| SooperKanoon Citation | sooperkanoon.com/1111504 |
| Court | Andhra Pradesh State Consumer Disputes Redressal Commission SCDRC Hyderabad |
| Decided On | Apr-15-2009 |
| Case Number | E.A. No. 8 of 2008 |
| Judge | D. APPA RAO, PRESIDENT, THE HONOURABLE MRS. M. SHREESHA, MEMBER & THE HONOURABLE MR. K. SATYANAND, MEMBER |
| Appellant | Gotety Phanindra |
| Respondent | Durga Prasad Rao and Others |
D. Appa Rao, President:
Oral:
1. This is a petition filed under Section 27 of Consumer Protection against respondents to sentence them with imprisonment as well as impose fine for non-compliance of order of this Commission in C.D. 80/1997 dated 21.4.2006.
2. It is averred in the petition that he filed a complaint against the respondents pertaining to an agreement of sale dated 30.6.1992, for compensation and damages. By order dated 23.11.2001 this Commission directed the respondents to pay Rs. 6 lakh with interest @ 18% p.a., from 30.6.1992 till the date of payment together with costs of Rs. 5,000. Aggrieved by the said order R2 to R6 preferred F.A. No. 36/2002 before the National Commission which in turn dismissed it by order dated 12.4.2002. Thus the orders passed against R2 to R6 are confirmed. R1 preferred F.A. 806/2003 before the National Commission and the same was remanded for fresh consideration. on merits against R1 only. By order dated 21.4.2006 this Commission after considering the evidence placed on record, allowed the complaint directing R1 also to refund Rs. 6 lakh with interest @ 18% p.a., from 30.6.1992 till the date of payment by imposing joint and several liability. R1 did not prefer any appeal and the said order has become final. The said orders were not complied by any of the respondents. Therefore the petition is filed to punish the respondents by way of imprisonment and fine for non-compliance of the order.
3. When show cause notice was issued, R1 filed counter raising several pleas which he had already taken in the main case and that he did not enter into any agreement, and that for the money financed, he gave blank forms without filling up the spaces which were cleverly filled up by the complainant. He also took two blank agreements and five blank cheques. The matter was not compromised in O.S. No. 1460/1992 on the file of IInd Additional Judge, CCC, Hyderabad. The allegation that he had purchased the property at Rs. 200 per s.ft. is all misleading. In fact he had paid interest from July, 1992 to November, 1992. The complainant having received Rs. 7.20 lakh wanted to create problems in order to mislead his family members through his brother-in-law who happened to be a friend of complainants father-in-law. He did not sell the flat with any dishonest intention. The amount given by the complainant was total used and paid to R2 to R6 and rest of the amount for completion of the venture Shirdi Apartments. Ex. A2 is a fabricated document. The complainant was not a consumer, and therefore prayed that E.A. be dismissed.
4. R2 to R6 equally resisted the case. They alleged that they entered into a development agreement with R1 proprietor of M/s. Vasavi constructions wherein both of them agreed to share at 60% : 40% basis in the constructed area. Their share of 40% was not given by R1. They did not join the alleged agreement dated 30.6.1992 nor received any consideration. Even in P.P. No. 1/2002 this Commission has observed by its final order dated 26.4.2006 that the complainant had made payments to R1 and he in turn had failed to complete the construction and hand over the flats. No deficiency in service was attributed against them. They have nothing to do with the transaction. The Consumer Protection Act is not applicable to the instant case. Since they were no way concerned, E.A. is liable to be dismissed.
5. The points that arise for consideration are:
(i) Whether the complaint is entitled to execute the order of this Commission?
(ii) Whether this Commission can go behind the order and adjudicate the matter?
6. Admittedly R1 a developer entered into an agreement dated 30.11.1988 with R2 to R6 who are the owners for purchase of 1200 sq.yds. wherein they agreed to construct the flats. The complainant by virtue of agreement dated 1.6.1992 purchased two flats by paying consideration by way of bankers cheque. After enquiring into the matter this Commission by order dated 23.11.2001 directed the R1 to R6 to refund Rs. 6 lakh with interest @ 18% p.a., from 30.6.1992 till the date of payment together with costs of Rs. 5,000.
