considered that under the provisions of Section 362 of the Criminal Procedure Code, there is a provision for summary Page 15 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined procedure, and accordingly, the forum is bound to conduct a summary trial as the present petitioner has failed to pay the amount to the complainant. 6.2 At the relevant point in time, the Forum passed an order below Exh. 18, which was filed by the learned advocate for the present petitioner, seeking not to award any sentence to the petitioner. However, at that time, the summary trial was not conducted. Consequently, the present petition, i.e., Special Criminal Application No. 2851 of 2019, was filed, and the learned Court ordered to conduct the trial under Section 362 of the Criminal Procedure Code. As a result, the learned Forum issued a notice to the petitioner to give a reply or produce evidence in defense. This order is now being challenged. 6.3 Mr. Soaham Joshi argues that it is not disputed that this Court passed the appropriate order at the relevant time to conduct the summary trial under Section 362 of the Cr.P.C., and accordingly, the Consumer Forum issued the notice/summons to produce the reply/defense or documentary evidence related to why the petitioner did not pay the amount to the complainant. Therefore, he contends that in the given Page 16 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined facts and circumstances, the petitioner has an alternative and effective remedy through an appeal before the State Consumer Commission under Section 17 read with Section 19 of the Consumer Protection Act. Hence, the present petition cannot be entertained. 6.4 Furthermore, he asserts that the impugned order is not in contravention of any provisions of the Consumer Protection Act and is, in fact, in accordance with the powers under Section 27 of the Consumer Protection Act. Therefore, he submits that the present petition(s) merit dismissal, as they lack substance, and the petitioner, who is the defaulter, has not paid the substantial amount to the complainants in the consumer complaints even after the order passed by the Consumer Forum in their respective complaints. Considering this conduct, he maintains that the present petition(s) must be dismissed. 7.1 I have heard rival submissions made at the bar by the respective parties. I have perused the earlier order passed by this Court. I have considered the impugned order in the respective petitions.
7.2 7.2 The learned Assistant Public Prosecutor's Page 17 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined submission is indeed compelling. The impugned order appears to be a result of conducting a summary trial under Section 362 of the Criminal Procedure Code, which was directed in Special Criminal Application No. 2851 of 2019. Moreover, the record indicates that there are judgments and orders passed in Consumer Complaint No. 30 of 2016 in Special Criminal Application No. 1944 of 2020 (Tamil Arzi No. 77 of 2016 - Execution Petition) dated 5.8.2019. In light of these circumstances, it is pertinent to refer to the provisions of Sections 17, 19, 25, and 27 of the Consumer Protection Act, 1986, as follows:
"Section 17 in the Consumer Protection Act, 1986:-
17. Jurisdiction of the State Commission.--
(1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction--
(a) to entertain--
(i) complaints where the value of the goods or services and compensation, if any, claimed 2[exceeds rupees twenty lakhs but does not exceed rupees one crore]; and
(ii) appeals against the orders of any District Forum within the State; and Page 18 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity.
(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,--
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises. Page 19 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023
NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined Section 19 in the Consumer Protection Act, 1986:-
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 25 in the Consumer Protection Act, 1986:-
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 Page 20 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined 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 or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or Page 21 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined the National Commission, as the case may be, such trader or person 96 [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."
7.3 Upon considering the relevant provisions, it is evident that the impugned order was passed by the Consumer Forum, exercising its powers under the Consumer Protection Act, as the petitioner failed to Page 22 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined comply with the direction to pay the amount to the complainants in the Consumer Complaints. There are multiple petitions filed before this Court where various individuals have not received payment from the petitioner, arising from different complaints. The petitioner's conduct speaks volume for itself, indicating a reluctance to pay any amount and engaging in repetitive petitions with hyper-technical defenses, seemingly with the intention to harass the complainants and avoid paying the due compensation.
7.4 The records show that a remedy is available under Section 19 of the Consumer Protection Act since the Consumer Forum has already passed the order. Therefore, an appeal is provided under the said Act, and if the petitioner is aggrieved by the impugned order, he should have preferred an appeal before the concerned State Commission instead of filing Special Criminal Application No. 1944 of 2020. In light of the alternative and efficacious remedy available under the law, I am of the opinion that the present petition need not be entertained. The Consumer Protection Act is intended to be beneficial legislation, and the benefits of the Act Page 23 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined should be extended to aggrieved consumers as expeditiously as possible. However, the present petitioner has managed to evade liability since 2016, even though the complainants obtained judgment in the same year, and until 2023, they have been deprived of the fruits of that judgment.
