State Consumer Disputes Redressal Commission
Tushar D Raval vs Shukra Land Developers Ltd on 30 August, 2022
Details DD MM YY
Date of Judgment 30 08 2022
Date of filing 02 11 2021
Duration 28 09 -
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
AEA/04/2022
Court No. 1
1. Tushar D. Raval,
Power of attorney holder of Natwarlal S. Joshi,
2. Hina Tushar Raval,
Both are residing at: B/2/101
Anupam Apartment Nr. Nirman School,
B/h. Rahul Flat, Vastrapur Village,
Ahmedabad-380015. ...Appellants
Vs
Shukra Land Developers Ltd.
Panchdhara Complex, 3rd Floor,
Nr. The Grand Bhagwati Hotel, S. G. Highway,
Bodakdev, Ahmedabad-380054. ...Respondent
Ld. Advocate, Mr. R. P. Patel, for the appellants.
Ld. Advocate, Mr. V. M. Pancholi, for the respondent.
Coram :Hon'ble Mr. Justice V. P. Patel, President
Smt. A. C. Raval, Member
Order by Hon'ble Mr. Justice V. P. Patel, President
1. Appellants have filed this appeal under Section 73 of the Consumer Protection Act, 2019, being aggrieved and dissatisfied with the order dated 8.10.2021 passed by the Consumer Dispute Redressal Commission, Ahmedabad (Rural) in Execution Application No. 05 of 2020.
2. Heard learned Advocate Mr. R. P. Patel, for the appellants and learned Advocate Mr. Varshal Pancholi, for the Respondent. We have perused the record of the case and impugned order.
2.1. The appellants are the original complainants and Respondent is the original opponent. Hereinafter the appellants and Respondent will be referred as per their original status.
Drashti A-22-4 Page 1 of 103. Facts of the case of the complainant: The complainants have booked the flat No. A/30 on 15/5/02 by paying Rs. 1,70,000/- and Rs. 58,125/- through cheque to the opponent. That the complainants through letter dated 17/10/15 cancel the booking of plot and requested to refund the amount. That the opponent has refused the request of the complainants to refund the amount or cancel the plot. Hence, complainant has filed the complaint before the learned District Commission and claimed amount with mental harassment. The District Forum has partly allowed the said complaint No. 40/2017 on 13.11.2019 and ordered the opponent to execute sale deed in favour of the complainant or in alternative if execution of the sale deed is not possible then opponent has to pay the amount of Rs. 2,28,125/- with 7% interest to the complainant. It is also directed to pay Rs.3,000/- on the head of pain, shock and suffering and Rs. 2,000/- towards the litigation. That for the execution of the order appellants has filed execution application No. 5/2020 before the learned District Commission. The said execution application is disposed of vide order dated 8.10.2021.
4. Order under challenge: The learned District Commission has disposed the Execution Application with observation that the same is premature and not in accordance with the judgment and order passed in CC No. 40/2017 as the same was filed without complied with para 2 of the order passed in CC No. 40/2017.
5. Argument of the appellant: Learned Advocate Mr. R. P. Patel for the appellant has argued that the order passed by the learned District Commission is against the principle of natural justice. That the learned District Commission has not considered the provision of C.P. Act,1986. That the order passed by the learned District Commission is against equity, justice and good conscious therefore, it is required to be quash and set aside. That the order passed is perverse, erroneous and bad in law. That the learned District Commission has not considered the important facts. That the learned District Commission has not framed charge or recorded plea and rejected the Execution Application. That the learned District Commission has not followed Drashti A-22-4 Page 2 of 10 the procedure of summary trial. He has requested to allow the appeal and quash and set aside the impugned order passed by the learned District Commission.
6. Arguments of the opponent: Learned Advocate for the opponent has argued that the order passed by the learned District Commission is legal, valid and correct in eye of law. There is no requirement to interfere in the order passed by the learned District Commission. He has requested to dismiss the appeal with cost.