7. Aggrieved by the said order R2 to R6 preferred F.A. No. 36/2002 before the National Commission which in turn dismissed it by order dated 12.4.2002. Though further appeal is provided to the Supreme Court by way of SLP, R2 to R6 did not choose to prefer any appeal, as a result, the order has become final. R1 preferred F.A. No. 806/2003 before the National Commission and by order dated 25.10.2004 the order of this Commission was set-aside against him and the matter was remanded directing the matter to be disposed of afresh on merits. Accordingly this Commission by order dated 21.4.2006 allowed the complaint directing all the opposite parties to refund the amount which we have already adverted to. No appeal was preferred against the order of this Commission, and the same has become final.
8. Though the jurisdiction of this Commission to entertain the complaint was not raised either before this Commission or National Commission, for the first time, in these proceedings they allege that this Commission has no jurisdiction, and that the complainant is not a consumer, and that this Commission could not have determined the lis.
9. Learned Counsel for the respondents in order to impress that the plea of inherent lack of jurisdiction can be questioned at any stage, even if it was not raised earlier, taking inspiration from the decisions rendered under the provisions of CPC.
10. Before adverting to the said contention, it is beneficial to consider the theme of the Consumer Protection Act. The Consumer Protection Act is enacted to provide speedy and simple redressal to consumer dispute, for which a quasi-judicial machinery is set up at the District, State and Central levels unlike Civil Procedure Code where Civil Courts are constituted to determine the cases of civil nature by recoursing to an elaborate procedure under CPC. The quasi judicial bodies will observe the principle of natural justice, and have been empowered to give reliefs of a specific nature, and to award, wherever appropriate, compensation to consumers. Penalties for non-compliance of the orders given by the quasi-judicial bodies have also been provided.
However, a decree passed by the civil Court cannot be equated with an order passed by the Consumer Fora. The ambit and scope of the Consumer Protection Act and proceedings thereunder are altogether different. Under Order 21, CPC several rules were incorporated to agitate the question about the executability of a decree at various stages. The JDr in certain circumstances can question the executability of the decree that was passed against him.
11. The consumer is in fact described as âcomplainant. See Section 2(1)(b) of the Consumer Protection Act. Every violation of the order is construed as an offence and liable for punishment under Section 27 of Consumer Protection Act 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.
In other words the non-compliance is held to be an offence, punishable with imprisonment and fine. This is not the case with the judgments and decree passed by a Civil Court. They are to be executed as per the procedure contemplated under Order 21, CPC. The procedure adopted before the Civil Court cannot be imported while dealing the cases under the Consumer Protection Act. It is altogether different jurisprudence. There is no provision for execution of the order of the C.P. Act as understood in terms of CPC.
12. The Supreme Court has consistently held in a catena of decisions that decree passed without jurisdiction is nullity. A defect of jurisdiction whether it is pecuniary or territorial or whether it is in respect of the subject matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. Competence of a Court to try a case goes to the very root of the jurisdiction and when it is lacking, it is a case of inherent lack of jurisdiction and the same can be raised. Decree passed by Civil Court lacking inherent jurisdiction to entertain the suit in view of specific bar contained in special Act governing the case, held, would be a nullity and, therefore, objection regarding invalidity of such decree can be raised at any later stage including the stage of execution of the decree or any other collateral proceedings.
Kiran Singh v. Chaman Paswan reported in AIR 1954 SC 340; Hiralal Patni v. Sri Kali Nath reported in AIR 1962 SC 199; Sarwan Kumar and Anr. v. Madan Lal Aggarwal, reported in II (2003) SLT 1=103 (2003) DLT 20 (SC)=(2003) 4 SCC 147; D.G. Palekar v. A. Alagiriswami reported in AIR 1973 (1) SC 2391; Chiranjilal Shrilal Goenka v. Jasjit Singh and Others reported in (1993) 2 SCC 507; Balvant N. Viswamitra v. Yadav Sadashiv Mule, reported in V (2004) SLT 136=III (2004) CLT 243 (SC)=(2004) 8 SCC 706 and Rafique Bibi v. Sayed Waliuddin reported in V (2003) SLT 127=(2004) 1 SCC 287.
In Dhurandhar Prasad Singh v. Jai Prakash University, reported in V (2001) SLT 386=2001 (6) SCC 534, the Supreme Court while considering the provisions under Section 47, CPC observed that âthe exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus it is plain that Executing Court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and nullity, apart from the ground that decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing.
