State Consumer Disputes Redressal Commission
Hussan Lal vs Darshan Singh on 13 March, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1087 of 2009
Date of institution : 3.8.2009
Date of decision : 13.3.2012
1. Hussan Lal, IAS son of Shri Nasib Chand, Secretary, The Punjab State
Electricity Board, The Mall, Patiala.
2. The Punjab State Electricity Board, The Mall, Patiala through its Secretary.
.......Appellants
Versus
Darshan Singh son of Shri Mithu Singh, resident of Village Bir Talab, District
Bathinda.
......Respondent
First Appeal against the order dated
14.7.2009/16.7.2009 of the District Consumer
Disputes Redressal Forum, Bathinda.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mr. B.S. Sekhon, Member.
Present :-
For the appellants : Shri N.S. Vashisht , Advocate.
For the respondent : Ex parte.
JUSTICE S.N. AGGARWAL, PRESIDENT:
This order will dispose of two appeals, namely, First Appeal No.1087 of 2009 (Hussan Lal and another v. Darshan Singh) and First Appeal No.1094 of 2009 (Surinder Pal Singh Gill v. Darshan Singh) as both these appeals are directed against the same impugned orders dated 14.7.2009 and 16.7.2009 passed by the District Consumer Disputes Redressal Forum, Bathinda (in short "District Forum") in the proceedings under Section 27 of the Consumer Protection Act, 1986 (in short "the Act"). The questions of law and facts involved in both the appeals are also First Appeal No.1087 of 2009. 2 identical. Facts are taken from First Appeal No.1087 of 2009 and the parties would be referred by their status in this appeal.
VERSION OF THE RESPONDENT:
2. Darshan Singh respondent had filed complaint (CC No.326 of 1.12.2008) against the Punjab State Electricity Board, The Mall, Patiala through its Secretary and (ii) SDO/AEE, Punjab State Electricity Board, Sub Urban Sub Division, Bathinda in District Forum, Bathinda challenging the demand of Rs.57,107/- shown as sundry charges in the bill dated 26.8.2008 for the total amount of Rs.58,390/-
with an application for restoration of electric connection. Notice was issued to the appellants. The appellants appeared through counsel. The District Forum had passed the interim order dated 30.12.2008 by which the respondent was directed to deposit Rs.29,000/- out of the demanded amount of Rs.58,390/- within 7 days from that date and the appellants were directed to restore the electric connection within 3 days thereafter and the case was adjourned to 8.1.2009 for filing of written reply by the appellants.
3. Thereafter Darshan Singh respondent filed Execution Application (EA No.1 of 2009) under Section 27 of the Act in the District Forum, Bathinda on 12.1.2009 for proceeding against appellant No.2 and one Narinder Pal Singh Gill, SDO/AEE (actual name is Surinder Pal Singh Gill, appellant in First Appeal No.1094 of 2009). It was pleaded in this Execution Application that the respondent had prepared the bank draft dated 2.1.2009 for Rs.29,000/- drawn on Punjab National Bank payable to appellant No.2 at Bathinda office. He had went to the office of SDO/AEE, Bathinda (appellant in FA No.1094 of 2009) for making the payment in compliance with the order dated 30.12.2008 on the same day i.e. on 2.1.2009. Thereafter he had been going to the office of SDO/AEE, Bathinda from 5.1.2009 to 7.1.2009 continuously but the bank draft was not accepted nor the electric connection was restored. Rather he was told by the SDO/AEE openly that they would not release the electric connection as the courts were passing the orders without any basis. First Appeal No.1087 of 2009. 3 Hence it was pleaded that since the appellants have failed to comply with the above directions of the District Forum. Therefore, they have become liable for punishment with imprisonment for a term which could extend upto 3 years and to the fine amount which would extend upto Rs.10,000/- under Section 27 of the Act. The prayer was as under:-
" It is therefore, respectfully prayed that application be accepted and the respondents be directed to comply with all the terms and conditions of order dated 30.12.2008 since opposite party failed to comply with the same within 7 days provided by this Hon'ble Forum so they be sent to jail and fine be imposed as mentioned above and provided under the Consumer Protection Act."