7.5 It is observed that prima facie the present petition itself is not maintainable due to the existence of an alternative and efficacious remedy. Despite this, the contention is raised that the proceedings under Section 27 of the Consumer Protection Act cannot be initiated in the proceedings filed under Section 25 of the Consumer Protection Act.
7.6 Considering the same and also considering the judgment cited at the bar by the learned advocate for the petitioner, more particularly, the judgment passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai in the case of Amir Ali Tharani (supra), specifically, paragraphs 37 and 38 of that judgment are relevant, as under:
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NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined "37. Thus, on reading sections 4&5, it is clear that the Consumer Fora which are constituted as deemed Judicial Magistrate of the first class for the purposes of the Code of Criminal Procedure to try the offences under this Act are dealing with the offences under any other law than the Indian Penal Code when they are exercising powers under section 27 of Consumer Protection Act, 1986. Section 27(1) makes out and states the offence and the punishment for the said offence. It also states that who can be punished and who can punish. Sub-section (2) of section 27 as stated earlier, gives power to try the offence under this Act and the status of Judicial Magistrate of the first class to Consumer Fora for the purposes of the Code of Criminal Procedure. Therefore, reading these provisions along with Sections 4(2)&5 of Code of Criminal Procedure, the Consumer Fora being a Judicial Magistrate of the first class has to follow the procedure as provided in the Code of Criminal Procedure, however, subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. It has been also declared by Section 5 of Code of Criminal Procedure that nothing contained in this Code shall, in the absence of specific provision to the contrary, affect any special or local law for the time being in force, or any special Page 25 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. So, on reading these provisions it follows that the procedure as provided in the Code of Criminal Procedure is required to be followed subject to and without affecting to the procedure as provided in any special or local law or any special jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force. In short, the procedure as provided in the special law will prevail upon and will modify the procedure as provided in the Code of Criminal procedure to the extent as is stated in the special law and the special law will prevail to the extent of provisions as provided in the special law as against the General Criminal Procedure Code. Thus, looking to the provisions of section 27 (2)&(3) of the Act, at the cost of repetition, it is held that the Consumer Fora being a deemed Judicial Magistrate of the first class for the purpose of Code of Criminal Procedure shall have the powers of Judicial Magistrate of the first class for the trial of offence under this Act and said deemed Judicial Magistrate of the first class shall try offence under this Act summarily. In view of this, Chapter XX & XXI of Code of Criminal Procedure will be applicable to trial under section 27. Chapter XXI deals with summary trials by a Criminal Court and Page 26 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined therefore section 260 & 265 will have to be followed by the Consumer Fora while exercising powers of Judicial Magistrate of the first class under section 27.
Section 262 which provides for procedure for summary trial states that the procedure specified for trial of summons-case shall be followed except as hereinafter mentioned. In view of this, Chapter XX of Code of Criminal Procedure deals with the trial of summons- cases by Magistrate may equally apply. However, any part of these provisions, namely, Chapter XX & XXI, which are otherwise than the special procedure provided under section 27 (2)&(3) shall not be followed. For example, section 262 sub-section (2) provides no sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter. Therefore, a query may raise, if the procedure as provided under this Chapter is to be followed, conviction exceeding three months cannot be granted. Since this provision is otherwise than the conviction provided under section 27 (1) will not be applicable in view of provisions of section 4(2) & (5) of the Code of Criminal Procedure, referred to above. Therefore, reading sub-section (2) & (3) of section 27, we find that only these provisions as incorporated in Chapter XX & XXI are applicable for the trial of the case. However, trial of the case is one part and dealing with the case is another part from its Page 27 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined inception. The power of trial is given and so also the Consumer Fora have been made Judicial Magistrate of the first class for the purposes of the Code of Criminal Procedure. In short, therefore, accepting the limitation and procedure in sub-section (2) & (3) of section 27 and subject to these provisions, other provisions of the Code of Criminal Procedure will be applicable for dealing with the application under section 27 by the Consumer Fora. It is to be noted that section 29 (2) of Code of Criminal Procedure which states the power of Judicial Magistrate of the first class provides that he may pass a sentence of imprisonment for not exceeding three years, or of fine not exceeding 10,000/-, or both, the said provisions of Code of Criminal Procedure and the provision as contained under section 27(1) providing power of punishment is one and the same. Thus, what we find that to the extent of difference in the procedure, Code of Criminal Procedure will not be applicable and in that circumstances, procedure and provisions as provided in the Consumer Protection Act, 1986 will survive as it is other law or a special law providing for the offences and trial of offences. Same will be a position while dealing with appeal under Section 27-A of Consumer Protection Act, 1986.
