State Consumer Disputes Redressal Commission
The New India Assurance Co. Ltd. vs Sunil Kr. Neogi on 30 September, 2008
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO.49/RP/08 DATE OF FILING:24.6.2008 DATE OF FINAL ORDER:30.09.2008 PETITIONER The New India Assurance Co. Ltd. 23, Ganesh Chandra Avenue Kolkata 700 013 RESPONDENT Sunil Kr. Neogi Samik Kr. Neogi P-32, Vijoy Nagar, Madhyamgram North 24-Parganas BEFORE : HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT MEMBER : Mr. S.N. BASU MEMBER : MRS. S. MAJUMDER FOR THE PETITIONER : Mr. N.R. Mukerjee, Advocate FOR THE RESPONDENT : Mr. Uday Ch. Jha, Advocate : O R D E R :
HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT This Revisional Application was filed by New India Assurance Company Ltd. challenging the order dated 27.5.2008 whereby the Judgment Debtor/Petitioner was directed to satisfy the decree on or before 27.6.2008 in default steps would be taken as per provisions of law.
Mr. N.R. Mukherjee, the Ld. Advocate for the Judgment Debtor/ Petitioner contended that the Consumer Protection Act as its stands today, does not permit execution of the decree by the Forum as order of the Forum does not enjoy the status of decree of a Civil Court after amendment of the Act in the year 2002.
It is contended that as the order sought to be implemented was for payment of money the only course open for its implementation is u/s.25(3) of the Act. The Forum cannot avail of any other course for execution of its order granting relief of payment of money. The Section 27 of the Act does not empower the Forum to issue warrant of arrest for non-compliance of the final order passed by a Forum and powers u/s.13(4) of C.P. Act, were referred to. Only in case the attendance in court is directed and still not complied by the Judgment Debtor, Section 27 can be availed of. It is argued that the said Section 27 is for imposition of penalty for non-compliance of an order by which Forum gives certain specific directions in course of the proceeding before it and not for execution of its final order granting monetary relief for which Section 25(3) has been specifically provided.
On behalf of the Decree Holder it is contended by Mr. Uday Chandra Jha, Ld. Advocate that the Consumer Protection Act, 1986 was amended by Consumer Protection (Amendment) Act 2002 amending various Sections out of which Sections 25 and 27 are under consideration presently.
In respect of these two Sections amendment indicate that for execution of any order passed in its final judgment by a Forum, old procedure of execution like a Civil Court in respect of its decree, was omitted and instead it was made more effective by amending Section 27 and prescribing a procedure for imposition of penalty for non-compliance of any order passed by a Forum and in respect of such imposition of penalty the Forum/Commission is to exercise power equivalent to First Class Judicial Magistrate in a summary trial. It is stated that the legal fiction created originally in the 1986 Act by treating an order of a Forum/Commission as decree by a Civil court executable in the same manner, was omitted and instead implementation of order was provided by imposition of a penalty u/s.27 exercising powers of a First Class Judicial Magistrate in a summary trial. Reliance was placed on the Judgment in the case of M/s. Maruti Udyog Ltd.-Vs-Ram Lal reported in 2005(1) Supreme 721, State of Karnataka-Vs-Vishwabarathi House Building Cooperative Society reported in 2003(2) Supreme 578 and Prudential Capital Markets Ltd.-Vs-Dipankar Guha reported in 2007 CTJ 1125.
The Ld. Advocate for the Decree Holder argued that in respect of enforcement of a decree the provisions of Sections 13 and 14 are not be relevant and, therefore the provision of various reliefs, are not to be looked into for interpreting Sections 25 and 27 of the Act. It is argued that the contention of the Judgment Debtor if accepted restricting applicability of Section 27 only in those cases where relief has been granted but no monetary relief is included, the language of the Section 27 has to be violated. The expression any order used in Section 27 does not permit any such restriction.
Law is clear that when ordinary meaning can be attributed to a statutory provision, no other word can be read in the said provision.
It is contended that Section 27(2) has a non-obstante clause and therefore limitations of applicability of summary trials on the basis of quantum of penalty cannot be made applicable in a proceeding u/s.27.
Extent of the penalty provided in Section 27 will not restrict its application so far as procedure of a summary trial by a Criminal Court is concerned. It is argued that the expression complaint used in Section 27 is not a complaint as defined in Section 2(1)(c) but it is a complaint as used in Section 200 of the Code of Criminal Procedure. Summary trial procedure is applicable both in summons cases and warrant cases and, therefore, the specific reference to power of a First Class Judicial Magistrate and proceeding applicable to a summary trial cannot be read with a restrictive meaning.
Reference was made to the judgment in the case of State of Karnataka-Vs-Parmjit Singh reported in 2006 (2) Supreme 543.
On facts it is stated that in the present case after the appeal was dismissed and the order of the Forum had reached a finality, impugned order was passed.