VERSION OF THE APPELLANTS:
4. The appellants filed the written reply dated 5.3.2009 to this application in which it was pleaded that the electricity bill for an amount of Rs.58,390/- dated 28.6.2008 was issued in the name of the respondent. The said bill was challenged by the respondent by filing complaint (CC No.326 dated 1.12.2008). It was pending consideration before the District Forum. It was admitted that the District Forum had passed the order on 30.12.2008 under which the respondent was to deposit an amount of Rs.29,000/- within 7 days against the demanded amount of Rs.58,390/- and thereafter the appellants were to restore the electric connection. But it was denied if the respondent had come to the office of the SDO/AEE, Bathinda for depositing the bank draft either on 2.1.2009 or from 5.1.2009 to 7.1.2009 continuously or if the SDO/AEE, Bathinda had refused to accept the said bank draft.
5. It was further pleaded that the respondent himself had failed to comply with the court order dated 30.12.2008 intentionally and with mala fide intention for the First Appeal No.1087 of 2009. 4 purpose of creating evidence in support of the application filed under Section 27 of the Act.
6. It was further pleaded that the respondent had never met the Secretary, Punjab State Electricity Board, Patiala i.e. the appellants nor he had written any letter to him at Patiala address. Moreover the respondent alleges that he had gone to Narinder Pal Singh Gill, SDO/AEE while there is no such person in the name of Narinder Pal Singh Gill posted as SDO/AEE nor the respondent had met the SDO/AEE for depositing the bank draft. The appellants were always ready and willing to perform their part of the order dated 30.12.2008. It was also pleaded that the electric connection had been restored even when the respondent had failed to deposit the amount as per the order dated 30.12.2008.
7. It was further pleaded that the respondent could also send the bank draft through post if the version of the respondent was believed that the appellants had refused to accept the bank draft.
8. It was further pleaded that the respondent has failed to deposit the amount of Rs.29,000/- which was a pre-condition for the reconnection of the electric connection. Dismissal of the Execution Application with heavy costs was prayed. PROCEEDINGS BEFORE THE DISTRICT FORUM:
9. The respondent filed the affidavit of Lal Singh as Ex.C-1, affidavit of Karamjit Singh as Ex.C-2 and his own affidavit as Ex.C-5. The respondent also produced documents Ex.C-3and Ex.C-4.
10. On the other hand, Surinder Pal Singh Gill, SDO/AEE, Sub Division, Bathinda filed his affidavit as Ex.R-1.
11. Learned District Forum vide impugned order dated 14.7.2009 held the appellants guilty for their failure or omitting to comply with the order dated 30.12.2008 passed by the District Forum. The file was adjourned for personal hearing on the quantum of sentence to 16.7.2009. On that date appellant no.1 and Surinder Pal Singh Gill (appellant in FA No.1094 of 2009) had come present and First Appeal No.1087 of 2009. 5 the District Forum vide order dated 16.7.2009 imposed a fine amount of Rs.3,000/- on each of these appellants failing which they were ordered to undergo a simple imprisonment for a period of three months.
12. Hence this appeal (FA No.1087 of 2009) has been filed by Shri Hussan Lal, IAS, Secretary, Punjab State Electricity Board and by Punjab State Electricity Board, Patiala through its Secretary.
13. Surinder Pal Singh Gill, SDO/AEE, Punjab State Electricity Board, Sub Urban Sub Division, Bathinda has also filed appeal (FA No.1194 of 2009). DISCUSSION:
14. The submission of the learned counsel for the appellants was that under the order dated 30.12.2008 the respondent was to deposit an amount of Rs.29,000/- with the SDO/AEE, Punjab State Electricity Board, Sub Urban Sub Division, Bathinda within 7 days and the electric connection was to be restored within 3 days thereafter. In the present case, the respondent had failed to deposit the amount of Rs.29,000/-. Therefore even as per the order dated 30.12.2008 the appellants were under no obligation to restore the electric connection. But respecting and honouring the order of the District Forum, the electric connection of the respondent was restored on 4.3.2009. Therefore the order of conviction passed by the District Forum was totally illegal. Hence it was prayed that both the appeals be accepted and the impugned orders dated 14.7.2009 and 16.7.2009 be set aside.
