State Consumer Disputes Redressal Commission
Mrs.Surekha V.Zambre Partner Of ... vs Shree Sai Apartment Chs.Ltd.Through ... on 28 January, 2020
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Revision Petition no.RP/19/260
Mrs.Surekha Vinayak Zambre
Partner of M/s.Kashinath Construction Co.
Residing at -102, Rangshree Society
Veer Sawarkar Marg, Near 3 Petrol Pump
Thane (West) 400 602 ..... Revision Petitioner
Versus
1.Shree Sai Apartments Co-op.Hsg.Society Ltd.
Plot no.C-19 and 20, Sector 9
Diva Village, Airoli, Navi Mumbai 400 708
Through its Hon.Secretary
Mr.Suryakant Sayaji Jadhav
2.Mr.Ganesh Narayan Patil
3.Smt.Lilabai Ramdas Patil
4.Smt.Ranjit Ramdas Patil
5.Sanjivani Ramdas Patil
6.Smt.Aruna Sadanand Patil
All nos.2 to 6 are R/at.Ram Raj, Diwe Village
Sector 9, Airoli, Navi Mumbai 400 708
7. M/s.Kashinath Construction Co.
Partnership firm having address
At 201, Shree Sai Dutt Guru Apartment
Karvalho Nagar, Thane (West) 400 606
And Also having address at -
323 to 329, Arejna Corner
Plot no.71, Sector 17, Vashi
Navi Mumbai 400 606
8. Narendra B.Bora
Partner of M/s.Kashinath Construction Co.
At 201, Shree Sai Dutt Guru Apartment
Karvalho Nagar, Thane (West) 400 606 .......Respondents
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BEFORE: Justice A.P.Bhangale, President
Dr.S.K.Kakade, Member
ORAL ORDER
Per Hon'ble Justice A.P.Bhangale, President
1. Mr.Nitin Patil -Advocate for revision petitioner. Heard. Perused the final order passed in consumer complaint no.143/2008 decided on 22/05/2019 by the Learned Additional Consumer Disputes Redressal Forum, Thane, whereby the opponents were directed to obtain occupancy permission from the Municipal Corporation, Navi Mumbai and to convey the building in favour of the complainant society. Complainants were also entitled to compensation in the sum of Rs.50,000/- and litigation costs in the sum of Rs.5000/- was also awarded. The final order itself made it clear that if within time i.e. within two months if final order is not complied with by the opponents, the opponents will pay interest @ 12% p.a. to the complainant on the amount due. This order was in execution before the Learned Consumer Forum below. Surprisingly, Learned Forum went out of the scope of the final order to impose penalty in the sum of Rs.5000/- daily against the accused nos.7 & 8 for failure to obtain occupancy permission.
2. Learned Advocate for revision petitioner has grievance that when final order was in execution, Learned District Forum ought to have followed the procedure as contemplated under the law in view of the proceedings u/sec.27 of Consumer Protection Act, 1986. We have made it clear by many orders passed by this Commission that in a proceeding under section 27 of Consumer Protection Act, 1986, once the accused are summoned and appeared before the executing Forum, their defence has to be heard, since the final order which is passed in the consumer dispute has attained finality and judicial notice thereof needs to be taken by the executing Forum. Therefore, what is necessary is to record a defence statement of the accused as to why the final order is not obeyed. In case the accused has any acceptable and reasonable excuse for not to 2 comply with the final order, the Executing Forum may consider his acquittal from the offence punishable u/sec.27 of Consumer Protection Act, 1986. In case Executing Forum is satisfied that the accused has contravened the final order by deliberate disregard or intentionally, in such case the accused needs to be punished as contemplated u/sec.27 of Consumer Protection Act, 1986.
3. In order to conduct the execution proceedings, the complainant need not be put in the witness box as order has attained finality of which judicial notice is taken. However, accused defending the proceedings needs to be heard by giving them every opportunity to explain as to why the final order is not yet complied with. For that purpose, the Executing Forum shall follow the procedure by following of obedience to the principles of natural justice, which is heart and soul of the procedure contemplated under the law, whether it is procedure in summons trial or summary trial, as the case may be.
4. The procedure contemplated under the provisions of Consumer Protection Act, 1986 in view of section 27(2) operates with non obstante clause, as under:
"(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).
5. That being so, the Executing Fora ought to consider the defence statement made before it by the accused and to record a judicial finding after following the principles of natural justice as to whether there is deliberate disobedience or non 3 compliance of the final order. Learned Forum below appears to have ignored this procedure and straightway imposed daily penalty upon the accused without following the aforesaid procedure. We therefore set aside the impugned order and direct the Learned District Forum to follow the procedure as contemplated under the law and as indicated by us as aforesaid. Revision petition is allowed accordingly. Copies of the order be furnished to the parties.
Pronounced on 28th January 2020.
[Justice A.P.Bhangale] President [Dr.S.K.Kakade] Member Ms 4