State Consumer Disputes Redressal Commission
P Parameswaran vs Annie Jose on 26 September, 2017
Daily Order PKERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL.NOs.78/16, 79/16 and 80/16 and 99/16,100/16, 101/16, 102/16 and 103/16 COMMON JUDGMENT DATED : 26.09.2017 (AppealNo. 78/16 filed against the order dt. 20.04.2015 inCPST No.271/15 in E.A.No.165/2013 in CC 312/2010, AppealNo. 79/16 filed against the order dt. 20.04.2015 inCPST No.269/15 in E.A.No.164/2013 in CC 311/2010, AppealNo. 80/16 filed against the order dt. 20.04.2015 inCPST No.270/15 in E.A.No.166/2013 in CC 313/2010, AppealNo. 99/16 filed against the order dt. 17.06.2015 inCPST No.402/15 in E.A.No.223/2013 in CC 361/2008, AppealNo. 100/16 filed against the order dt. 03.07.2015 inCPST No.193/15 in E.A.No.167/2009 in CC 11/2008, AppealNo. 101/16 filed against the order dt. 26.10.2015 inCPST No.192/15 in E.A.No.132/2012 in CC 730/2007, AppealNo. 102/16 filed against the order dt. 02.09.2015 inCPST No.111/15 in E.A.No.262/2012 in OP1062/2007, AppealNo. 103/16 filed against the order dt. 03..07.2015 inCPST No.316/15 in E.A.No.261/2012 in OP 1066/2007 Of CDRF, Thrissur ) PRESENT. JUSTICE SHRI.S.S.SATHEESACHANDRAN : PRESIDENT SRI.V.V.JOSE : MEMBERAPPELLANTS IN A.78/16, 79/16 AND 80/16
K.M.Surendran, Kolliyattil House, P.O.Kanimangalam, Thrissur A.T.Jose, Arimboor House, Kanimangalam P.O, Thrissur M.G.Vijayan, Melveettil House, Kanimangalam P.O,Thrissur Mr.K.K.Venugapalan, Krishnakripa, Kinoor House, Alumvettuvazhi P.O, Koorkkencherry, Thrissur P.G.Babu, Perinchery House, Chiyaram P.O, Thrissur T.K.Krishnan, Thahalhuveettil House, Panamukku P.O, Nedupuzha, Thrissur By Advocate Sri.Reghukumar RESPONDENTS IN A.NO.78/2016 Dr.Bindu , W/o P.S.Sumin, Pandari House, Ayyanthose P.O, Trissur M/s Sooryavilasom Kuries & Loans (P) Ltd, Kanimangalam, Thrissur represented by its Chairman.
RESPONDENTS IN A. 79/20016P.S.Sumin, S/o P.K.Sadanandan, Pandari House, Ayyanthole P.O, Thrissur Abinand (Minor) represented by father Sumin, Pandari House, Ayyanthole P.O, Thrissur M/s Sooryavilasom Kuries & Loans (P) Ltd, Kanimangalam, Thrissur represented by its Chairman RESPONDENTS IN A.NO.80/2016 P.K.Sadanandan, Pandari House, Ayyanthole P.O, Thrissur M/s Sooryavilasom Kuries & Loans (P) Ltd, Kanimangalam, Thrissur represented by its Chairman APPELLANTS IN A.NO.99/16,100/16,101/16, 102/16 AND 103/16 P.Parameswaran, Panikyaparambil House, Panamukku, Kanimangalam P.O, Thrissur P.C.Varghese, S/o Chakku, Peramangalam House, Venginissery V.Pradeep, Vattaparambil Vadakoot House, P.O, Kanimangalam, Thrissur By Advocate Sri.George Cherian Karippaparambil( in A.Nos.99/16,101/16) By Advocate Sri.S.Reghukumar (In A.Nos.100/16,102/16 and 103/2016 RESPONDENTS IN A. NO.99/16 Mallika Mohan, Gramala House, Koorkkencherry P.O, Thrissur T.Sukumaran, Thirunilathil House, Mahilasamajam Road, P.O, Kanimangalam,Thrissur M.A.Varghese, Mangalam House, Panamukku, P.O. Kanimangalam, Thrissur By Adv.Sri.T.S.Raveendran for 1st respondent RESPONDENTS IN A.NO.100/2016 Suresh, Thonookkara House, Mundur, Thrissur M.V.Varghese, MangalamHouse, Nedupuzha, Thrissur T.Sukumaran, Thirunilathil House, P.O Kanimangalam,Thrissur K.Sudhakaran, Kozhiparambil House, P.O, Kanimangalam,Thrissur