13. A perusal of above judgments would undoubtedly show that in regard to the decrees passed in civil suits, the Courts have consistently opined, that the defect or lack of jurisdiction could be raised at any stage of proceedings. More so, Section 47, CPC provides for a such a course. There is no quarrel as to the proposition laid down in those decisions. Evidently, the Code of Civil Procedure is an Act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature. Except the provisions of CPC for which C.P. Act extends vide Section13(4) the other provisions have no application. This we would consider a little later.
14. Laws have been used to protect consumers for centuries. These laws have drawn on a variety of legal forms, including criminal law, tort, and contract, to achieve their objectives. In addition to those laws that specify consumer protection as their primary concern, numerous other provisions have the effect of protecting the consumer, for example by streamlining the prosecution of fraud, protecting property, or facilitating litigation. As a result, the boundaries of consumer protection law are not easily drawn. See page 1 of Consumer Protection and the Criminal Law by Peter Cartwright published by Cambridge University Press. All through, we have been accustomed with the procedure handed over to us by English Courts.
In the Europe, after the industrial revolution the manufacturer and producers were having upper hand and their family resisted any consumer laws or any rights being given to the consumers. In the England, in the earlier stages when the consumer filed a complaint the manufacturer took the stand that there was no privity of contract. It was argued that contract if at all was with the seller and the consumer. This fallacy was exploded by Donoghue v. Stevenson. So also in regard to the other fields of law on banking, insurance, Railways, Post and Telegraphs, etc.
15. We do not intend to mention the circumstances under which the Consumer Protection Act came to be enacted. Suffice it to say in the year 1962 the then President of the United States John F. Kennedy declared the basic consumer rights viz., (1) right to safety (2) right to information (3) right to choice and (4) the right to representation, etc. Following the resolutions of United Nations, etc. the Consumer Protection Act was enacted by us in the year 1986. Therefore it was different format and probably flavour of US law. Therefore a different concept of law as well as procedure have been created in order to work out the implementation of provisions of Consumer Protection Act.
16. Coming to the aspect of applicability of certain provisions of CPC to Consumer Protection Act, Section 13(4) of Consumer Protection Act provides different procedure for adjudicating the complaint filed before the Consumer Fora. They shall have the same powers as are vested in a Civil Court under CPC while trying a suit in respect of the following matters, viz. :
(i) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;
(ii) the discovery and production of any document or other material object producible as evidence;
(iii) the reception of evidence on affidavits;
(iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;
(v) issuing of any commission for the examination of any witness, and
(vi) any other matter which may be prescribed.
Sub-section (5) makes it clear that the proceedings before the Forum shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and the Forum shall be deemed to be a Civil Court for the purposes of Section 195, and Chapter XXVI of the Code of Criminal Procedure.
So also the provisions of Rule 8 of Order I of the First Schedule to the Code of Civil Procedure, 1908 shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to a complaint or the order of the Forum thereon.
In the event of death of a complainant who is a consumer or of the opposite party against whom the complaint has been filed, the provisions of Order 22 of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall apply subject to the modification that every reference therein to the plaintiff and the defendant shall be construed as reference to a complainant or the opposite party, as the case may be.
17. The applicability of CPC, therefore, cannot be extended to all other provisions while determining the matters under the Consumer Protection Act. Therefore relying on the decisions under CPC which have no bearing or concern for the resolution of a dispute under the Consumer Protection Act does not hold good, more so, when revision, appeal and SLP before the Supreme Court are provided. In fact the respondents herein had tested the orders up to National Commission, and now they cannot turn round and contend that this Commission lacks jurisdiction.
18. We may mention herein that in regard to enforcement of orders before any of the Fora, State Commission and National Commission, the successful party can enforce it by clutching the jurisdiction either under Section 25 of Consumer Protection Act for issuance of certificate to the Dist. Collector for recovery of the amount or under Section 27 of CPA for punishing the person against whom the order was passed by the above said Consumer Fora. In other words, while enforcing the orders particularly under Section 27 of CPA it could be no more exercising the jurisdiction invoking the provisions of CPC as ordained under Order 21 of CPC. In fact the person against whom such orders were passed would in no way be termed as âjudgement debtors. It cannot be said to be an execution and nor could be enforced by referring to the procedure contemplated in CPC. Non-compliance of orders are punishable recoursing the provisions of Cr.P.C. by way of summary trial. It is a hotch- potch procedure not amenable to the provisions of CPC. It is a complete Code by itself and a constructive interpretation should be given in order to see that provisions of Section 27 of CPA are workable and not rendered otiose.