15. The respondent has failed to appear and was proceeded against ex parte.
16. Record has been perused. Submissions have been considered.
17. The order dated 30.12.2008 Ex.C-3 reads as under:-
"30.12.2008: Present Counsel for the parties.
Heard on the application moved by the complainant for restoration of his SP electricity connection bearing A/c No.B- 14BP310016N. Learned counsel for the opposite parties submitted at bar before this Forum that opposite parties have no objection if the First Appeal No.1087 of 2009. 6 complainant deposits 50% amount out of the disputed amount. Accordingly, application is allowed and the complainant is directed to deposit Rs.29,000/- out of the bill amount of Rs.58,390/- within seven days from today. After deposit of said amount, opposite parties would restore the electricity connection of the complainant within three days.
Now to come up on 8.1.2009 for filing the reply of main complaint.
Sd/- Member Sd/- Member Sd/- President, DCF"
18. As per this order, Darshan Singh respondent was to deposit the amount of Rs.29,000/- with the SDO/AEE, PSEB, Sub Urban Sub Division, Bathinda within seven days from the date of passing of the order on 30.12.2008 and thereafter the SDO/AEE, PSEB, Sub Urban Sub Division, Bathinda was to restore the electric connection within three days. The next date fixed in the case was 8.1.2009.
19. The version of the respondent as pleaded in the execution application was that he had got prepared the bank draft for Rs.29,000/- on 2.1.2009 copy of which has been produced as Ex.C-4 and that he had gone to the office of SDO/AEE, PSEB, Sub Urban Sub Division, Bathinda on the same day to deposit that bank draft. It was not accepted by SDO/AEE, PSEB, Sub Urban Sub Division, Bathinda. Then he had gone to the office of SDO/AEE, PSEB, Sub Urban Sub Division, Bathinda from 5.1.2009 to 7.1.2009 continuously to deposit the bank draft for Rs.29,000/- but it was not accepted by SDO/AEE, PSEB, Sub Urban Sub Division, Bathinda. Thereafter Darshan Singh respondent filed the execution application on 12.1.2009.
20. This version of the respondent has been denied by the appellants by filing written reply. It was denied if the respondent had ever come to the office of SDO/AEE, PSEB, Sub Urban Sub Division, Bathinda to deposit the amount of First Appeal No.1087 of 2009. 7 Rs.29,000/- by way of bank draft. He had also not gone to the Secretary, Punjab State Electricity Board, Patiala for this purpose.
21. It was also pleaded by the appellants in the written reply that even if the version of the respondent was believed that the SDO/AEE, PSEB, Sub Urban Sub Division, Bathinda had refused to accept the bank draft on 2.1.2009 or from 5.1.2009 to 7.1.2009 continuously then the respondent could have sent the bank draft to the SDO/AEE, PSEB, Sub Urban Sub Division, Bathinda by post.
22. Admittedly the respondent had not sent any bank draft to the SDO/AEE, PSEB, Sub Urban Sub Division, Bathinda by post.
23. Even if we go a step further and believe the version of the respondent that he had gone to the office of SDO/AEE, PSEB, Sub Urban Sub Division, Bathinda on 2.1.2009 and from 5.1.2009 to 7.1.2009 continuously and the SDO/AEE, PSEB, Sub Urban Sub Division, Bathinda had refused to accept the bank draft, the next date in the District Forum in the main complaint in which the interim order was passed by the District Forum was 8.1.2009. The respondent could have produced the bank draft in the District Forum on 8.1.2009 or could have handed over the bank draft of Rs.29,000/- to the counsel for the appellants in the District Forum or he would have filed an application to that effect in the District Forum on 8.1.2009 along with the bank draft.
