M/S. Happy Home Constructions Pvt. Ltd., Rep. by Its Chairman and Managing Director and Another Vs. Badam Chandraiah - Court Judgment

Oral Order: (S. Bhujanga Rao, Member)

This appeal is directed against docket order dt.10.6.2013 in E.A.No.63/2011 in C.C.No.261/2010, on the file of Dist. Consumer Forum-III, Hyderabad.

The complainant filed C.C.No.261/2010 before the Dist. Consumer Forum–III, Hyderabad, seeking direction to the opposite party, to demarcate his plot, complete the development and deliver physical possession after obtaining the layout permission from the competent authority or in alternative refund an amount of Rs.2 lakhs together with interest @ 24 % p.a. from 12.1.2004, till the date of realization and also Rs.10,000/- with interest @ 24% p.a. collected towards registration charges, together with compensation and costs. The District Forum dismissed the complaint, stating that the complainant failed to show that the complaint filed by him is within the period of limitation of two years as envisaged under Sec. 24(A) of the Consumer Protection Act,1986. Aggrieved by the dismissal order of the District Forum, the complainant preferred F.A.No.1013/2010 before this Commission. This Commission observed that the opposite parties did not dispute that they have promised to develop and did not do so and hence the question of limitation would not arise and they being the developers, it would amount to unfair trade practice, on the part of the opposite parties and the period of limitation would commence from the date when they failed to fulfill their promise. This Commission further observed that the District Forum ought not to have dismissed the complaint on the ground of limitation, more so, when the opp.parties did not refute the allegations made by the complainant which suffices to come within the limitation. This Commission by its order dt.18.1.2011 allowed the appeal, setting aside the order of the District Forum, directing the respondents/opposite parties to demarcate the plot sold to the complainant under Ex.A5 and develop the venture as promised by them in brochure, Ex.A1 by providing black top roads, electricity, water storage tank, drainage, walkways, drip irrigation, plantations, swimming pool, Amphitheatre, restaurant, cottages, childrens play area, tennis court, pool table, beach volley ball obstacle golf course within six months from the date of receipt of the order and also directed to pay Rs.5000/- to the complainant.

The complainants filed E.A.No.63/2011, before the District Forum, to punish the opposite parties for non compliance of the above said order dt.18.1.2011 of this Commission. The District Forum directed the opposite party to file counter on 10.6.2013 as a last chance. But on that day, the opposite party did not file counter and has requested time for one week. The petitioner/complainant vehemently opposed the same and stated that it is a fit case, to issue warrant. The docket order dt.10.6.2013 of the District Forum is as follows:

“The Counter not filed. The counsel for the respondent filed a memo stating that the Respondent is not available today as he is out of station. This Honble Forum directed the Respondent to file counter today itself and in view of the said fact, the counsel for the Respondent has requested time for one(1) week to file counter. The counsel for the petitioner/complainant vehemently opposed and stated that is a fit case to issue warrant.

Accordingly, the Non-bailable warrant (NBW) is issued against the respondent.

Call on 27/06/2013”

Aggrieved by the said order, the opposite parties preferred this appeal contending that the order of the District Forum is illegal, improper and contrary to law and against the probabilities of the case. The appellants/opp.parties contended that the District Forum ought not to have issued non bailable warrants against the appellants/opp.parties, without formulating satisfaction about the non-compliance of the order under execution,0 by following the procedure contemplated under Sec.27 of Consumer Protection Act,1986. The District Forum committed error in issuing non bailable warrants, against the appellants/opposite parties, for not filing counter and no provision whatsoever enables the District Forum to issue non bailable warrants for not filing counter. The District Forum ought not to have issued non bailable warrants against the appellants/opposite parties, when they were duly represented and at any rate, the said punitive action could have been taken only in terms of Sec.27 of the Consumer Protection Act,1986. The appellants/opp.parties 1 and 2 finally prayed to set aside the impugned order of the District Forum.

We heard the counsel for both the parties and perused the material placed on record.

Now he point for consideration is whether the impugned order of the District Forum is vitiated for misappreciation of fact or law?

The factual matrix of this appeal is not in dispute. The proceedings under Sec.27 of the Consumer Protection Act is basically criminal proceedings calculated to achieve the object of bringing the erring opposite party to book, inspite of a specific order, directing him to comply with the order of the District Forum.

It is clear from the provisions of Sec.27 that when a petition is filed before it complaining against the opposite party against whom the District Forum passed an order in the Consumer Dispute did not comply with the order, it has to commence the proceedings resorting to the relevant provisions of Cr.P.C., dealing with the summary trial, which in turn refers to procedure prescribed for private summons cases. In respect of consumer cases, it should commence with the recording of the sworn statement of the complainant, like in the case of complaint, in a criminal court. Then it should be followed by the examination of the opposite party asking him, if he had any explanation, as to why he did not comply with the order of the District Forum. That should be done in the shape of examination of the accused. After recording his statement or version, then the District Forum has to proceed with the recording of the evidence though narrow and limited in scope, by virtue of the very nature of the proceedings and then it should also give ample opportunity to the opposite party, to cross examine the witness or evidence, otherwise adduced by the complainant. It should be followed by an examination of the respondent under Sec. 313 of Cr.P.C. The next step would be, to invite the opposite party, who is in position of the accused to tender his own evidence, in his defence, if he so desires. Then only the District Forum has to form an opinion as to the guilt or otherwise of the opposite party.

In the present case, as seen from the docket sheet maintained by the District Forum, the sworn statement of the petitioner/complainant was not recorded, as required under summary procedure, contemplated under Criminal Procedure Code. A show cause notice was issued to the appellants/opposite parties 1 and 2 and later the matter is being posted for the counter of the opposite parties, which is not contemplated under summary proceedings. The impugned order does not show that NBW was issued against appellants/opposite parties, to their presence, for their examination, by taking coercive measures contemplated under Sec.205 of Cr.P.C. Therefore, there can be no doubt that the District Forum committed the procedural error for issuing the NBW for not filing counter by appellants/respondents/opp.parties. Under these circumstances, the impugned order is not sustainable under law and is liable to be set aside.

In the result, the appeal is allowed. The impugned order of the District Forum issuing NBWs against the appellants is set aside, however, on payment of costs of Rs.10,000/- to the respondent/complainant. The District Forum is directed to proceed with the matter by following the procedure prescribed for private summons cases in Cr.P.C. as mentioned above and dispose of the EA, as early as possible, preferably within a period of two months.