State Consumer Disputes Redressal Commission
Shri Ashish Kumar Dutta vs Smt. Ratna Mitra on 21 November, 2008
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. FA/08/352 DATE OF FILING:05.9.2008 DATE OF FINAL ORDER: 21.11.2008 PETITIONER/APPELLANT Shri Ashish Kumar Dutta S/o. Late Biswanath Dutta 66/1, Atindra Mukherjee Lane P.S. Shibpur, District - Howrah RESPONDENT/OPPOSITE PARTY Smt. Ratna Mitra W/o Atindra Prasad Mitra 1st Floor, Flat at holding No.37/1 Dharmadas Kundu Lane P.O. & P.S. Shibpur, District - Howrah BEFORE : HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT MEMBER : Mr. S. COARI MEMBER : MRS. S. MAJUMDER FOR THE PETITIONER/APPELLANT: Mr. S. Banerjee, Advocate FOR THE RESPONDENT/O.P. : Mr. M. Bandyopadhyay, Advocate : O R D E R :
HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT This appeal was filed u/s.27A of the Consumer Protection Act against the order dated 08.8.2008 as also the Execution Case No.44/2004 pending before the District Consumer Disputes Redressal Forum, Howrah.
Facts relevant for the disposal of the present appeal are that HDF Case No.248 of 2000 was decided by judgment dated 16.7.2002 whereby the District Consumer Disputes Redressal Forum, Howrah allowed the case in part on contest against OP1 and exparte against OP2 with costs. The OPs were directed to execute and register a sale deed in favour of the complainant in respect of the case flat at the cost of the complainant within one month from the date of the order. The OPs were also directed to pay a compensation of Rs.50,000/- only to the complainant for causing her harassment and mental agony for denying her lawful claim for more than four years. The OPs were also directed to pay a consolidated cost of Rs.2,000/- to the complainant for the case. Payments were directed to made within one month from the date of delivery of order.
When the OPs did not comply, the complainant initiated the Execution Case No.44/2004 u/s.27 of the Consumer Protection Act.
After notices were served both the OPs entered appearance. At one stage the OP1 satisfied the award and thereupon on the prayer of both parties execution case against the OP1 was disposed of on satisfaction. OP2 raised various contentions and the disposal of the Execution Case was delayed. By order dated 08.7.08 the Forum recorded that the OP2 Shri Ashish Kr. Dutta was found guilty for the offence punishable u/s.27 of the Consumer Protection Act, 1986 and he was sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.10,000/- in default whereof to suffer rigorous imprisonment for six months. If the amount of fine is realized the same was to be paid to the complainant towards compensation. Thereafter on 08.8.08 on an application filed by OP2 Shri Ashish Kr. Dutta praying for bail on the ground of his preferring an appeal against order dated 08.7.08 u/s.27 and dated 08.7.08 u/s.25(3) of the C.P. Act, 1986, the OP2 was granted interim bail subject to confirmation by the State Commission and OP2 was released on furnishing P.R. Bond of Rs.10,000/-.
This appeal was filed in the form of an application u/s.27A of the Consumer Protection Act and in the prayer portion the Appellant prayed for stopping the Execution Proceeding being Execution Case No.44/2004 arising out of HDF Case NO.248/2008 and also for setting aside the order dated 08.8.08 passed by the District Forum, Howrah. But the date of the order sought to be challenged was originally typed as 08.7.08 which has been corrected by hand as 08.8.08. Similar correction was incorporated in the Cause Title of the appeal as also in the paragraph 10 of the appeal petition.
The Ld. Advocate for the Appellant argued that the application in the Execution Proceeding was filed u/s.27 of the C.P. Act but no notice u/s.27 was ever served upon the appellant and the only notice served upon him was u/s.25 of the Act. It is further contended that the notice u/s.27 meant for service upon the appellant was actually served on his Ld. Advocate which did not amount to a proper service and, therefore, there was no proper opportunity granted to the appellant to show cause against the said notice or in fact against any notice u/s.27 of the Act.
It is also stated that the order dated 08.7.08 was a composite order u/s.25 & 27 of the Act and, therefore, in the facts of the case the final order passed the Execution Proceeding is bad in law as the appellant was not given any proper opportunity to deal with the application u/s.27.
The Ld. Advocate for the Respondent denied the allegations made by the Appellant and contended that the Appellant intentionally did not satisfy the order passed in the original proceeding by the Forum below and upon availing all opportunities intentionally has filed the present appeal only is to delay the proceeding as far as possible on frivolous technical non-existent ground.
We have considered the materials on record and particularly the original records of the Execution Case maintained by the Forum below. From the records it is available that on 10.5.07 the appellant filed his petition showing cause and in paragraph 6 thereof it categorically dealt with the application u/s.27 of the Act. Therefore, all the contentions of the appellant that he was deprived of any opportunity to show cause against the application u/s.27 or he suffered from any misconception as regards the provision of law under which the application was filed initiating the Execution Proceeding, cannot be accepted. Moreover, the appellant having appeared in the proceeding through Ld. Advocate and having availed of all opportunities to contest the proceeding, cannot take the objection of service of no notice upon him.
With regard to the allegation relating to notice u/s.25 of the Act we find that in fact a notice u/s.27 was issued in the name of the appellant and the same was accepted by his Ld. Advocate. In the fact of the case when we find that the appellant contested the proceeding at every possible stage making out his defences and there was no misconception as regards the provision of law under which the original application was filed for initiating the Execution Proceeding, the contentions on alleged irregularities cannot be accepted as there was apparently no failure of justice or deprivation of opportunity as against the appellant.
In above view of the findings without entering into the technical objection that the order dated 08.7.08 was not challenged, we have dealt with the matter on merit as argued by the Ld. Advocate for the appellant and thereupon we have decided as above. It is true that the order dated 08.8.08 could not be challenged by the appellant as nothing was decided by the said order and the same was passed merely granting interim bail to the appellant and, therefore, there could have been no occasion for the appellant to challenge the same. The order dated 08.7.08 was an order by which findings were arrived at against the appellant and we have considered the merit of the same hereinabove.
In above view of the findings we do not find any ground for interference with the impugned order. With regard to the Execution Case no specific argument has been advanced justifying consideration by us as regards its maintainability and, therefore, the present appeal is dismissed and there will be no order as to costs.
(S. Majumder) (S. Coari) (Justice A. Chakrabarti) MEMBER(L) MEMBER PRESIDENT