38. In the result, following procedure is required to Page 28 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined be followed in an application under section 27 i.e. whenever the application under section 27 is presented by the applicant, the Consumer Fora shall satisfy itself on examination or verification that there is failure or omission to obey the order of Consumer Fora by opponent and shall take a cognizance under section 190 of Code of Criminal Procedure and shall issue summons process for the appearance of accused/opponent along with copy of application. After summons is served on the other side, namely, opponent/accused, he shall appear before the Consumer Fora alias Judicial Magistrate of the first class and shall submit an application for the purpose of getting a bail so as to secure the presence and attendance of the opponent/accused. If on the date of first appearance, opponent remains absent, the Consumer Fora may consider to pass an order for bailable warrant to secure the presence. If on the first date, opponent/accused appears either personally or through Advocate and if it is not possible to proceed for summary trial as provided under the Act, opponent/accused shall submit an application for bail and the said application shall be dealt with by the Consumer Fora on its own merits. However, the Consumer Fora will keep in mind that the bail is rule and jail is exception and thus, consider the application for bail. If after grant of bail, opponent/accused Page 29 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined furnished personal bond and surety as directed by the Consumer Fora, same shall be accepted by the Consumer Fora as Judicial Magistrate of the first class and the forms of PR Bond and Surety as provided under the Code of Criminal Procedure may be followed. If for whatever reasons, the opponent/accused is not possessed of surety along with him on the first day of appearance, then, the opponent/accused may submit an application to release him on execution of PR Bond and further requesting to grant time for furnishing the surety of the bail. Such application may be considered by the Consumer Fora in its discretion in accordance with law. The Consumer Fora shall see that before the next date, bail bonds are executed. If it finds after service of summons and/or after the appearance and execution of PR Bond and/or bail as surety, opponent/accused remained absent, the Consumer Fora acting as Judicial Magistrate of the first class may issue a bailable warrant and if at that time only PR Bond has been executed may forfeit the PR Bond and proceed for recovery of said amount. If, on that date, it is found that bail bond has already been executed but the opponent/accused is absent, the Consumer Fora acting as the Judicial Magistrate of the first class may issue notices to the sureties to secure presence of the opponent/accused and equally to show-cause why the amount of bail shall not be forfeited and recovered Page 30 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined from the sureties. If the sureties secured the presence of the opponent/accused and/or opponent/accused himself appeared and/or is brought under bailable warrant, the Consumer Fora may consider as to whether further the opponent/accused shall be kept on bail or not. The Consumer Fora has also to keep in mind that these cases under section 27 shall not be treated as regular criminal trials, but they shall try to deal with these cases in the summary manner as provided under the Code of Criminal Procedure Chapter XX & XXI and therefore, instead of allowing the opponent/accused protracting the criminal trial either by remaining absent and/or by any other method, the Consumer Fora while acting as Judicial Magistrate of the first class under section 27 shall be diligent and prompt to conclude the summary trial as provided under Chapter XX & XXI. It is to be noted that in proceeding under section 27, it is not expected that opponent/accused shall explain by filing a reply as to why he could not comply with the order. Such procedure is not contemplated in the Criminal Court. Therefore, by following the procedure as early as possible, the Consumer Fora shall explain the substance of accusation to the opponent/accused as provided under section 251 and shall record a plea of guilt and thereafter follow the procedure as stated in section 263 & 264 and deliver a judgement as provided under Page 31 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined section 265. This procedure is required to be followed. We have noticed that such procedure is not followed. Instead, the Consumer Fora go on liberally granting time to the opponent/accused and thus cases are pending for years together. We have also noted that some of the District Consumer Forums go on accepting part payments instead of concluding a trial as expected under section 27 of the Act. Section 27 contemplates a total compliance of the order. It is a criminal action, so as to have deterrent effect on a person who is supposed to obey the orders of the Consumer Fora, so as to give earlier reliefs to the consumer. Therefore, instead of providing a civil