24. The original complaint of Darshan Singh (CC No.326 of 1.12.2008) was decided by the District Forum vide order dated 3.9.2009 and the appeal against that order (FA No.1643 of 2009) is pending in this Commission with which the file of the District Forum in CC No.326 of 1.12.2008 is also attached. The order dated 8.1.2009 passed by the District Forum in CC No.326 of 1.12.2008 reads as under:-
"8.1.2009 Present: Shri Ashok Gupta, counsel for the complainant.
Miss Veerpal Kaur, Advocate, proxy counsel for the opposite parties.
Reply of the complaint not filed. Learned counsel for the opposite parties is stated to be out of station. At the request of the First Appeal No.1087 of 2009. 8 proxy counsel adjourned to 21.1.2009 for filing the reply subject to deposit of cost in the sum of Rs.100/- in the Legal Aid Fund of this Forum.
Sd/- Member Sd/- Member Sd/- President, DCF"
25. This order does not reveal if Darshan Singh respondent either in person or through his counsel had ever tendered draft of Rs.29,000/- in the District Forum for being paid to the SDO/AEE, PSEB, Sub Urban Sub Division, Bathinda or filed any such application along with the bank draft in the District Forum on 8.1.2009 or complaining about the conduct of the SDO/AEE, PSEB, Sub Urban Sub Division, Bathinda in refusing to accept the demand draft of Rs.29,000/-. 8.1.2009 was the first possible opportunity after the alleged refusal lastly, on 7.1.2009 for Darshan Singh respondent to place his version before the District Forum about the conduct of SDO/AEE, Punjab State Electricity Board, Sub Urban Sub Division, Bathinda in refusing to accept the bank draft and to deposit the bank draft in the District Forum. If he had done so, the SDO/AEE, PSEB, Sub Urban Sub Division, Bathinda or his counsel could not have refused from accepting the same.
26. Nothing of this sort was done by the respondent which could have shown that he was willing to do his part of the duty under the interim order dated 30.12.2005 and his version was bona fide. Therefore this version of Darshan Singh respondent that he had gone to the office of the SDO/AEE, PSEB, Sub Urban Sub Division, Bathinda on 2.1.2009 or from 5.1.2009 to 7.1.2009 continuously is proved to be totally false.
27. Merely by getting prepared the bank draft for Rs.29,000/- was not enough nor it was a compliance of the order dated 30.12.2008 on the part of the respondent.
28. If the version of the respondent had been truthful that the bank draft was not accepted by the SDO/AEE, Punjab State Electricity Board, Sub Urban Sub Division, Bathinda on 2.1.2009 or on 5.1.2009 to 7.1.2009 he should have tendered the draft in the District Forum on 8.1.2009 itself.First Appeal No.1087 of 2009. 9
29. Moreover the present execution application was filed by the respondent in the District Forum, Bathinda on 12.1.2009. If the respondent had the bona fide intention of depositing the bank draft of Rs.29,000/- in favour of the appellants, he would have enclosed that bank draft along with the execution application. Merely alleging that he had been going to the office of SDO/AEE, Punjab State Electricity Board, Sub Urban Sub Division, Bathinda on 2.1.2009 and from 5.1.2009 to 7.1.2009 continuously would have been believable had he enclosed the bank draft of Rs.29,000/- along with the execution application for onward payment to the appellants. Moreover there was no difficulty for the respondent to enclose the bank draft along with the execution application if he had the real intention to deposit this amount with SDO/AEE, Punjab State Electricity Board, Sub Urban Sub Division, Bathinda.
30. It clearly means, therefore, that the respondent had a mischief in his mind and his story that he had gone to the office of the SDO/AEE, Punjab State Electricity Board, Sub Urban Sub Division, Bathinda on 2.1.2009 and had been visiting from 5.1.2009 to 7.1.2009 continuously is a fictitious and baseless story.
