State Consumer Disputes Redressal Commission
Sau.Alka Vijay Jawale, vs Sevakram Kashinath Mahajan on 11 April, 2014
1 R.P.No. :7 & 8/2014
Date of filing:23.01.2014
Date of order:11.04.2014
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD.
REVISION PETITION NOS.: 07 & 08 2014
IN RECOVERY APPLICATION NO.87 OF 2009
IN COMPLAINT CASE NO. : 1233 OF 2008
DISTRICT FORUM : JALGAON.
IN REVISION PETITION NO.07 OF 2014.
Shekhar Vishnu Chaudhari,
R/o Savda, Tq.Raver,
Dist.Jalgaon 425 001. ...REVISION PETITIONER
VERSUS
1. Sevakram Kashinath Mahajan,
R/o Gut No.10/2, Dandekarnagar,
Pimprala, Tq. & Dist.Jalgaon.
2. Faizpur Merchant Co.operative Credit
Society Ltd., Faizpur,
Branch Jalgaon,
Above New Saraswati Dairy, In front of
JDCC Bank, Jalgaon,
Tq. & Dist. Jalgaon 425 001,
Through its Manager,
At present through its Administrator.
3. Sau.Rajani Ravindra Jawale,
R/o Shivaji Nagar, Faizpur, Tq.Yawal,
Dist.Jalgaon 425503.
4. Umakant Khemchand Dhande,
R/o Khanapur, Tq.Raver,
Dist.Jalgaon 425 503.
5. Sharad Devram Rane,
R/o Rane Brothers, Bhusawal Road,
2 R.P.No. :7 & 8/2014
Faizpur, Tq.Yawal,
Dist.Jalgaon 425503.
6. Vijay Abhimanu Chaudhari,
R/o Gaikwad Chal, Kolshewadi,
Tq.Kalyan, Dist.Thane 400062.
7. Devram Sukaji Ingale,
R/o Shiv Colony, Faizpur,
Tq.Yawal, Dist.Jalgaon 425503.
8. Bhaskar Namdeo Nehete,
R/o Hambardi-Kainpul,
Tq.Yawal 425503.
9. Sau.Hemlata Prashant Dhande,
R/o Khanapur, Tq.Raver,
Dist.Jalgaon 425503.
10. Sau.Alka Vijay Jawale,
R/o Shivajinagar Faizpur,
Tq.Yawal, Dist.Jalgaon 425503.
11. Ravindra Chudaman Sarode,
R/o Rozoda, Tq.Raver,
Dist.Jalgaon 425503.
12. Swapnil Narayan Bendale,
R/o Nhavi, Tq.Yawal,
Dist.Jalgaon 425503. ...RESPONDENTS.
IN REVISION PETITION NO.08 OF 2014.
Sau.Alka Vijay Jawale,
R/o Shivajinagar Faizpur,
Tq.Yawal, Dist.Jalgaon 425503. ...REVISION PETITIONER
VERSUS
1. Sevakram Kashinath Mahajan,
R/o Gut No.10/2, Dandekarnagar,
Pimprala, Tq. & Dist.Jalgaon.
3 R.P.No. :7 & 8/2014
2. Faizpur Merchant Co.operative Credit
Society Ltd., Faizpur,
Branch Jalgaon,
Above New Saraswati Dairy, In front of
JDCC Bank, Jalgaon,
Tq. & Dist. Jalgaon 425 001,
Through its Manager,
At present through its Administrator.
3. Sau.Rajani Ravindra Jawale,
R/o Shivaji Nagar, Faizpur, Tq.Yawal,
Dist.Jalgaon 425503.
4. Umakant Khemchand Dhande,
R/o Khanapur, Tq.Raver,
Dist.Jalgaon 425 503.
5. Sharad Devram Rane,
R/o Rane Brothers, Bhusawal Road,
Faizpur, Tq.Yawal,
Dist.Jalgaon 425503.
6. Vijay Abhimanu Chaudhari,
R/o Gaikwad Chal, Kolshewadi,
Tq.Kalyan, Dist.Thane 400062.
7. Devram Sukaji Ingale,
R/o Shiv Colony, Faizpur,
Tq.Yawal, Dist.Jalgaon 425503.
8. Bhaskar Namdeo Nehete,
R/o Hambardi-Kainpul,
Tq.Yawal 425503.