With regard to the general defect as argued by the Judgment Debtor that a wrong person may be arrested in case a company is a Judgment Debtor, it is contended by Decree Holder that in such a case that person is always entitled to bring it to the notice of the Forum concerned to get the wrong corrected. Mere such possibility will not help interpretation of the law.
It is argued that when procedure under Code of Criminal Procedure is made applicable personal appearance of a judgment debtor is required everyday of hearing before the Forum applying the principles of Section 205 of the Code of the Criminal Procedure.
Considering the aforesaid it appears that when the law was amended by the Amending Act of 2002, the earlier fiction created making an order of a Forum/Commission a decree of a Civil Court was taken away and instead the procedure and powers of a First Class Judicial Magistrate trying a summary trial was made applicable. It seems that legislature was not satisfied with the application of Civil Courts lingering procedure of implementation of a decree in respect of execution of an order passed in a summary proceeding under the Consumer Protection Act and, therefore, the quicker proceeding of criminal courts was made applicable for implementation of the order of a Forum/Commission. It is rightly argued by the Decree Holder that power and procedure of a First Class Judicial Magistrate trying a summary trial were enacted in Section 27 by reference and all the provisions of Cr. P.C. for such trials are to be read in the said Sec.27. The judgment in the case of P.C. Agarwala-Vs-Payment of Wages Inspector reported in 2005(8) SCC 104 supports this view.
In this respect the Judgment Debtors contention is that penalty in C.P. Act being three years, the provisions of summary trial/summons cases cannot be made applicable. But this contention is not acceptable as merely the procedure has been enacted by reference and therefore the quantum/period of penalty has nothing to do in this respect.
So far as the contention of the Judgment Debtor is concerned that Section 27 only deals with reliefs of any nature except monetary relief as in respect of monetary relief Section 25(3) was provided, does not appear to be acceptable. The reason for such conclusion is that Section 27 mentions any order and there is no guideline in Section 27 which makes us to read such an expression any order with a restrictive meaning. It appears that Section 25(3) gives an option to a Decree Holder to apply under the said provision for recovery of money. Section 27 provides an additional avenue in respect of any order whatsoever and the section itself does not indicate any restrictive application.
The contention of the Judgment Debtor is that C.P. Act does not speak of arrest and Section 13(4) only speaks of enforcing attendance of a defendant or a witness. But Section 13 relating to pending proceedings under this Act cannot be looked into for the purpose of interpreting other provisions of the statute which speak of stages after final judgment. Moreover Sec.13(4) has a specific purpose which in no way can be looked to for ascertaining scope of Sec.27.
The case of Patel Roadways Ltd.-Vs-Birla Yamaha Ltd. 2000(2) Supreme 594 referred by Judgment Debtor was decided in different context and is not applicable in the case in hand. The questions considered by the Full Bench of Andhra Pradesh High Court in Dr. C.V. Ratnam-Vs-Union of India reported in 2002 CTJ 421 were considered by the Apex Court in the case of State of Karnataka-Vs-Vishwabarathi House Building Co-op. Society (Supra) judgments in the both the cases having been written by the Honble Mr. Justice S.B. Sinha. The other judgment referred by the judgment debtor being 2000(3) Supreme 363 (R.N. Dey-Vs-Bhagyabati Pramanick) having held that contempt proceeding cannot be used for executing decree or implementation of order, also has no application in this case.
With regard to the contention that when an order has been passed against a company, a junior officer of the company cannot be arrested as he does not represent the company, it appears that it is true that in such a case a company is the Judgment Debtor. But when a company violates any order which results in arrest of the violator, Principal Officers of the company are to be held responsible. While finding as who is to be dealt with when a company has committed an offence our Apex Court has followed the classic statement of Viscount Haldane, Lord Chancellor in Lennards carrying Co. Ltd.-Vs-Asiatic Petroleum Co. Ltd. (1915 AC 705) which is as follows:-
A corporation is an abstraction. It has no mind of its own any more than it has a body of its own; its active and directing will must consequently be sought in the person of somebody who for some purposes may be called an agent, but who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation. That person may be under the direction of the shareholders in general meeting; that person may be the board of directors itself, or it may be, and in some companies it is so, that person has an authority coordinate with the board of directors given to him under the articles of association..
Following the said principle the Apex Court in the case of J.K. Industries-Vs-Chief Inspector of Factories & Boilers 1996(6) SCC 665 held as follows:-
Where the company owns a factory it is the company which is the occupier, but since company is a legal abstraction without a real mind of its own, it is those who in fact control and determine the management of the company, who are held vicariously liable for Commission of Statutory Offences. The directors of the company are, therefore, rightly called upon to answer the charge, being the directing mind of the company.
Therefore in respect of a company judgment debtor, such persons are to be dealt with for the offence of non-compliance of the order of the Forum/Commission.