RESPONDENTS IN A.NO.101/2016 Annie Jose, W/o P.L.Jose, Panikaran House, P.O, Kanimangalam, Thrissur Koorkkencherry Kuries & Hire Purchase (P) Ltd, SNBP Building, P.O.Koorkencherry, Thrissur represented by its Chairman M.A.Varghese, Mangalam House, Panamukku, P.O.Kanimangalam, Thrissur Unnikrishnan, Kadamankdath House, Panamukku P.O, Kanimangalam, Thrissur T.Sukumaran, Thrunilathil House, P.O Kanimangalam, Thrissur RESPONDENTS IN A.NO. 102/2016 Gracy Sasi David, Kodakkadan House, P.O.Koorkkencherry,Thrissur Koorkkencherry Kuries & Hire Purchase (P) Ltd, SNBP Building, P.O.Koorkencherry, Thrissur represented by its Chairman T.Sukumaran, Thrunilathil House, P.O Kanimangalam, Thrissur M.A.Varghese, Mangalam House, Panamukku, P.O.Kanimangalam, Thrissur K.Sundaran, Kozhiparambil House, Damodaran Ngar, Panamukku P.O, Nedupuzha.
RESPONDENTS IN A.NO.103/2016 K.M.Devassy, Kodakkadan House, Koorkkencherry P.O, Thrissur Koorkkencherry Kuries & Hire Purchase (P) Ltd, SNBP Building, P.O.Koorkencherry, Thrissur represented by its Chairman T.Sukumaran, Thrunilathil House, P.O Kanimangalam, Thrissur M.A.Varghese, Mangalam House, Panamukku, P.O.Kanimangalam, Thrissur K.Sundaran, Kozhiparambil House, Damodaran Ngar, Panamukku P.O, Nedupuzha COMMONJUDGMENT JUSTICE SHRI. S.S.SATHEESACHANDRAN: PRESIDENT
1. These two sets of appeals are filed by some among the judgment debtors against whom execution proceedings are pending for non compliance of the orders passed by the District Forum, Thrissur. The respondents in the appeals are the respective complainant/decree holder in the complaint cases are also some of the other judgment holders.
2. The Decree Holders moved separate applications u/s 25 of the Consumer Protection Act for short 'Act' stating that the judgment debtors have not complied with the order passed by the Forum. The Forum ordered for conversion of those applications to proceedings under section 27 of the Act. Order passed by the Forum directing such conversion of the applications is challenged in these appeals by some among the judgment debtors contending that it is beyond the jurisdiction and empowerment of the Forum.
3. Respondents have been given notice. But they remained absent after service.
4. We heard the learned counsel for the appellant.
5. When an application is moved by decree holder/complainant u/s 25 of the Act for any amount due from any person under an order made by a Forum only a certificate for the said amount to the Collector of the District could be issued by the Forum and on such certificate the Collector has to proceed to recover the amount in the same manner as arrears of land revenue, submits the counsel. When that be the procedure prescribed by Section 25(3) of the Act the Forum cannot resort to proceedings u/s 27 of the Act on an application moved by Decree Holder u/s 25 of the Act is the further submission of the counsel. Learned counsel also urged that if proceedings u/s 27 of the Act are initiated, then, necessarily all steps required to take cognizance of an offence on a complaint following the procedure u/s 190 and 200 of Criminal Procedure Code, for short the "Code" have to be followed and such complaint has to be tried and disposed as per the procedure under that Code.