9. Sau.Hemlata Prashant Dhande,
R/o Khanapur, Tq.Raver,
Dist.Jalgaon 425503.
10. Shekhar Vishnu Chaudhari,
R/o Savda, Tq.Raver,
Dist.Jalgaon 425 001.
11. Ravindra Chudaman Sarode,
R/o Rozoda, Tq.Raver,
Dist.Jalgaon 425503.
4 R.P.No. :7 & 8/2014
12. Swapnil Narayan Bendale,
R/o Nhavi, Tq.Yawal,
Dist.Jalgaon 425503. ...RESPONDENTS.
Coram : Mr.S.M.Shembole, Hon`ble Presiding Judicial
Member.
Mr.K.B.Gawali, Hon`ble Member.
Present : Adv.Shri.P.S.Gaikwad for revision petitioner, Respondent No.1 in person.
O R A L JUDGMENT ( Delivered on 11th April 2014 ) Per Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.
1. Challenge in both these revision petitions is the order dated 7.1.2014 passed by District Consumer Forum Jalgaon directing to issue NBW and issuance of separate NBW dated 9.1.2014 against the petitioners. As both these revision petitions are against the same order and point involved in these petitions are common, we have decided to dispose of both petitions by this common judgment.
2. The brief facts giving rise to these revision petitions are that:-
Both petitioners and respondent NO.3 to 9, 11 & 12 were directors of respondent No.2 Faizpur Merchant Co-operative society Ltd. Faizpur, Dist.Jalgaon. Respondent No.1 Sevakram had filed consumer complaint No.1233/2008 against the petitioners and other respondents claiming amount of deposits. Same complaint was partly allowed by District Consumer Forum vide judgment and order dated 20.12.2008 directing petitioners and other respondents to jointly and severally pay amount of deposits to the complainant. However, as the petitioners and other 5 R.P.No. :7 & 8/2014 directors of the society did not comply the said order of District Consumer Forum, respondent/complainant Sevakram filed execution petition No.87/09 before District Consumer Forum.
3. However, the petitioners and other directors of the society had challenged order of District Consumer Forum by filing Writ petition No.5223/09 before Hon'ble High Court Bench at Aurangabad. Same writ petition came to be allowed vide order dated 23.12.2010 and order passed by District Consumer Forum in consumer complaint came to be set aside. However, respondent/complainant Sevakram went to Supreme Court by filing Spl.Leave Petition bearing No.26900/2011 challenging the order of Hon'ble High Court. In the said petition Hon'ble Supreme Court pleased to issue interim order dated 13.8.2013 and 4.9.2013 and petitioner (Sevakram) was granted liberty to press for execution of order passed by District Consumer Forum.
4. By order dated 4.9.2013 Hon'ble Apex Court directed some of the respondents to make the payment of award which was passed by District Consumer Forum. Failing which District Consumer Forum was directed to start recovery proceedings against all the directors including petitioners in this matter by attachment of their moveable and immovable property. However, District Consumer Forum opened execution proceeding which was already filed U/s 25(3) as well as Section 27 of Consumer Protection Act and on the application of complainant/respondent Sevakram NBW was issued against respondents/directors including petitioner Shaikhar.
5. On executing NBW petitioner Shekhar and another were arrested and produced before the Forum by police. However, on the application of petitioner Shekhar and another they were released on bail. But subsequently as they remained absent on the fixed date i.e. 7.1.2014 6 R.P.No. :7 & 8/2014 their bail bonds are forfeited and again NBW came to be issued vide order dated 7.1.2014. Thereafter respondents Smt.Rajani, Shri.Umakant Dhande, Shri.Sharad Rane deposited part amount of award.
6. Thereafter respondent Sevakram by filing application in the execution petition submitted to issue NBW against petitioner as well as respondents. Therefore NWB was issued and by executing NBW some of the respondents were arrested and when produced before the Forum, they were remanded to judicial custody. Since petitioners Shekhar and Smt.Alka came to know about issuance of warrant against them they approached to this Commission by filing separate revision petitions and submitted to cancel NBW.
7. In response to the notice complainant/respondent No.1 Sevakram appeared and resisted the petitions. The crux in this matter is as to whether impugned order dated 7.1.2014 to issue NBW against petitioners is not just and legal.
