State Consumer Disputes Redressal Commission
Manish Rao Solanki & Anr. vs Smt. Shyam Kumari & Anr. on 11 May, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2017/321
Instituted on : 18.04.2017
1. Manish Rao Solanke, S/o Shri Narayan Rao Solanki,
R/o : MIG - 20, New Housing Board,
C.G. Housing Board, Residential Colony,
Kailash Nagar, Kurud,
Bhilai, Police Station - Jamul, District Durg (C.G.)
2. Saabir Ali, S/o Shri Rasool Shah,
R/o : House No.1284, Street No.26, Shanti Nagar,
Supela, Bhilai, District Durg (C.G.) ... Appellants/Judgement Debtors
(In Jail)
Vs.
1. Smt. Shyam Kumari, W/o Shri Lalmani Verma,
Aged 52 years,
R/o : 5/9, Radhika Nagar,
Supela, Bhilai, District Durg (C.G.),
2. Astha Developers and Colonizers,
Rani Avanti Bai Chowk, Kohka,
Tahsil and District Durg (C.G.) ..... Respondents.
PRESENT: -
HON'BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
HON'BLE SMT. RUCHI GOEL, MEMBER
COUNSEL FOR THE PARTIES: -
Shri R.K. Bhawnani, Advocate for the appellants (O.P. No.2 & O.P.
No.4) Judgment Debtors.
Shri Anurag Thaker, Advocate for the respondent No.1 (complainant)-
Decree Holder.
None for the respondent No.2 (O.P. No.1)..
// 2 //
ORDER
Dated : 11 /MAY/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The appellants (O.P. No.2 & O.P. No.4) have filed this appeal under Section 27A of the Consumer Protection Act, 1986 against the order dated 03.03.2017, passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth called "District Forum") in Execution Case No.205/2017. By the impugned order, O.P. No.2 & O.P. No.4 have been sentenced imprisonment for 2 ½ years and sent to jail because they have not paid the awarded amount.
2. Initially, the respondent No.1 (complainant) filed Consumer Complaint Case No.C.C./2016/247 before the District Forum, Durg (C.G.) and vide order dated 29.10.2016, the District Forum has allowed the complaint of the complainant and directed that :-
(1) The O.P. No.1, O.P. No.2, O.P. No.3 and O.P. No.4 will jointly or severally pay a sum of Rs.2,79,000/- (Rupees Two Lakh Seventy Nine Thousand) to the complainant, within a period of one month from the date of the order. (2) The O.P. No.1, O.P.No.2,O.P. No.3 and O.P. No.4 will jointly or severally pay interest @ 09% p.a. on the above amount from the date of deposit of amount by the complainant to the O.P., till realization, to the complainant.
(3) The O.P. No.1, O.P. No.2, O.P. No.3 and O.P. No.4 will jointly or severally pay a sum of Rs.1,00,000/- (Rupees // 3 // One Lakh) towards compensation for mental agony, to the complainant.
(4) The O.P. No.1, O.P. No.2, O.P. No.3 and O.P. No.4 will jointly or severally pay a sum of Rs.10,000/- (Rupees Ten Thousand) towards cost of litigation, to the complainant.
3. The Complainant Smt. Shyam Kumari filed Execution Petition No.205/2017 against OPs before the District Forum. Initially the notices were issued to the appellants (O.P. No.2 and O.P. No.4) and other OPs, but none appeared for the OPs and they did not deposit the awarded amount, then by the impugned order dated 03.03.2017, learned District Forum has sentenced imprisonment for 2 ½ years and sent jail to the O.P. No.2 & O.P. No.4.
4. Shri R.K. Bhawnani, learned counsel appearing for the appellants (O.P. No.2 & O.P. No.4) has argued that in the original complaint, learned District Forum had held liable all the OPs and directed that O.P. No.1 to O.P. No.4 will jointly or severally provide possession of the house and will pay a sum of Rs.2,79,000/- to the complainant within a period of one month from the date of order, but the learned District Forum has sentenced imprisonment for 2 ½ years and sent jail to the O.P. No.2 & O.P. No.4 only. Shri Bhawnani has further argued that proper procedure under Section 27 of the Consumer Protection Act, 1986, was not followed by the District Forum before imposing the jail sentence to the appellants (O.P. No.2 // 4 // and O.P. No.4), which is mandatory and the District Forum, without following proper procedures laid down under Section 27 of the Consumer Protection Act, 1986 and Section 262 of Cr.PC imposed jail sentence for 2 ½ years on the appellants (O.P. No.2 & O.P. No.4), which is against the law as well as principles of natural justice. Therefore, the impugned order passed by the District Forum, is illegal and is liable to be set aside. The appeal may be allowed and the impugned order passed by the District Forum be set aside.
5. Shri Anurag Thaker, learned counsel appearing for the respondent No.1 (complainant) has argued that the OPs have not complied with the order of the District Forum, therefore, the impugned order passed by the District Forum is just and proper and does not suffer from any infirmity, irregularity and illegality, hence does not call for any interference by this Commission. The appeal filed by the appellants (O.P. No.2 & O.P. No.4) is liable to be dismissed
6. None appeared for the respondent No.2 (O.P. No.1) before us on 04.05.2018 when the case is fixed for final arguments.
7. We have heard learned counsel appearing for the parties and have also perused the record of the Execution Case No.205/2016 of the District Forum.
8. The appellants (O.P. No.1 & O.P. No.2) had filed bail application before this Commission and vide order dated 19.05.2017, // 5 // they were released on bail on furnishing security bond of Rs.2,00,000/- and undertaking.
9. The complainant had filed Execution Application No.205/2016 before the District Forum on 15.12.2016 and notices were sent to the OPs for appearance and payment of the amount and notices were served, but the awarded amount was not paid by the OPs.