7. Merits of the case:
The appellants have produced the copy of rojkam of execution application No. 5/2020 wherein, important proceedings are required to be noted which are as under:
Sr. Date Proceedings The Execution Application was admitted and issued
1. 28.1.20 notice to the other side.
Learned advocate Mr. M. J. Indrekar has filed Vakalatnama on behalf of opponent which was taken
2. 16.9.20 on record. Learned Advocate for the appellants has filed an Application to issue warrant against the opponent which was kept fix for hearing.
Learned Advocate for both the parties are present, opponent has requested for adjournment which was
3. 5.3.21 granted. The matter is kept for hearing of Application for bailable warrant.
Heard learned Advocate for both the parties on
4. 30.9.21 application for warrant kept for order.
kept for final order for Application dated 16.9.20 and
5. 10.2.21 30.9.21 Order passed below Application dated 16.9.20 and
6. 14.10.21 30.9.21 and the Axecution Application is disposed of.
On perusing the above rojkam it appears that the learned District Commission has not considered the provisions of summary trial. That the learned District Commission has not recorded the plea, not taken evidence of the appellants and opponent and rejected the execution application.
Drashti A-22-4 Page 3 of 108. This Commission has come across the Judgment of the Hon'ble NCDRC in case of Ramesh G. Kohali Vs. Shivanand Shanbag dated 09.01.2020 wherein, it is held the procedure for conducting the trial for the offence under Section 27 (1) are required to be followed. In that Judgment National Commission has referred the decision of Hon'ble Supreme Court delivered in case of State of Karnataka Vs Vishwabharti Housing Building co-operation society & others (2003) SCC 412.
9. Appellants have produced copy of Execution Application No. 5/2020 at page 33-37. On perusing the same it is stated in the subject that Application was filed under Section 27 of the C.P. Act, 1986. In the said Application the appellants has claimed relief in terms of para 6 which reads as under:
"6. Therefore, the appellants prays as under:
A. Your lordship please issue notice, process and summons against the opponent and initiate actions under Section 27 of C. P. Act, 1986.
B. Your lordship please take the lawful action against the opponent if failing to pay the amount of Rs. 2,86,354.00 to the appellants.
C. Please pass the order any other and further relief which may deem fit."
10. On perusing the subject as well as relief claimed in the Execution Application, the appellants has filed the application under Section 27 of the C. P. Act, 1986 therefore, it is required to refer Section 27 which reads as under:
"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 Drashti A-22-4 Page 4 of 10 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.
(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."
11. On reading section 27 (1) of the C. P. Act, 1986 it is provided that if the person against the whom a complaint is made or the complainant fails or omits to comply with any order made by the Ld. District Commission such person shall be punished with imprisonment or fine or both. Thus, Section 27 (1) is a penal provision.
11.1 Section 27 (2) of the C.P.Act, 1986 provides the power of a Judicial Magistrate of first class for the trial of offences under the C.P.Act, are confirmed on the District Commission. The District Commission shall be deemed to be a Judicial Magistrate of first class for the purpose of Code of Criminal Procedure, 1973 (for short CrPC). By this provision, the District Commission can exercised the power of a Judicial Magistrate of first class, for trial of offence under Section 27 of the C.P.Act.
11.2 Sub-section (3) of Section 27 of C. P. Act, 19686 provides that the offences may be tried as summarily. Therefore, provision as regards to the summary trial provided under Chapter XXI of the Cr. Pc. i.e. Section 260 to 265 are required to be followed.
12. The procedure for summary trials is provided in Section 262 (1) of the Cr. Pc. which are as under.
"262. Procedure for summary trials.
(1) In trials under this Chapter, the procedure specified in this Code for the trial of summons- ease shall be followed except as hereinafter mentioned."