6. Before proceeding to consider the challenges canvassed by learned counsel for the appellants to impeach the conversion of the application moved u/s 25 of the Act to proceedings to u/s 27 of the Act it will be profitable to take note of the aforesaid provisions of the Act. Section 25(3) of the Act alone is applicable to the present cases is not disputed, and that sub section reads thus :
"(3) Where any amount if 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 Commision 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 of the Act reads as follows:
"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 thousand 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 ofoffences 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 (3) All offences under this Act may be tried summarily by the District Forum or the State Commission or the Natiional Commissiion, as the case may be"
7. Section 25 of the Act before amendment under Act 62 of 2002 enabled a Forum, State Commission or National Commission to execute any order as if it were a decree or order made by a court in a suit, but, after amendment, the procedure t o be followed has gone a drastic change. In the case of interim orders passed and where it is not complied with, after the amendment, the Forum, State Commission or National Commission can order attachment of property of the defaulter and that is covered by Sub Section (1) of Section 25 of the Act. The period during which such attachment, if ordered, will prevail and the consequence of continued non compliance of the order by sale of the property and awarding of damages is covered by Sub Section (2) of Section 25 of the Act. In these cases Sub Section (1) and (2) of Section 25 have no application and admittedly, the applications have been moved by the Decree Holders/complainants u/s 25(3) of the Act. That sub section enables a complainant/decree holder who is entitled to money from any person under the Order of the Forum, State Commission or National Commission to move an application against the person from whom the amount is due and, thereupon, the Forum, State Commission or National Commission is empowered to issue a certificate for the said amount to the District Collector, who shall proceed to recover the amount in the same manner as arrears of land revenue. When such an application is moved by Decree Holder it is not open to the Forum to convert that proceedings to one u/s 27 of the Act, which provides for imposition of imprisonment and also fine treating non compliance of the Order as an offence, is the case of the appellants.
8. Section 27 of the Act demonstrates that no application from any person is required for the Forum, State Commission or National Commission to initiate proceedings against a defaulter who had failed or omitted to comply any Order of the Forum, State Commission or National Commission as the case may be. Empowerment of the Forum to initiate action u/s 27 of the Act is not depended upon a motion from the complainant, but, squarely on the failure/ default of the party against whom an order has been made on a complaint. When that be so, whether the Forum has taken such action on a motion moved by the complainant u/s 25 of the Act or suomoto loses any significance. What is required to commence proceeding u/s 27 of the Act is only satisfaction that there was default or failure by the party to comply with any order made by the Forum. It is crystal clear from the applications moved by the complainant u/s 25 of the Act that, the opposite party failed to comply with the orders , and, then, by the Forum was well within its jurisdiction to proceed u/s 27 of the Act and it is fully empowered to do so. There is no merit in the plea canvassed by the learned counsel for the appellants that in initiating such procedure action for entertaining a complaint u/s 190 and 200 of the Code has to be followed. What is required is only giving an opportunity to the defaulter to show cause why punishment of imprisonment and imposition of fine against him should not be ordered. Omission or default to comply with an order of the Forum by the person against whom such order has been passed on a complaint is an offence u/s 27 of the Act, and the offender thereof is to be tried summarily. No question of registering a complaint recording sworn testimony of complainant arise. Offence is omission or non compliance of the Order and the defaulter thereof has to be summarily tried providing him an opportunity to show cause why he should not punished to a term of imprisonment and also imposed of fine, the maximum of both is regulated by the Section.
9. There is no merit in these appeals, and all the appeals are dismissed directing the parties to suffer their respective costs.
JUSTICE S.S.SATHEESACHANDRAN: PRESIDENT V.V.JOSE : MEMBER pr THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSIION VAZHUTHACAUDE, THIRUVANANTHAPURAM
COMMON JUDGMENT IN A.Nos.78/16, 79/16 and 80/16 and 99/16, 100/16, 101/16,102/16 and 103/16 DATED 26.09.2017