10. The first objection raised by the appellants (O.P. No.2 & O.P. No.4) is that in the original complaint, learned District Forum had held liable all the OPs and directed that O.P. No.1 to O.P. No.4 will jointly or severally pay a sum of Rs.2,79,000/- to the complainant within a period of one month from the date of order, but the learned District Forum has sentenced imprisonment for 2 ½ years and sent jail to the O.P. No.2 - Manish Solanki & O.P. No.4 Saabir Ali, only. Therefore, the impugned order passed by the District Forum, is illegal. The above contention of the appellants (O.P. No.2 & O.P. No.4) is not acceptable.
11. In the original complaint, the complainant made party Astha Developers and Colonizer as O.P. No.1, Manish Solanki, Partner as O.P. No.2, Ejaz Niyazi, Partner as O.P. No.3 and Mohd. Saabir Ali, Partner as O.P. No.4. It appears that the appellants (O.P. No.2 Manish Solanki and O.P No.4 - Saabir Ali) are Active Partners of O.P. No.1. The District Forum has directed the OPs to pay the amount to the complainant jointly or severally. Being Active partners of Astha // 6 // Developer and Colonizers, the appellants (O.P. No.1 Manish Solanki and O.P. No.2 Mohd. Saabir Ali) are liable to pay the amount to the complainant and the complainant has a right to execute the award against any one of the judgment debtors.
12. So far as second objection raised by the appellants (O.P. No.2 & O.P. No.4) that learned District Forum without following the proper procedure under Section 27 of the Consumer Protection Act, 1986, before passing the jail sentence to the appellants (O.P. No.2 and O.P. No.4), is concerned, we have perused the record of the Execution Case No.205/2016 of the District Forum.
13. Vide impugned order dated 03.03.2017, the learned District Forum has observed thus :-= "2. The O.P. No.2 & O.P. No.4 are in jail and amount has not been paid, therefore, warrant be prepared for imprisonment for 2 ½ years and be sent jail. The S.P. Durg be sent a D.O. against the O.P. No.1 and O.P. No.3 with a note along with warrant that Ejaz Niyazi, who is working at Collectorate, therefore, action be taken for service of warrant in address of his house and office through a responsible Police Officer...."
14. In National Insurance Company Limited Vs. Maya Gandhi (Mrs.), I (2007) CPJ 189, Hon'ble National Commission has observed thus :-
"Consumer Protection Act, 1986 - Section 27 - Penalty - Exercise of power - Powers vested in Consumer Fora under Section 27 to be exercised cautiously and not to be misused or used in arbitrary // 7 // manner - Care and caution should be taken before using non-bailable warrants or summons - This power is vested for rendering justice and not for harassing."
15. In R.B. Sharma Vs. Sahu Automobiles, I (2015) CPJ 507 (NC), Hon'ble National Commission has observed thus :-
"14. On perusal of the record, we find that the State Commission proceeded to convict and sentence the appellant without serving him with a show cause or explaining to him the gist of accusation against him. Thus the order of the State Commission cannot be sustained because the State Commission has proceeded to prosecute, convict and sentence the appellant without following the principles of natural justice. Otherwise also, conviction was recorded in respect of interim order passed during the pendency of the complaint."
16. So far as provisions of Section 25 & 27 of the Consumer Protection Act, 1986 are concerned, the provisions of both the Sections are separate. The provision of Section 27 of the Consumer Protection Act, 1986 is penal in nature and before sentencing or proceeding / initiating under Section 27 of the Consumer Protection Act, 1986, it is mandatory for the District Forum to follow the procedure given in Section 262 Cr.PC under Chapter 21, but in the instant case, on perusal of the record, we find that the learned District Forum proceeded to convict and sentence the appellants (O.P. No.2 & O.P. No.4) without affording them any opportunity or explaining the gist of accusation // 8 // against them. Thus, the order of the District Forum cannot be sustained because the District Forum has proceeded to convict and sentence the appellants (O.P. No.2 & O.P. No.4) without following principles of natural justice and proper procedure laid down under Section 27 of the Consumer Protection Act, 1986. Therefore, the impugned order dated 03.03.2017, passed by the District Forum, is not sustainable in eye of law and is liable to be set aside.
17. Hence, the appeal filed by the appellants (Manish Solanki - O.P. No.2 & Saabir Ali - O.P. No.4), is allowed and the impugned order dated 03.03.2017, passed by the District Forum, against the appellants (Manish Solanki - O.P. No.2 & Saabir Ali - O.P. No.4), is set aside. If the appellants (Manish Solanki - O.P. No.2 & Saabir Ali - O.P. No.4), are not furnishing security bond, as per order passed by this Commission on 19.05.2017 and if the appellants (Manish Solanki - O.P. No.2 & Saabir Ali - O.P. No.4), are in jail, they be released forthwith in the instant case, if not required in any other case. If the appellants (Manish Solanki
- O.P. No.2 & Saabir Ali - O.P. No.4), are in bail, they are directed to appear before the District Forum, Durg (C.G.) on 31.05.2018. So far as, the order of the District Forum regarding issuance of non bailable warrant against Astha Developers and Colonizers and Ejaz Niyazi, is concerned, the same is confirmed. If the appellants (O.P. No.2 & O.P. No.4) did not comply with the order passed by the District Forum, then learned District Forum is directed that after following mandatory // 9 // provisions of Section 251 and 262 of Cr.PC to afford opportunity to them to explain gist of accusation against them and after providing such opportunity and hearing both the parties, the District Forum, will pass appropriate order, according to law.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta) (Smt. Ruchi Goel)
President Member Member Member
11 /05/2018 11 /05/2018 11/05/2018 11/05/2018