remedy, the Legislature has deleted old section 25 and modified section 25 and so also carried out amendment in section 27 by introduction of sub-section (2) & (3) and the Legislature desires that there should be an immediate implementation of the orders and therefore, while disposing of the complaint filed under section 12, summary procedure is provided under section 13 & 14 and similarly the speedy and expeditious procedure has been provided for implementation of execution of interims orders of the Consumer Fora. So also sub- section (3) of section 25 is introduced for limited purpose of amounts recoverable under the orders of the Consumer Fora. So also the section 25 has been modified so as to implement any order, namely, interim Page 32 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined order, final order or any other orders. Under section 27, all types of orders, namely, recovery of the amount, delivery of possession of the property, substitution of the goods, etc. can be executed by following procedure as laid down under the said section and explained in the above paras of the judgement. In short, the Legislature intends to give a fastest relief. That has to be kept in mind as a motto for the earliest disposal of the cases by the Consumer Fora. Only restraint, the Consumer Fora has to observe that the justice hurried shall not be justice buried, but the Consumer Fora shall do it by following the procedure as laid down under the law. Therefore, keeping in mind this aspect, the application under section 27 shall be dealt with by the Consumer Fora while acting as Judicial Magistrate of the first class. Therefore, the Consumer Fora has to follow the procedure as stated above. It is required to be mentioned that the remedy under section 27 is not a civil remedy, but is a criminal remedy. It results into a punishment of an imprisonment, recovery of fine or both. It has deterrent effect, so that the opponent/accused obeys or complies with the order of the Consumer Fora. This distinct and separate remedy is available to the consumer. This remedy is quite a distinct and different from the remedy available under section 25(3) for recovery of the amounts under the orders of the Page 33 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined Consumer Fora. That remedy is a civil remedy under which the ultimate power of execution of orders of the Consumer Fora is vested with the Collector or nominees of the Collector on the basis of certificate-the amounts are recovered as arrears of land revenue. The limitation in respect of that remedy, we have considered in earlier part of this judgement namely, recovery of the amount, but any other orders passed by the Consumer Fora cannot be executed under section 25(3). However, under section 27 any order, namely order for recovery of the amount and for delivery of possession of immovable property, substitution and/or giving of new goods after accepting old goods, etc. can be executed by punishing persons after trial as provided in Section 27(3) of Consumer Protection Act, 1986. Therefore, these two remedies which required a distinct and separate procedure to be followed by the Consumer Fora can not be clubbed together. However, it will be open for the complainant or the person who is entitled to execute the orders of the Consumer Fora to follow both the remedies simultaneously by filing a separate application. A composite application under Section 25(3) and 27 shall not be tenable. If any of the parties files a composite application, then the Consumer Fora shall give choice to select his remedy and/or shall give direction to file separate application. It will not be open for the opponent to contend that Page 34 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined the person entitled to execute the order shall follow the proceeding under section 25 first in case the order of Consumer Fora is of recovery of the amount. The person entitled to execute the order may simultaneously file two separate proceedings and the Consumer Fora may proceed to dispose of these two proceedings by following separate and distinct procedure as pointed out under this judgement and order." Whereby the observation in para 38 reads as under:-
"The Consumer Fora has also to keep in mind that these cases under Section 27 shall not be treated as regular criminal trails, but they shall try to deal with these cases in summary manner as provided under the Code of Criminal Procedure Chapter xx and xxi and therefore, instead of allowing the opponent/accused protracting the criminal trial either by remaining absent and/or by any other method, the Consumer Fora while acting as Judicial Magistrate of the first class under Section 27 shall be diligent and prompt to conclude the summary trial as provided under Chapters XX and XXI. It is to be noted that in proceedings under Section 27, it is not expected that opponent/accused shall explain by filing a reply as to why he could not comply with the order. Page 35 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023
NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined This observation of the Consumer Fora goes against present petitioner.