31. Moreover in the prayer clause as reproduced in para 3 above, the respondent has taken a false plea that the appellants were to comply within 7 days as provided by the District Forum. This plea has been taken by the respondent to mislead the District Forum. In fact the order dated 30.12.2008 was that the respondent was to deposit the amount within 7 days and the appellants were to restore the electric connection within 3 days thereafter. Therefore the respondent was not faithful to the order dated 30.12.2008 while making the prayer.
32. It also deserves notice that the observation made by the District Forum towards the end of para 11 to the effect that "once the amount is paid to the bank and it is controverted in the form of a bank draft it becomes the property of the person in whose favour the bank draft is prepared", is totally illegal. Till the bank draft is entrusted to the person in whose favour the bank draft is prepared, the maker First Appeal No.1087 of 2009. 10 of the bank draft remains the owner. He may prepare a bank draft and may not give to the person in whose favour the bank draft has been prepared. The person in whose favour the bank draft is prepared is not in a position to get the money of the bank draft till he gets the bank draft.
33. It is admitted by the respondent himself that the bank draft remained with him as it was not allegedly accepted by the SDO/AEE, PSEB, Bathinda. Therefore to hold that even if the bank draft remained in the custody of the respondent, it would amount to have been paid to the appellants is totally illegal and misreading of law.
34. Moreover in para 5 of the execution application Darshan Singh respondent has alleged that he had gone to the office of the SDO/AEE, PSEB, Sub Urban Sub Division, Bathinda for tendering the bank draft of Rs.29,000/- on 2.1.2009 and from 5.1.2009 to 7.1.2009 continuously but it was not accepted by him. It is nowhere pleaded in para 5 of the execution application by Darshan Singh respondent if he was accompanied by Lal Singh or by Karamjit Singh. Even in his own affidavit Ex.C-5 Darshan Singh respondent nowhere stated if he was accompanied by Lal Singh and Karamjit Singh while going to the SDO/AEE, PSEB, Sub Urban Sub Division, Bathinda for tendering the bank draft of Rs.29,000/- or if the SDO/AEE, Punjab State Electricity Board, Sub Urban Sub Division, Bathinda had refused to accept the bank draft in their presence.
35. However, Darshan Singh respondent has filed the affidavit of Lal Singh as Ex.C-1 and the affidavit of Karamjit Singh as Ex.C-2 who have deposed that they had accompanied Darshan Singh respondent to the office of the SDO/AEE, PSEB, Sub Urban Sub Division, Bathinda on 2.1.2009 or from 5.1.2009 to 7.1.2009 continuously. If these persons had actually accompanied Darshan Singh, the respondent would not have forgotten to mention their names either in the execution application or in his affidavit. Therefore the affidavits of Lal Singh Ex.C-1 and First Appeal No.1087 of 2009. 11 affidavit of Karamjit Singh Ex.C-2 are beyond the pleadings and appear to have been procured by Darshan Singh respondent to strengthen his false case.
36. In the execution application the respondent has pleaded that he had gone to the office of the appellants on 2.1.2009 and from 5.1.2009 to 7.1.2009 continuously. The appellant Punjab State Electricity Board has its office in Patiala and the appellant No.1 being the Secretary of Punjab State Electricity Board had also his office at Patiala. Although the respondent has alleged in the execution application that he had gone to the office of the appellants, he only means that he had gone to the office of the SDO/AEE, PSEB, Sub Urban Sub Division, Bathinda and not to the office of Punjab State Electricity Board, The Mall, Patiala or to the office of the Secretary, Punjab State Electricity Board, The Mall, Patiala.
37. It was submitted by the learned counsel for the appellants that so far as appellant No.1 Secretary of the Punjab State Electricity Board, Patiala is concerned, there was no specific allegation by the respondent in the execution application if he had gone to Patiala or if he had tendered the bank draft to the Secretary of Punjab State Electricity Board, Patiala or if the Secretary of Punjab State Electricity Board, Patiala had refused to accept the bank draft. Therefore the order of holding him guilty is totally illegal.
