National Consumer Disputes Redressal
Bhagwan Mishra vs Madhuri Devi & 7 Ors. on 19 September, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI EXECUTION REVISION PETITION NO. 12 OF 2018 (Against the Order dated 16/03/2018 in Appeal No. 356/2015 of the State Commission Bihar) 1. BHAGWAN MISHRA S/O. LT. RC MISHRA, R/O. VILLAGE TESRAHIYA P.O. OFFICE BAGHWARIA, P.S. NAUTHAN, DISTRICT-WEST CHAMPARAN, BETTIAH, BIHAR ...........Petitioner(s) Versus 1. MADHURI DEVI & 7 ORS. W/O. LT. RAGHAW SHARAN PRASAD, R/O. VILLAGE BAIKUNTHWAR, P.O. KUJAHEE, P.S. NAUTHAN, DISTRICT-WEST CHAMPARAN BETTIAH BIHAR ...........Respondent(s)
BEFORE: HON'BLE MR. DR. S.M. KANTIKAR,PRESIDING MEMBER HON'BLE MR. DINESH SINGH,MEMBER For the Petitioner : Mr. Pawan Kumar Ray, Advocate For the Respondent :
Dated : 19 Sep 2018 ORDER
1. We have heard learned counsel for the revisionist and perused the record.
2. The backdrop to this revision petition (execution) is as below:
The consumer complaint was allowed by the District Forum vide its Order dated 25.04.2006:
It is, therefore, ordered that this complaint petition is allowed and the O.Ps, who are jointly and severally liable for payment, are directed to pay deposited amount with 10% interest p.a. within two months from the date of communication of the order. They are further directed to pay Rs. 5000/- only (five thousand) towards costs of litigation to the complainants.
Appeal was dismissed by the State Commission with modification vide its Order dated 21.04.2009:
In the light of above discussions we find no merit in this appeal & appeal is dismissed with Rs 10 (ten) thousand (inclusive of all costs announced by learned D.C.F). & we confirm that order of learned D.C.F. That all the parties including appellant are jointly and severally liable to pay the total maturity amount along with 10% per annum interest from the date of maturity till the date of payment. In view of the fact that per scheme almost 30 to 33% per annum interest was payable, we direct that above amount must be paid within 45 days of receipt or delivery of the copy of the under failing which interest payable will be 18% per annum from the date of it's order. Let copies be sent to all the concerned parties including other O.Ps on the address given in complaint.
Revision was dismissed by the National Commission vide its Order dated 18.02.2010:
Vide order dated 6.10.2009 notice was ordered to be issued to the respondents against admission subject to remittance of Rs. 3000/- to each of the respondents /complainants directly by way of demand drafts to meet the expenses of proceedings. Petitioner was also to deposit the principal amount and interest of around Rs. 2,15,000/-. On 06.10.2009, the case was postponed to 14.12.2009, on which date, period of two months was further given to the petitioner to deposit the amount pursuant to the order dated 6.10.2009. Petitioner has not deposited the amount till date.
Revision petition is, therefore, dismissed for non-compliance of the orders dated 6.10.2009 and 14.12.2009.
SLP was dismissed by Hon'ble Supreme Court vide its Order dated 06.08.2010:
The special leave petition is dismissed.
The Order dated 25.04.2006 of the District Forum as upheld and modified by the State Commission vide its Order dated 21.04.2009 has attained finality within the meaning of section 24 of the Act 1986.
In execution the District Forum vide its Order dated 26.10.2015 sentenced the opposite parties / accused to one year's simple imprisonment for failure to comply with the Order that has attained finality:
Both D.C.F. & Hon'ble State Commission have held all the 12 O.Ps jointly & severally liable. Inspite of issuance of copy of order to all O.Ps, they did not comply the order inspite of one year lapse after the order of appellate Forum. Hence all the O.Ps have failed to comply the order of D.C.F. as confirmed by the appellate Forum. Accordingly all the 12 O.Ps are hereby sentenced to undergo S.I. of 1 year (one year) under the provision of section - 27 of C.P. Act. Issue N.B.W. Let copy of this order be issued to all O.Ps and D.H. Appeal (execution) was dismissed with modification by the State Commission vide its Order dated 16.03.2018 wherein the State Commission agreed with the District Forum but reduced the period of sentence to six months:
On perusal of the order passed by the District Forum it would appear that the District Forum has considered the matter in right perspective. All 12 opposite parties jointly and severally have been made liable to pay the invested maturity amount with 10% interest. When all opposite parties failed to comply the District Forum & State Commission order then the District Forum has imposed a punishment and sentenced for one year rigorous imprisonment to all 12 opposite parties under section 27 of consumer protection Act 1986. We do not find any reason to take a different view in thus matter however the period of sentence is reduced to six month.
This instant revision petition (execution) has been filed against the Order dated 16.03.2018 of the State Commission [passed in the appeal (execution)].
3. We may first draw attention to paras 1 and 2 of the State Commission's Order dated 21.04.2009, to have an appreciation of the facts and nature of this case:
This appeal is directed against the order date 25/04/2006 passed by D.C. F. West Champaran, Bettiah in C.C. no. 308 of 1998 whereby and where under the leaned forum directed opposite parties including appellant jointly and severally liable to pay to complainants maturity amount of the deposits made by complainants in various schemes floated by opposite party no.1 a non-banking financial institution along with 10% Interest within 2 months from the date of communication of order.
The case of the complainant in brief was that in the year 1994 O.P. No. 11 & 12 persuaded them to invest money in various fixed deposit schemes floated by O.P.No.1 Basundhra Kutumbcum and assumed genuineness and credibility of it and prompt repayment by the company and also assumed that they would pay back the complainants their due dividends, that on such persuasion and assurances complainants in the year 1997 deposited money in schemes named as Vasundhra Marine Products doubling the money in 3 years; Vasundhra Products Limited getting certain number of goats and double the money in 37 months; opened recurring accounts, schemes, Minakshi, Anuradha etc, some of which matured for payment in 1998, some were to mature in the year 2000; the recurring deposit of complainant no. 5 matured in 1998 but O.P. No.11 & 12 instead of making payment started deferring payment on one project or other; that after enquiry complainants became suspicious and decided not to keep their money in the company & gave applications for the same which was connected by O.P. No.11 & 12 on 21.8.98 and they were asked to come for payment on 22.09.1998 but on 16.09.1998 O.P. No. 11 & 12 closed the offices and disappeared. Hence, the complainant.
4. In the context of the contentions and arguments on this count, we may note that the substantive matter that has attained finality is ordinarily not re-opened and re-appraised in execution. Nevertheless, to address the arguments made on 16.07.2018 by learned counsel for the revisionist, we see no miscarriage of justice or any other reason on fact or law to re-open and re-appraise the matter that has attained finality.
5. We also do not find any merit in the contention and arguments that composite order should have been passed under section 25 and section 27 of the Act 1986. The two sections are for different purposes:
Section 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 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. 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 the National Commission, as the case may be, such trader or 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 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.
Section 25 deals with enforcement of orders, section 27 deals with penalties for failure or omission to comply with orders. The two are for different purposes, in different domains. The one is of 'civil' nature, concerning with recovery of dues. The other is of 'criminal' nature, concerning with punishment of imprisonment or fine or both.
It is erroneous to contend and argue that a composite order under section 25 and 27 should have been passed. The one can proceed independent and separate of the other, the one alone can proceed at a time, or the both together can proceed simultaneously (the only requirement is justified need and lawful proceedings).
6. We find no fault in the impugned Order dated 16.08.2018 of the State Commission. The Order dated 25.04.2006 of the District Forum as upheld and modified by the Order dated 21.04.2009 of the State Commission has admittedly attained finality. The Order that has attained finality has admittedly not been complied with. In execution the opposite parties have been sentenced to one year's simple imprisonment by the District Forum. The District Forum's Order has been examined and upheld by the State Commission with modification of the sentence to six months. The revision petition (execution) has been filed within the scope of Section 21 (b) of the Act 1986. On the face of it, a jurisdictional error, or a legal principle ignored, or miscarriage of justice, is not visible to us in the impugned Order of the State Commission.
7. We note that the punishment should be commensurate with the offence, and in our considered view the sentence of six months is just and appropriate in the given facts and situation.
8. We also note that recovery of dues and payment of the awarded amount has as yet not been enforced. The consumers have as yet to get their just adjudicated dues.
9. While upholding and sustaining the sentence of six months' simple imprisonment imposed by the State Commission under section 27 of the Act 1986, we feel it necessary to direct the District Forum to also undertake the due enforcement proceedings under section 25 of the Act to effect the requisite recovery of dues and its payment to the consumer - complainants as per the law.
10. A copy each of this Order be sent to the District Forum and the State Commission by the Registry within ten days. A copy each of this Order be also sent to all the complainants by the Registry within ten days.
So directed and disposed of.
...................... DR. S.M. KANTIKAR PRESIDING MEMBER ...................... DINESH SINGH MEMBER