19. The Supreme Court in Regional Director, Employees State Insurance Corporation v. High Land Coffee Works of P.F. X. Saldanha and Sons reported in (1991) 3 SCC 617 held that the provisions of the Consumer Protection Act (CPA) have to be construed in favour of the consumer to achieve the purpose of enactment as it is a social, benefit oriented legislation. The primary duty of the Court while construing the provisions of such an Act is to adopt a constructive approach subject to that it should not do violence to the language of the provisions and is not contrary to attempted objection of the enactment.
20. In Venugopal v. Sub-Inspector of Police, Mathilakam, AIR 2000 Ker. 271 at 273 it was held Section 27 would naturally fall under the category of administrative penal law or public welfare offences, i.e., the Act was essentially a public welfare legislation. The provisions of the Act would be rendered otiose and the entire purpose of the statute might stand wholly frustrated if the final substantive orders of the redressal agencies were not enforced under pain of the penalty under Section 27. If those were to be relegated only to be enforced as decrees or orders of a Civil Court in the tortuous and tardy executory process therein with the hierarchy of appeals and the revisions under the Civil Procedure Code, then the consumer jurisdiction would again get enmeshed into the same labyrinth from which it was sought to be rescued by the Act.
21. In Rajendra Properties and Industries v. K.S. Nandwani, II (1999) CPJ 31 (NC) it was held that the proceedings under Section 27 of the Act are in the nature of execution proceedings of the basic order. It is settled law that the Executing Court cannot go behind the decree. The jurisdiction of the Court executing a decree must be determined with reference to and is circumscribed by the directions contained in the decree. It has no power to go behind it or question its legality or correctness. The xecuting Court must execute the decree as it stands and according to its terms. It is not permissible under law to go behind the basic order in the proceedings under Section 27 of the Act. The basic order cannot be amended, modified or varied in the proceedings under Section 27 of the Act.
22. In HSEB v. Pirthi Singh, II (1993) CPJ 715; Mahabir Singh Deswal v. Arora Handloom Store, III (1995) CPJ 71 (NC); R.B. Padhya v. Kabir Automobiles, II (1995) CPJ 169; Improvement Trust v. S.N. Bindal Engineer and Contractor, 1996 (1) CPR 618. It was held that Section 27 was thus the king-pin of the consumer jurisdiction which stands proudly apart from the ordinary and now notoriously the tardy civil process. Without the sanction of Sec. 27 perhaps the consumer jurisdiction would only be a paper-tiger lacking teeth altogether. That was one of the rare provisions in the civil jurisdiction where the penal sanction of imprisonment and fine in terms was provided for compliance with the orders of the Consumer Courts. The language employed was pre-emptory and the imposition of imprisonment and fine have nuances of criminal punishment for an offence. It was, however, plain that Sec. 27 did not create an offence stric tosensu, but was only a methodology of stringent penalty on pain of which the orders of the redressal agencies were to be complied with expeditiously. It appeared from the tenor of the section that the obligation of compliance with the orders of the redressal agencies lies immediately and squarely on the traders or a person against whom the same has been passed. The intent of the section was plain that the moment he slips in that mandatory duty, he automatically invites the rigour of the penalty under that provision. Consquently, the primal mode of enforcement and execution of orders by the redressal agencies was enforcing a mandatory compliance therewith by invoking the virtually automatic attraction of the penalty under Section 27 of the Act. Therefore a total compliance with substantive order of the redressal agency would be an extenuating factor for modifying the penal order passed under Section 27 of the Act.
23. In Union of India v. Chairman, Madras Provincial Consumer Association, II (1992) CPJ 524 (NC), it was held that the question of punishment arises only when there has been a disobedience of an order already passed and it was not open for the Forum to anticipate disobedience and to pass orders. If action was to be taken under Section 27 of the Act, the natural justice requires that the person sought to be proceeded against should be heard.
24. Coming to the facts when show cause notice was issued, the respondents instead of explaining as to why they did not comply the order, questioned the very validity of orders passed by this Commission against them though confirmed by National Commission on the very appeal preferred by the respondents, an untenable contention. The respondents are estopped from contending that the complaint is not amenable to the jurisdiction of this Commission or that the order is illegal. The contentions were taken to prolong the issue without any substance. The respondents could not give any reason much less a valid reason for not complying the orders. Therefore, we do not see any merits in the explanation or defence raised by the respondents in this regard.
25. In the circumstances, we reject the contentions raised by them and direct them to be present today for hearing in order to take further steps in the matter.
Ordered accordingly.