38. We find merit in this submission. There is no such allegation in the execution application nor the Secretary, Punjab State Electricity Board, Patiala himself was to restore the electric connection. It was to be done by the SDO/AEE, PSEB, Bathinda under court orders and the SDO/AEE, PSEB, Bathinda did not require any such orders from appellant No.1. Therefore the order dated 14.7.2009 holding appellant No.1 guilty for disobeying the court order and imposing fine amount on him vide order dated 16.7.2009 are totally illegal.
39. Moreover the appellants filed the written reply on 5th of March, 2009 and it was specifically pleaded by the appellants towards the end of para 5 of the written reply that the electric connection has been restored in compliance with the order First Appeal No.1087 of 2009. 12 dated 30.12.2008. Even in the interim order dated 17.3.2009 passed in this execution application, it has been specifically recorded by the District Forum that the respondent has admitted that the electric connection has been restored by the appellants and the amount of Rs.29,000/- would be deposited by him on the next day i.e. on 18.3.2009 and the file was adjourned to 30.3.2009. The amount of Rs.29,000/- was deposited by the respondent with the appellants on 18.3.2009 i.e. after the electric connection was restored on 4.3.2009.
40. However the District Forum totally failed to notice in the impugned orders dated 14.7.2009 and 16.7.2009 that the electric connection was already restored on 4.3.2009 by the appellants and the amount was actually deposited by the respondent on 18.3.2009. The District Forum had read the written statement filed by the appellants in the execution application as mentioned in para 4 of the impugned order dated 14.7.2009 but it totally ignored to notice that in the end of para 5 of the written reply it was specifically mentioned that the electric connection was already restored on 4.3.2009. The District Forum also totally failed to notice the interim order dated 17.3.2009 while passing the impugned order dated 14.7.2009 that even as per the version of the respondent the electric connection was already restored and that the respondent had undertaken to deposit the amount of Rs.29,000/- with the SDO/AEE, PSEB, Sub Urban Sub Division, Bathinda on the next day.
41. It, therefore, clearly means that the appellants were to restore the electric connection even as per the order dated 30.12.2008 after the amount was deposited by the respondent with the appellants but to show utmost respect to the orders of the District Forum, the appellants had restored the electric connection on 4.3.2009 even before the amount was deposited by the respondent on 18.3.2009. In any case the order dated 30.12.2008 was complied with by 4.3.2009 even when the respondent was still a defaulter in its compliance. The delay in restoration of the election connection of the respondent on 4.3.2009 was because of the fault on the part of First Appeal No.1087 of 2009. 13 Darshan Singh respondent himself as he had failed to deposit the amount of Rs.29,000/- in compliance with the order dated 30.12.2008.
42. The provisions of Section 25 and 27 of the Act are only meant to ensure compliance of the orders passed by the District Forums/State Commission and once the order of the District Forum dated 30.12.2008 was complied with by the appellants, the remedy available under Section 25 and 27 of the Act has become redundant and the execution application becomes infructuous.
43. In view of the discussion held above, it is clearly proved that none of the appellants in the two appeals had disobeyed the orders dated 30.12.2008 passed by the District Forum. Therefore the order passed by the learned District Forum on 14.7.2009 holding the appellants guilty for failure/omitting to comply with the order dated 30.12.2008 passed by the District Forum is totally illegal. Similarly the order dated 16.7.2009 imposing of the fine amount of Rs.3,000/- on each of the appellants is also illegal.
44. Accordingly this appeal is accepted and the impugned orders dated 14.7.2009 and 16.7.2009 passed by the District Forum are set aside. FIRST APPEAL NO.1094 OF 2009:
45. For the reasons recorded in FA No.1087 of 2009 above, this appeal is also accepted and the impugned orders dated 14.7.2009 and 16.7.2009 are set aside.
46. The arguments in these cases were heard on 6.3.2012 and the orders were reserved. Now, the orders be communicated to the parties.
47. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
March 13 , 2012 (BALDEV SINGH SEKHON)
Bansal MEMBER
First Appeal No.1087 of 2009. 14