It means for summary trial the procedure of summons case by the Magistrate under Chapter XX i.e. Section 251 to 259 are required to be followed. From the conjoint reading of the Section 27 of the C. P. Act, 1986 and chapter XX and XXI of the Cr. Pc. the District Drashti A-22-4 Page 5 of 10 Commission has to follow the procedure laid down for the summary trial given for the trial of summons case to conduct the trial of the offence under section 27(1) of the C.P. Act, 1986.
13. Procedure to be followed by District Commission:- There are two remedies available to the complainant for implementing the order passed by the District Commission
(i) Civil remedy under section 71 of the C.P. Act for enforcement of order and
(ii) Criminal remedy under section 72 of the C.P. Act penalty for non compliance of order.
There is no bar to file both Applications under section 71 of the C.P. Act for enforcement of order of Consumer Commission and an Application under section 72 of the C.P. Act for penalty for non- compliance of order. But it should not be filed simultaneously to avoid burden of the Commission and achieve goal of preamble of the Act the timely and effective adjudication and settlement of consumer disputes.
13.1 The complainant cannot take recourse of two remedies at a time in one proceeding. Further, the District Commission also cannot allow to proceed the complainant with both the remedies under section 71 of the C.P. Act and section 72 of the C.P. Act at a time in single proceeding. The reasons are obvious that for the proceeding under section 71 of the C.P. Act the District Commission has to proceed under order C.P. Code where as for the proceeding under section 72 of the C.P.Act the District Commission has to proceed to conduct trial under Criminal Procedure Code.
14. Cognizance: The District Commission being deemed to be a Judicial Magistrate of first class can take cognizance of the offence of Section 27 of the C. P. Act under Section 190 of Cr. Pc.
As per Section 190 of the Cr. Pc. the Magistrate may take cognizance of the offence which reads as under:
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.Drashti A-22-4 Page 6 of 10
14.1. The District Commission may also take cognizance of the offence under Section 27 (1) of the C. P. Act, upon the receiving the complaint of facts which constitute the offence under Section 27 (1) of the C.P.Act. Moreover, the District Commission can also take the cognizance Suo Moto under Section 190 (1) (C) of the Cr. Pc.
14.2. Security Presence of opponent/accused: Upon receiving the complaint the District Commission has to issue a summons under Section 61 of the Cr.Pc. read with Section 27 of the C. P. Act in writing for the securing the presence of the opponent/accused.
If the accused/opponent is served with the summons and if he has not appeared before the District Commission, the District Commission may issue bailable/non-bailable warrant under Section 70 to 73 of the Cr.Pc. to secure the presence of the opponent/accused. The District Commission may also order to execute a bond with or without sureties for his appearance before the commission under section 88 of Criminal Procedure Code.
14.3. Recording of plea: When the accused/opponent appears or is brought before the District Commission, the District Commission has to record the plea under Section 251 of the Criminal Procedure Code, by stating the particulars of the offence alleged under Section 27 (1) of the C. P. Act to have been committed by him and he shall be asked whether he pleads guilty or has any defence to make.
If the accused/opponent pleads guilty, the District Commission shall record the plea as nearly as possible in the words used by the accused and may in his discretion convict the opponent/accused under Section 252 of the Criminal Procedure Code in terms of section 27 of Criminal Procedure Code.
14.4. Evidence of complainant: If the District Commission does not convict the accused/opponent under Section 252 of Criminal Procedure Code, the District Commission shall proceed to hear the Drashti A-22-4 Page 7 of 10 prosecution/complainant and the District Commission shall take all such evidence (oral or documentary) as may be produced in support of the complaint under Section 254 (1) of the Criminal Procedure Code. The District Commission may issue a summons to any witness directing him to attend Commission or to produce any document or other thing at the cost of complainant. Of course the evidence should be relevant to for the purpose of the proceeding initiated under section 27 of C.P. Act. Considering the nature of the evidence, which would be relevant for the purpose of the proceedings instituted under section 27 of the C.P. Act, such evidence, can be given on affidavits, as provided in section 296 of Criminal Procedure Code read with section 264 or Criminal Procedure Code.
