State Consumer Disputes Redressal Commission
Naveen Wadhwa vs Anil Kumar Ajmani on 16 January, 2008
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986) Date of decision: 16.01.2008 Appeal No.08/38 (Arising from the order dated 10.01.2008 passed by District Forum(West) Janak Puri, New Delhi in Case No.M/6664/04/434/02, No.M/6664/04/435/02, No.M/6664/04/436/02) Sh. Naveen Wadhwa Appellant Proprietor, through Mr. Yog Verdhan, M/s. Win International, advocate. 21/11, Second Floor, West Patel Nagar, New Delhi Versus 1. Sh. Anil Kumar Ajmani Respondents 2/67, Single Storey, Ramesh Nagar, New Delhi. 2. Ms. Kamaljeet Kaur 58-A, AB Block, Ramesh Nagar, New Delhi. 3. Sh. Amrik Singh 58-A, AB Block, Ramesh Nagar, New Delhi. CORAM: Justice J.D. Kapoor, ... Presidents. Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor, President(ORAL)
1. There is no need to issue notice of the appeal as the respondent has no role to pay to file reply because what is challenged is the discretion exercised by the District Forum under Section 27 of the Consumer Protection Act 1986.
2. The appellant has been sentenced in three execution petition to undergo simple imprisonment for a period of one year each and pay fine of Rs.10,000/- each and in default to further undergo simple imprisonment for a period of three months, for having failed to comply with the order passed by the District Forum, directing him to pay Rs.3,94,785/- to the respondents. Both the sentences have been ordered to run consecutively.
3. The grievance of the appellant is that the District Forum passed these orders on the oral statement and the oral show cause notice. Section 27 of the Consumer Protection Act 1986, prescribes penalties for failure or omission by any trader or person against whom complaint is made, to comply any order made by the District Forum and for that purpose by the State Commission and National Commission. According to this provision, such a person shall be punishable for 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. In order to appreciate the import of this provisions it needs to be reproduced and is as under:
Section 27: Penalties:
(1) Where a trade or a person against whom a complaint is made 2[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 2[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, the District Forum or the State Commission or the National Commission, as the case may, 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.
(3) All offences under this Act may be tried summarily by the District Forum or the State Commission or the National Commission, as the case may be."
4. Bare perusal of this provisions shows the only requirement to invoke this provision is that there should be an order passed by the District Forum, State Commission or National Commission as the case may be against any trader or a person against whom a complaint has been filed or any order against any person and if such a person fails or omits to comply with such order, he has to suffer penalty prescribed under section 27 of the Act.
5. In the instant case, appellant has suffered the penalty by way of impugned order for his failure to comply with the order passed by the District Forum, directing it to pay Rs.3,94,785/- in three different cases. Though there is no requirement of any show cause notice prescribed by Section 27 of the Act, to be given to a party as on the point of sentence as it is discretion of the District Forum, State Commission or National Commission to award sentence as in the facts and circumstances of the case, yet, District Forum has given show cause notice to the appellant and considered the reply in detail.
6. Since the appellant has failed to produce before us any order passed by the State Commission or National Commission whereby the orders passed by the District Forum have been set aside nor he has produced any order whereby operation of the order passed by the District Forum has been stayed, the only question that calls for determination in these proceedings is as to the quantum of sentence awarded by the District Forum.
7. We have in case after case observed that the proceedings under Section 27 of the Act are independent proceedings and have no relation with the recovery proceedings as contemplated by Section 25 of the Act. Through proceedings under Section 27 of the Act the payment ordered by the District Forum against any trader cannot be recovered as it prescribes only imprisonment and fine upto Rs.10,000/-. As regards the recovery of the amount due from any person, Section 25 alone is invokable, which prescribes as under:
Section 25: Enforcement of orders by the Forum, the State Commission or the National Commission.
(1) Where an interim order made under his Act, is not complied with the District Forum or the State Commission or the National Commission, as the case may be, may order the property of the person, not complying with such order to be attached.
(2) No attachment made under sub-section (1) shall remain in force for more than three months at the end of which, if the non-compliance continues, the property attached may be sold and out of the proceeds thereof, the District Forum, or the State Commission or the National Commission may award such damages as it thinks fit to the complainant and shall pay the balance, if any, to the party entitled thereto.
(3) Where any amount is 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 Commission 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".
8. As to the quantum of imprisonment and sentence, the consumer does not play any role. It is discretion of the District Forum, State Commission or National Commission to award either sentence of imprisonment or fine or both, which depends upon the facts of the case or may be the quantum of amount which is due from the trader or person against whom order has been passed.
9. We have perused the impugned order and find that on the point of sentence the appellant had pleaded that the appellant in the recent past had undergone heart surgery and that one of his sons is still dependant upon him and so much so the complainant filed statement of account of the appellant and in that too the amount found was Rs.2,23,948.56/- and on verification the said statement was found to be correct. Since the recovery proceedings are already pending against the appellant, the sentence awarded to the appellant appears to be harsh, in view of his ailing health and family obligation. It should be the endeavour of every court or for that purpose quasi judicial authorities like District Forum to see that while exercising discretion, the person should not suffer such hardship that may add to his miseries.
10. Since the appellant expects some relief as he has filed appeal before the National Commission and since the appellant has undergone heart surgery and one of his sons is still dependant upon him and the transaction emerges from the share transaction and the appellant was only sub broker, we deem that minimum sentence as prescribed under Section 27 of the Act i.e. one month and fine of Rs.2,000/-, in default 15 days imprisonment in each case shall meet the ends of justice. Sentence of imprisonment has to run consecutively.
11. In the result, the appeal is partly allowed by modifying the impugned order to the extent that the appellant shall surrender himself before District Forum for undergoing the aforesaid punishment.
12. Bank Guarantee/FDR, if any, furnished by the appellant be returned forthwith.
13. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
14. Copy of the order be sent to President of all the District Fora.
Announced today on 16th day of January 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri