State Consumer Disputes Redressal Commission
Shri Nitin Brijalal Jaju vs Malan Pandurang Mali & Others on 16 October, 2008
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE FIRST APPEAL NO.921/2008 Date of Filing:-30/06/2008 IN RECOVERY APPLICATION No.116/2007 IN CONSUMER COMPLAINT NO.508/2005 Date of Order:-16/10/2008 DISTRICT CONSUMER FORUM, SOLAPUR Shri Nitin Brijalal Jaju, Residing at Subhash Nagar, Barshi, District-Solapur ... Appellant (Org.O.P.No.2) -Versus - 1) Malan Pandurang Mali, Residing at House No.2060, Dane Galli, Barshi, District-Solapur Respondent No.1 (Org. Complainant) 2) Krishna Grahak Sahakari Sanstha Limited, Barshi, District-Solapur 3) Sou.Gita Sanjay Upre, Residing at Mangalwar Peth, Near Namdeo Mandir, Barshi, District-Solapur 4) Shri Rajkumar Manikchand Jain, Residing at 44, Kasba Peth, Barshi, District-Solapur 5) Shri Deepak Rajaram Nandedkar, Residing at Koshiti Galli, Barshi, District-Solapur 6) Shri Madhusudan Narisingh Patange, Residing at Shivaji Nagar, Barshi, District-Solapur 7) Shri Ganesh Uttamrao Kadam, Residing at Sangar Galli, Barshi, District-Solapur 8) Shri Sanjay Dharmadhikari, Residing at Naikwadi, Barshi, District-Solapur 9) Shri Abhay Ramling Umbarchand, Residing at C/o Nitin B. Jaju, Subhash Nagar, Barshi, District-Solapur 10) Shri Sanjay Pralhad Upare, Residing at Mangalwar Peth, Near Namdeo Mandir, Barshi, District-Solapur 11) Shri Shyam Namdeo Londhe, Residing at C/o Nitin B. Jaju, Subhash Nagar, Barshi, District-Solapur 12) Sunita Vishwanath Shingnath, Residing at C/o Nitin B. Jaju, Subhash Nagar, Barshi, District-Solapur 13) Jarina Jainoddin Digraje, Residing at C/o Nitin B. Jaju, Subhash Nagar, Barshi, District-Solapur Respondent No.2 to 13 (Org. Opponents) Corum :- Mr.P.N.Kashalkar,Honble Presiding Judicial Member, Smt.S.P.Lale, Honble Member. Present :- Ms.Priti Walimbe,Adv. for the Appellant None for the Respondents O R D E R
Per Mr.P.N.Kashalkar,Honble Presiding Judicial Member
1) Being aggrieved by the order of sentence and fine passed by the District Forum, Solapur in Recovery Application No.116/2007 dated 7/6/2008 whereby J.D.No.2 has been sentenced to suffer simple imprisonment for two years and to pay fine of Rs.5,000/- for having not complied with the order passed by the District Forum, Solapur in Complaint No.508/2005, Shri Jaju/J.D.No.2 has filed this appeal U/s 27(A) of Consumer Protection Act.
2) Briefly, facts are as under :-
3) Malan Pandurang Mali had filed
Consumer Complaint No.508/2005 against Krishna Grahak Sahakari Sanstha Limited, Barshi, District-Solapur and against its 12 Directors. Shri Nitin Brijlal Jaju was the Chairman of the said credit society. Order came to be passed against Society and its Directors on 24/8/2006. That order was not complied with by the Krishna Grahak Sahakari Sanstha Limited, Barshi or its Chairman or Directors, so R.A.116/2007 was filed against the judgment debtors which included Shri Nitin Brijlal Jaju, the Chairman of the credit Society who was original O.P.No.2. On 7/6/2008, in the recovery proceeding Nitin Jaju appeared in a proceeding U/s 27 of Consumer Protection Act, the learned District Forum asked him some questions and when it was found that he himself or his society had not complied with the order passed by the District Forum regarding repayment of deposit of Rs.80,000/- with interest at the rate of 13% per annum, the Forum below passed impugned order sentencing Shri Nitin Jaju to two years simple imprisonment and also directed to pay fine of Rs.5,000/- and immediately sent the said person to jail to suffer the sentence the said Jaju through his father had filed this appeal U/s 27(A) of Consumer Protection Act,1986.
4) On 5/7/2008, we heard Ms.P.P.Walimbe, Adv. We issued notice before admission to the respondents and passed interim order directing the appellant to deposit half of the decreetal amount and to execute personal bond of Rs.80,000/- and to furnish surety bond in the like amount and directed that he be released forthwith from jail and his sentence was suspended for the time being. Certified copy of this order was taken by the appellant to the District Forum and to the jail authority. However, neither District Forum nor the jail authorities released Nitin Jaju from jail and till today he is languishing in jail. Jail authorities insisted that as per order of this Commission, Mr.Jaju must furnish personal bond and surety bond of Rs.80,000/- besides deposit of half of the decreetal amount. The Forum below did not pass any order in terms of interim order passed by this Commission on 5/7/2008 and further order passed by us on 22/7/2008.
5) Today Ms.Walimbe learned counsel for the appellant brought to our notice the fact that her client has paid whole of the decreetal amount to the complainant and therefore the complainant filed pursis dated 3/10/2008 before District Forum, Solapur and by that pursis, it was informed that the decree holder was not interested to prosecute recovery application and recovery application as such should be dismissed. The Forum below passed order on 3/10/2008 in terms of the said pursis and disposed of Recovery Application No.116/2007. However, what it pertinent to note is the fact that even after recovery proceeding were disposed of or filed having been fully satisfied in terms of payment made to the complainant by the judgment debtor, still the learned District Forum did not think it fit and proper to issue directions to the jail authority to release Nitin Jaju forthwith from jail. But the Forum below allegedly expressed its inability before the counsel for the judgment debtor(Nitin Jaju) that they were unable to do anything and consequential action will have to be taken by the State Commission where appeal filed on behalf of Nitin Jaju was pending.
6) We are really shocked to find that District Forum found itself helpless, once it sent Nitin Jaju to jail on sentencing him to suffer two imprisonment and fine of Rs.5,000/-. What is pertinent to note is the fact that provision of Sec.27 is brought on statute book by the Parliament to empower District Forums with the power of Judicial Magistrate First Class and power is so given to the District Forum so that it can effectively implement or ensure effective implementation of its own order by using coercive powers. Therefore, they have been empowered to perform powers of Judicial Magistrate First Class. Only purpose of this empowerment as given to the District Forum U/s 27 is to ensure 100% implementation of its own order. This empowerment or power confirmed U/s 27 to act as Judicial Magistrate First Class is designed to ensure 100% compliance of Forums final order. It would necessarily mean that when the order of the District Forum is complied with by the judgment debtor then the order of sending him to jail must be immediately recalled without any loss of time. So, power to recall its own order sentencing a person to jail along with awarding fine is a power inherent and implicit in the power given to the District Forum U/s 27 of Consumer Protection Act,1986. No District Forum is permitted to say that it has no power to procure release of the judgment debtor from jail even after he had fully complied with the award passed by the District Forum. We repeat and reiterate that powers U/s 27 of Consumer Protection Act,1986 given to the District Forum includes powers to recall its own order of sentence and fine if, the person concerned has comply with the order or award of the District Forum after he was sent to jail in exercise of power U/s 27 of Consumer Protection Act,1986.
7) In our case complainant informed District Forum by filing pursis dated 3/10/2008 that the order of the District Forum has been fully complied with since payment has been made by Nitin Jaju, the judgment debtor and since, there was settlement between them, she did not want to prosecute R.A.No116/2007 further and it should be disposed of and this pursis was acted upon by the District Forum and District Forum in turn passed order on 3/10/2008 disposed of the recovery application pending before it. But the District Forum erred in law in not directing jail authority to release appellant Nitin Jaju from jail, when award was fully complied with by the judgment debtor as per pursis filed by the complainant/Decree Holder. The District Forum therefore erred in law in not directing jail authority to forthwith release Nitin Jaju from jail since, he had fully complied with the award passed by the District Forum.
8) Sentence awarded U/s 27 by the District Forum to any judgment debtor is designed to get complied with District Forums final order passed in any consumer complaint. It is not a sentence awarded by the Magistrate exercising criminal jurisdiction under Cr.P.C. The order of Magistrate no doubt can not be reviewed or recalled by the same Magistrate and it can be got quashed only in appeal preferred before the Sessions Judge under the provisions of Cr.P.C. Unlike this our Forums are primarily exercising civil jurisdiction and only purpose of Forum being given power U/s 27 of sentence of imprisonment and fine is to ensure that its order are fully complied with by the concerned person and once it found that Forums order has been complied with the judgment debtor fully, then the Forum is duty bound to recall its order of sentence & fine and to direct jail authority to release such person from detention otherwise he will be facing double jeopardy. In the circumstances, we are inclined to allow this appeal and quash the order passed by the District Forum Solapur in R.A.No.116/2007.
O R D E R 1) Appeal is allowed. 2) The sentence and
fine imposed on Nitin Jaju is quashed and set aside. The District Forum is directed immediately to issue release warrant to the concerned jail Superintendent, in whose jail the appellant is presently lodged to serve of the sentence.
3) The fine paid by the appellant shall also be refunded back to him. 4) Copy of this order
be sent to jail Superintendent, Yerwada Jail, Pune who shall immediately release the appellant from jail unconditionally on receipt of this order.
( Smt.S.P.Lale ) (P.N.Kashalkar ) Member Presiding Judicial Member Malve/-