8. We heard Shri.P.S.Gaikwad learned counsel appearing for revision petitioners and also heard respondent No.1 Sevakram and perused the copy of impugned order, copies of interim order passed by Hon'ble Apex Court and also copy of the order of Hon'ble Supreme Court which is passed in writ petition. So also copies of other documents.
9. It is submitted by Shri.P.S.Gaikwad learned counsel appearing for the petitioners that though the order of District Consumer Forum directing the directors of the society to pay amount of deposits to the complainant is set aside by Hon'ble High Court, it has illegally opened execution proceeding and passed the impugned order directing to issue NBW against directors of the credit society. Further he has submitted that though the Hon'ble Supreme Court directed to initiate recovery 7 R.P.No. :7 & 8/2014 proceedings against the directors of the society by attachment of their movable and immovable properties, the District Consumer Forum by opening execution proceedings U/s 27 of Consumer Protection Act directed to issue NBW against petitioners and other directors. According to Mr.P.S.Gaikwad though the Hon'ble Apex Court granted liberty to press for execution of order passed by District Consumer Forum so as to recover amount of deposits by attachment of movable and immovable property of directors, District Consumer Forum giving goby to the orders of Hon'ble High Court as well as Supreme Court opened the execution proceedings initiating criminal action U/s 27 of Consumer Protection Act.
10. It is further submitted that District Consumer Forum by initiating criminal proceedings U/s 27 of Consumer Protection Act directly issued NBW and when some of the directors produced before the Forum on executing NBW they were remanded to MCR refusing to grant bail. Therefore the petitioners apprehend that if they would appear before the Forum, they will be remanded to jail and therefore they directly approached to this Commission by filing revision petition as soon as they came to know about issuance of NBW against them. But we find little force in the submission of Mr.Gaikwad learned counsel for the petitioners. Firstly because though the Hon'ble High Court set aside the judgment and order of the District Consumer Forum , same is challenged by complainant/respondent Sevakram by Spl.Leave Petition before Hon'ble Apex Court. When in the S.L.P. Hon'ble Apex Court granted liberty to the complainant to press for execution of the order of District Consumer Forum , it cannot be accepted that District Consumer Forum has committed any error in opening execution proceedings.
11. Secondly, though the Hon'ble Apex Court by its interim order directed to start recovery proceedings by attachment of movable and 8 R.P.No. :7 & 8/2014 immovable property of the directors including petitioners, there is no specific direction of the Hon'ble Apex Court restraining the Forum initiating criminal action U/s 27 of Consumer Protection Act against directors including petitioners. On the contrary Hon'ble Apex Court granted liberty to the complainant to press for execution proceedings. It is settled law that execution proceedings U/s 25(3) and U/s 27 of Consumer Protection Act can be initiated simultaneously. Therefore only because Hon'ble Apex Court directed to start recovery proceeding by attachment of movable and immovable property of petitioners and other directors of the society, it cannot be accepted that no criminal proceeding U/s 27 can be initiated. The object of Section 27 of Consumer Protection Act is to compel erring party avoiding to comply order of Fora.
12. Moreover when undisputedly petitioner Shakhar has committed breach of bail bonds and remained absent after releasing him on bail, District Consumer Forum has rightly forfeited his bail bonds and rightly ordered to issue NBW against him.
13. As far as order to issue NBW against petitioner Alka is concerned, since she herself and other directors including petitioner Shekhar remained absent in the execution petition before District Consumer Forum and as such complainant Sevakram filed application dated 7.1.2014 for issuance of warrant, District Consumer Forum has rightly issued NBW. When petitioner Alka came to know about issuance of warrant against her and same is not executed she would have appeared before the Forum and would have moved District Consumer Forum for setting aside order. Only because District Consumer Forum rejected bail petition of some of the other directors cannot be ground to infer that impugned order to issue NBW against petitioner Alka is illegal. Therefore on any count the argument advanced by Shri.Gaikwad learned counsel for the petitioner cannot be sustained.
9 R.P.No. :7 & 8/201414. Thus, we find that District Consumer Forum has rightly passed the impugned order. We find no glaring error or infirmity in the impugned order. Hence no interference is warranted. Hence both the petitions are being devoid of any merit, deserve to be dismissed. Hence the following order.
O R D E R
1. Both the revision petitions No.7 & 8 of 2014 are dismissed.
2. No order as to cost.
3. Copies of the order be sent to both the parties.
K.B.Gawali S.M.Shembole, Member Presiding Judicial Member Mane