The contention of the Judgment Debtor that the restricted use of Section 27 is permissible only when the order of the Forum/Commission has reached a finality, also is not acceptable as mere filing of an appeal does not amount to stay of the order appealed against. Unless stayed, or set aside a final judgment of a Forum/Commission has to be obeyed by the Judgment Debtor.
With regard to definition of person we have considered the provisions of law and particularly Section 2 (m) of C.P Act.
But in view of sub-Clause (iv) of Section 2(m) of the C.P. Act and Section 3(42) of General Clauses Act, the position is clear that a person includes a company.
With regard to the further contention of the Judgment Debtor that even in Section 27 a formal conferment of power is required on Forum/Commission to enable it to act as a First Class Magistrate, it appears that language of the said Section 27 makes it clear that by the said statutory provision itself such conferment of power was made on Forum/Commission. A contrary meaning will make the said Section 27 infructuous as the said Act has not prescribed any authority which is empowered to such conferment nor any procedure which makes such conferment possible. The judgment of the Apex Court in the case of State of Karnataka-Vs-Parmjit Singh reported in 2006(4) SCC 49 considered the Amendment of the Act of 2002 holding that such conferment of power was there by the said Amendment.
The scope and meaning of these two Sections 25 and 27 (prior to amendment in Sections 25 and 27) were considered by the Apex Court in the case of State of Karnataka-Vs-Vishwabarathi House Building Co-op. Society reported in 2003(3) SCC 412 and the relevant findings are as follows:-
Furthermore, Section 27 of the Act also confers an additional power upon the Forum and the Commission to execute its order. The said provision is akin to Order 39 Rule 2-A of the Code of Civil Procedure or the provisions of the Contempt of Courts Act or Section 51 read with Order 21 Rule 37 of the Code of Civil Procedure. Section 25 should be read in conjunction with Section 27. A Parliamentary statute indisputably can create a tribunal and might say that non-compliance of its order would be punishable by way of imprisonment or fine, which can be in addition to any other mode of recovery.
It is well settled that the cardinal principle of interpretation of statute is that courts or tribunals must be held to possess power to execute their own order.
It is also well settled that a statutory Tribunal which has been conferred with the power to adjudicate a dispute and pass necessary order has also the power to implement its order. Further, the Act which is a self-contained Code, even if it has not been specifically spelt out, must be deemed to have conferred upon the Tribunal all powers in order to make its order effective.
The said observations apply equally to the said provisions even after amendment.
In above view of the findings we hold that an order of a Forum/Commission can be implemented u/s27 of the C.P. Act and the Forum/Commission is entitled to issue warrant of arrest to the Decree Holders not complying with the final order of a Forum/Commission. Such compliance has to be by a Judgment Debtor in respect of any final order of a Forum/Commission unless the same is stayed or set aside by a superior Court/Commission.
In respect of interpretation of these provisions such meaning of the relevant procedural law is acceptable which makes the C.P. Act more effective and beneficial to the consumers so that scheme of the Act benefits. Law in this regard has been decided by the Apex Court in the case of Owners and Parties interested in M.V. Vali Pero-Vs-Fernandeo Lopez reported in AIR 1989 SC 2206 and the relevant finding therein is as follows:-
Rules of procedure are not by themselves an end but the means to achieve the ends of justice. Rules of procedure are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice. Construction of a rule of procedure which promotes justice and prevents its miscarriage by enabling the Court to do justice in myriad situations, all of which cannot be envisaged, acting within the limits of the permissible construction, must be preferred to that which is rigid and negatives the cause of justice. The reason is obvious. Procedure is meant to subserve and not rule the cause of justice. Where the outcome and fairness of the procedure adopted is not doubted and the essentials of the prescribed procedure have been followed, there is no reason to discard the result simply because certain details which have not prejudicially affected the result have been inadvertently omitted in a particular case. In our view, this appears to be the pragmatic approach which needs to be adopted while construing a purely procedural provision. Otherwise, rules of procedure will become the mistress instead of remaining the handmaid of justice, contrary to the role attributed to it in our legal system.
In so far as the present facts are concerned it appears that application was made by the Decree Holder for compliance of the order by the Judgment Debtor and specific direction was given by the executing Forum and only on non-compliance thereof, impugned order was passed. As regards the officer who is to represent the company, in case a company is found to have committed an offence, its Principal Officers and/or the person carrying on its function are liable as held hereinabove. Contention of the Judgment Debtor that a junior officer who was not even a party to the proceeding cannot be arrested, requires consideration. In such case the concerned officer can approach the Forum/Commission seeking his relief pointing out the Principal Officers who are liable on behalf of such Judgment Debtor company.
In view of the above findings the Revision Petition is disposed of without interfering with the impugned order but granting liberty to the petitioner to approach the Forum below indicating the Principal Officers of the Judgment Debtor liable in the matter. No order as to costs.
(S. Majumder) (S.N. Basu) (Justice A. Chakrabarty) MEMBER(L) MEMBER PRESIDENT