7.7 Based on the content provided, the learned advocate for the petitioner has cited the judgment of the Hon'ble Apex Court in the case of Jolly George Varghese and Others (supra), specifically, referring to paragraph 16 of the judgment. In this paragraph, it is observed that "Equally meaningful is the import of Article 21 of the Constitution in the context of imprisonment for non- payment of debts." The petitioner's advocate contends that this observation implies that a person should not be imprisoned for their inability to repay debts, in line with the principles enshrined in Article 21 of the Constitution of India. However, it is noted that the specific provisions of the Consumer Protection Act need to be considered as a beneficial piece of legislation, aimed at reducing the suffering of consumers who have been defrauded or cheated, like in the present case. It seems that the petitioner's advocate is trying to argue that the provisions of the Consumer Protection Act should take precedence over the general principles of imprisonment for debt and that the Act aims to protect consumers Page 36 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined from unscrupulous individuals like the present petitioner who have not fulfilled their financial obligations. 7.8 Now in the case of Om Prakash Bhatia (supra), specifically, paragraphs 6 to 9 are relevant, as under:
"6. Section 27 relates to prosecution of the judgment debtor and it provides penalties for non-compliance of the order of the Redressal Agencies by him. Under this Section non-compliance of the order by the Redressal Agencies is punishable with imprisonment for a term up to 3 years or with a fine upto Rs. 10,000/- or with both. It also provides minimum punishment. It is mentioned in the Section that the punishment by way of imprisonment shall not be less than 1 month and by way of fine shall not be less than Rs. 2,000/-. However, the Agencies have been given power to impose a sentence of imprisonment or fine or both for a term less than the minimum term and the amount lesser than the minimum amount, if it is satisfied that the circumstances of the case so require.
7. The preamble of the Act provides, that the Act has been enacted for better protection of the interest of the consumers. No particular procedure has been prescribed for the Redressal Agencies to decide the complaints Page 37 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined filed by the consumers. No guidelines have been provided in the Act, as to when a decree holder shall proceed under Section 25 and when under Section 27. Section 25 enables a decree holder to get his decree executed through a civil process. It is well known that the judgment debtor create legal hurdles in the way of the decree holder at the time of execution and thus deprive him from the fruit of the decree for a long time.
In many cases, the judgment debtors are in a position to pay the decretal amount, but still they delay the executions by filing frivolous objections. It is axiomatic that in India the real trouble of a litigant starts after he obtains a decree. The Legislature while enacting Consumer Protection Act was mindful of the delays that are caused by the judgment debtors at the time of execution. So it in its wisdom enacted Section 27, so that a decree holder if he so wishes, can prosecute the judgment debtor, in case he fails to pay the decretal amount. If the matter is viewed from this angle, it is evident that Sections 25 and 27 are in the nature of execution proceedings and constitute independent remedies. The decree holder can avail any of them at his will. It does not mean, that he cannot avail of the other remedy, if by availing of one remedy, he failed to recover the amount.
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8. In the aforesaid view we are fortified by the observations of the State Commission, Haryana in Kohinoor Carpets v. Rajinder Arora, II (1991) CPJ 429. The following observations of the learned Commission may be read with advantage:
"The scheme for enforcement of the orders of the three Redressal Agencies under the Act has then to be viewed in a larger perspective. This necessarily involves the corelating of Sections 25 and 27 of the Act. Both these provisions are directed towards the speedy enforcement of the orders of the District Forum, the State Commission or the National Commission as the case may be. To put it tersely, both Sections 25 and 27 are in the nature of the execution proceedings of the orders made by the three Redressal Agencies. While Section 25 visualises the enforcement of such orders by a civil process, as if they were a decree or order made by a Court of law, Section 27 confers a quasicriminal sanction for their enforcement by way of punishment with imprisonment or imposition of monetary penalties."
9. We are, therefore, of the view, that an application under Section 27 is maintainable by the decree holder against a judgment debtor, inspite of the fact that a Page 39 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined remedy by way of execution is available to him under Section 25 of the Act."