14.5. Recording of further statement: As section 313 or CrPC is applicable to every inquiry or trial, the district commission has to proceed for further statement. After the evidence of the prosecution/complainant is over the District Commission has to examine the accused/opponent personally under Section 313 (1) of the Cr.PC. for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him.
14.6. Evidence of Accused/Opponent: Thereafter, the District Commission has to heard the accused/opponent and take all such evidence as may be produced in his defense under Section 254 (1) of the Cr. PC. if it is necessary the Magistrate may issue the summons to any witness of the opponent/accused at his expenses under Section 254 (2) and (3) of the Cr. PC. Considering the nature of proceeding the District Commission may ask the Accused to file affidavit of himself and witnesses by way of his examination in chief. The District Commission may disallow the evidence if found to be irrelevant or frivolous or aimed at prolonging the trial. The complainant of course the method of interrogation may also be adopted for cross examination by both parties, as mandate of the Act of summary trial should not be defeated.
Drashti A-22-4 Page 8 of 1014.7. Argument of Finding: After the evidence is closed by the opponent/accused the concise oral arguments or record the brief memorandum of arguments advanced by both the parties i.e. complainant and opponent/accused under Section 314 of the Cr. Pc are required to be considered.
14.8. Recording of Finding: After the hearing of the both the parties the Magistrate may proceed under Section 255 to record the acquittal if the accused is not find guilty under Section 255 (1) of the Cr. Pc. If the District Commission finds offence is proved, accused/opponent may be convicted under Section 255 (2) of the Cr. Pc. and imposed sentence as mentioned in the Section 27 (1) of the C. P. Act, 1986. The other provision as regards to the summons case under chapter XX are also applicable for the proceedings before the District Commission.
15. Now revert to the case on hand, the District Commission has not adopted the procedure prescribed in chapter XX and XXI of criminal procedure code read with section 27 of the C.P. Act 1986. Thus the impugned judgment and order passed by learned District Commission is not correct, proper and legal in eye of law.
16. We have considered the grounds stated in memo of petition, reasons stated in impugned order passed by the District Commission, documentary evidence produced on record, arguments advanced by Advocates for the parties and facts and circumstances of the case. We find that the District Commission has not exercised a jurisdiction vested in it by the law. The District Commission has acted in exercise of its jurisdiction illegally or with material irregularity in dismissing the execution application filed by the original complaintant. Therefore the Appeal in Execution matter is required to be allowed. Hence, in the interest of justice following order is passed.
ORDER I. The Appeal in Execution No.04/2022 is hereby allowed.
Drashti A-22-4 Page 9 of 10II. The judgment and order dated 08/10/2021 and 14/10/2021 passed by the learned District Commission in Execution Application No.05/2020 are hereby set aside and the matter is remanded back to the District Commission.
III. The District Commission is hereby directed and order to readmit the Execution Application No.05/2020 under its original number in the relevant institution register and proceed to determine the Execution Application; a fresh according to law.
IV. This Commission has not opined on merit of the case, therefore, District Commission will decide the Execution Application under section 72 of C.P. Act according to law without being influenced by the observation made in the order of this appeal.
V. No order as to cost.
VI. The Registrar SCDRC is directed and ordered to circulate this
judgment through E-MAIL in PDF format to the all President and Members of the District Commissions of the State to follow the above procedure in case of Execution Application filed under section 27 or C.P. Act 1986/section 72 or C.P. Act 2019.
VII. Copy of this order be provided free of cost to the parties.
VIII. The registry is directed to send a copy of this order to the learned District Commission through E-mail in PDF format the taking necessary action.
Pronounce in open court today on 30/08/2022.
[Ms. A. C. Raval] [Hon'ble Justice V.P. Patel]
Member President
Drashti A-22-4 Page 10 of 10