Based on the judgments cited at the bar by the present petitioner, the settled position of law seems to be against the contention raised by the petitioner that proceedings under Section 27 cannot be maintained in the context of proceedings under Section 25 of the Consumer Protection Act. It is important to note that there is no specific order passed by the Consumer Forum in the Tamil Application, explicitly mentioning the provisions of Sections 25 and 27. However, considering the nature of the order, it is accepted that the case of the petitioner pertains to the fact that the proceedings were initially filed under Section 25, and the impugned order was passed under Section 27.
7.9 Now, considering further the case of the petitioner herein some other judgments of the Hon'ble Apex Court in the cases of (i) Meenakshi Saxena and Another versus ECGC Ltd. (Formerly knows as Export Credit Guarantee Corporation of India Ltd.) and Another reported in (2018) 7 SCC 479, specifically paragraphs 15 to 17 are relevant, as under:
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NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined "15. Before we dwell on to the merits of this case, we would like to note certain aspects of execution of a decree. Section 25 and 27 of the Consumer Protection Act, 1986, provides for execution of awards. It would be relevant to note that the 'execution' means:-
The word 'execution' in its widest sense signifies the enforcement of or giving effect to the judgments or orders of the court of justice. In a narrower sense, it means the enforcement of those judgments or orders by a public officer under the writs of fieri facias, possession, delivery, sequestration, fieri facias de bonis ecclesiaticis, etc.
16. The amended Section 25 of the Consumer protection Act, which is effective from 15.3.2003 may be relevant to be noted "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 Page 41 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined to be attached.
(2) No attachment made under subsection (1) shall remain in force for more than three months at the end of which, if the noncompliance continues, the property attached maybe 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."
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NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined (emphasis supplied)
17. The whole purpose of Execution proceedings is to enforce the verdict of the court. Executing court while executing the decree is only concerned with the execution part of it but nothing else. The court has to take the judgment in its face value. It is settled law that executing court cannot go beyond the decree. But the difficulty arises when there is ambiguity in the decree with regard to the material aspects. Then it becomes the bounden duty of the court to interpret the decree in the process of giving a true effect to the decree. At that juncture the executing court has to be very cautious in supplementing its interpretation and conscious of the fact that it cannot draw a new decree. The executing court shall strike a fine balance between the two while exercising this jurisdiction in the process of giving effect to the decree."
For that purpose, the Hon'ble Apex Court has taken note of this provision in proper context.
(ii) State of Karnataka versus Parmjit Singh and Others reported in (2006) 4 SCC 49, paragraphs 3 to 5 Page 43 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined are relevant, as under:
3. Section 27, prior to its amendment in 2003 read as follows:
"27.Penalties: Where a trader or a person against whom a complaint is made or the complainant fails to 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 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 extend to ten thousand rupees or with both: Provided that the District Forum, the State Commission or the National Commission, as the case may be if it is satisfied that the circumstances of any case so require, impose a sentence of imprisonment or fine, or both, for a term lesser than the minimum term and the amount lesser than the minimum amount, specified in this section''.
4. After amendment, Section 27 reads as follows:
1. Penalties: (1) Where a trader or a person against whom a complaint is made (or the complainant) fails Page 44 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined 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 of 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 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."
5. It is to be noted that by the Consumer Page 45 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined Protection (Amendment Act), 2002 (62 of 2002), as contained in Section 23 of the Amending Act, the proviso which was struck down as un-constitutional by the High Court has been omitted. Sub-Section (2) has been introduced which provides that 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 First Class for the trial of offences under the 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 of the Code. The amendments have been made effective with effect from 15.03.2003. The controversy has, therefore, become academic. The appeals are, accordingly, disposed of but without any order as to costs."
(iii) Kamlesh Aggarwal versus Narain Singh Dabbar and Another reported in (2015) 11 SCC 661, this is very important for considering the legal position of the provisions of Sections 25 and 27 of the Consumer Protection Act, specifically, paragraphs 4, 14 to 20 are relevant, as under:
"4. Since, there was non compliance of the order Page 46 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined dated 17.10.2003, the appellant filed Execution Petition before the District Forum to execute the order and requested it to punish the respondents under Sections 25 and 27 of the Act. In the said case one Gulab Singh (the alleged subsequent allottee of the plot in question) filed an application in the above proceedings for impleadment before the District Forum as he was in the possession of the plot in question, which was allotted by the respondents and a Civil Suit No. 1510 of 2005 filed by him was pending in the Civil Court. The District Forum vide its order dated 13.9.2006 held that the order dated 17.10.2003 is null and void. It was further held by the District Forum that the appellant should approach the Civil Court and only after the rejection of the suit of Gulab Singh in the Civil Court the execution proceedings will be heard by the District Forum and pass appropriate order and rejected the application of impleadment of Gulab Singh.
14. The National Commission has rightly declined to exercise the power under Section 21 of the Act to set aside the order dated 30.7.2013 of the State Commission as no second appeal is provided against the order of the State Commission in view of sub- Section 2 of Section 27A of the Act, which states as under :-
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NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined "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......"
From the reading of the above provisions of the Act, it is clear that against the order passed by the District Forum under Section 27A of the Act, appeal lies to the State Commission and against the order of the State Commission, the appeal lies to the National Commission and against order of the National Commission, the appeal lies to the Supreme Court and sub- section 2 of the Act states that 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 as the case may be. Page 48 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023
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15. Therefore, we have to hold that the order passed by the National Commission in holding that appeals filed by the appellant is not maintainable, is legal and valid and does not call for interference by this Court. The petition filed under Article 136 of the Constitution of India seeking leave to file appeal against the order of the National Commission is also not maintainable in law, however we have to interfere with the order of the State Commission only to the extent in not remanding the case to the District Forum for passing an order in accordance with law, in not doing so, the right accrued in favour of the appellant will be lost and therefore, we have to pass appropriate order in this regard .
16. Having regard to the fact situation that the appellant, who is a consumer, has been litigating the matter before the District Forum, State Commission and the National Commission for the last 17 years to get her legitimate right of getting the sale deed registered in respect of the allotted site made by the Navchetna Sahkari Awas Samiti Ltd. in her favour who is its member since 1962, therefore, we deem it proper to exercise our power under Article 142 of the Constitution of India for the reason that the State Commission has erred in not remanding the case to the District Forum, after it has found fault with the Page 49 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined order of the District Forum in convicting and sentencing the officers of Navchetna Sahkari Awas Samiti Ltd. who are the respondents herein for not following the procedure as provided under the Criminal Procedure Code and for that reason we deem it just and proper to remand the case to the District Forum with a direction to the District Forum to follow the procedure under Section 262 read with Chapter XX, Section 251 of the Code of Criminal Procedure to initiate penal action against the respondents under Section 27 of the Act for non compliance of the statutory provisions.
17. It is also needless to mention in this order that no remedy is available to the appellant against the order of the District Forum even under Section 24 of the Act for the reason that the order passed by the State Commission, which was not interfered with by the National Commission holding that second appeal is not maintainable against the order of the State Commission. Further, the order passed by the State Commission is under Section 27A of the Act in the appeal against the order dated 30.7.2013 of the District Forum which under Section 27(2) of the Act convicted and sentenced the respondents in the execution proceedings for non implementation of the order dated 17.10.2003 passed by the District Forum on the Page 50 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined original complaint. Therefore, this Court in exercise of power of this Court under Article 142 of the Constitution of India, the order of the State Commission is modified to the extent of remanding the case to the District Forum to execute the decree and take penal action against the respondents by following the procedure under Section 262 read with Chapter XX and Section 251 of the Code of Criminal Procedure in accordance with law.
18. Further, it is needless to observe in this order that apart from initiating proceedings under Section 27 of the Act, the alternative right is also available to the appellant to execute the order of the District Forum by invoking the provisions of Code of Civil Procedure, 1908 under Order XXI read with the Rule 32 for seeking direction to the respondents to get sale deed in respect of the Plot No. 114, Village Khoda, Ghaziabad executed by the Navchetna Sahkari Awas Samiti Ltd. and register the same before the Sub- Registrar and put her in possession of the same in accordance with the aforesaid provisions. The execution of the decree in the aforesaid terms is permissible in law in view of the provisions of Section 13(4), (6) and (7) of the Act, as the provisions of Order XXI read with the Rule 32 of Code of Civil Procedure are applicable to the District Forum to follow the procedure for execution of Page 51 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined the order passed by it.
19. In view of the aforesaid provisions of the Act, the provisions of Order XXI read with the Rule 32 of Code of Civil Procedure, are applicable in the execution proceedings before the District Forum for executing the orders passed on the complaint of the appellant to get the fruits of the same in the absence of either express or implied exclusion of Code of Civil Procedure to execute the order of the District Forum. The said provisions of Code of Civil Procedure are applicable to the procedure for disposal of the complaints by the District Forum not only in relation to the matters enumerated under Section 13(4),(6) and (7) of the Act but the other provisions of Code of Civil Procedure viz. Order XXI read with the Rule 32 are applicable for execution of the order of the District Forum and to give effect to the order passed by it on the complaint as the same will be in the nature of decree as defined under Code of Civil Procedure as the procedure contemplated under the said order read with Rule 32 which is a substantial procedural right of the appellant and the same can be invoked by her as the decree holder.
2. In addition to above, the alternative remedy is also available to the appellant to take penal action Page 52 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined against the concerned officers of the Navchetna Sahkari Awas Samiti Ltd. under Section 27 of the Act and therefore, she is at liberty to avail the said remedy also if she wants to get the decree dated 17.10.2003 executed by the District Forum as the same has attained finality in her favour.
With the aforesaid observation and direction to the District Forum and liberty to the appellant, we allow these appeals to the above said extent. No costs." 7.10 Based on the aforementioned factual and legal position, it is evident that the complainants in the respective cases have been fighting for justice since the year 2016 and obtained favorable orders from the Consumer Forum in 2016 itself. However, the present petitioner has managed to deprive them of the fruits of those orders by prolonging the litigation through various means. This conduct and practice adopted by the petitioner are highly disapproved. The petitioner has deliberately not proceeded with the proceedings initiated by the Consumer Commission following the impugned order. Instead, the petitioner has filed the present petition, seeking shelter in some general observations made in the order while ignoring various provisions of Page 53 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023 NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined the Consumer Protection Act as well as the settled legal positions. The conduct of the petitioner deserves strong criticism, and this Court must take serious note of it. The petitioner has consumed a significant amount of this Court's time, as the present petitions have been pending since 2016. This delay in the proceedings has further added to the aggrieved complainants' hardships, who have been awaiting justice for an extended period. In light of these circumstances, it is essential for the Court to condemn the petitioner's conduct and take necessary actions to ensure that justice is promptly served to the aggrieved consumers. The petitioner's attempt to prolong the litigation and evade the consequences of the Consumer Forum's orders should not be allowed, and the interests of the complainants must be protected by expeditious and fair resolution of the matter. 7.11 Based on the circumstances and considering the conduct of the petitioner, the Court deems it appropriate to award costs in each petition. Consequently, the present petitions are dismissed due to their lack of merit, as they fail to establish a valid cause under Section 226 and 227 of the Constitution of India. Page 54 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023
NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined 7.12 The petitioner's conduct is highly questionable as they have taken wrongful advantage of the legal process by repeatedly filing litigations, causing unnecessary delay and consuming precious time of the Court in deciding such matters. By doing so, the petitioner has been able to prolong the payment of the amount ordered by the Consumer Court to the respective complainants, who are already in a helpless situation. 7.13 Given the meritless nature of the petitions and the petitioner's conduct, the Court dismisses all the petitions with an order to pay a cost of Rs. 5,000/- in each of petition. This amount must be paid within four weeks from today before the Registry of the Court, and a copy of the receipt of payment should be submitted to the concerned Consumer Forum. Thereafter, the said amount shall be paid to the respective complainant/(s) in the respective petitions.
7.14 If the petitioner fails to deposit the cost within the specified four-week period, the Registry will present the matter before the Court for further action on non- Page 55 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023
NEUTRAL CITATION R/SCR.A/1944/2020 JUDGMENT DATED: 20/07/2023 undefined compliance.
8. In view of the aforesaid, the present petitions are dismissed with the aforesaid cost of Rs.5,000/- in each petitions with the aforesaid condition(s), which shall be paid by the petitioner(s) in respective petitions.
9. Upon dismissing this petition, it is expected that the District Consumer Forum, Kutch at Bhuj shall proceed with the pending proceedings before it and take all necessary actions to conclude those pending cases as expeditiously as possible, preferably within six months from the date of receipt of the copy of this order.
Notice stands discharged.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 56 of 56 Downloaded on : Sat Sep 16 22:23:57 IST 2023