Anjali Gupta vs K.M.Enterprises

BRIEFLY the facts are that the complainant filed a complaint before this Commission for recovery of Rs. 99,000/- with interest and compensation. In the order dated 1.1.92 respondent Nos.1 & 2 were ordered to pay Rs. 1,47,141/- with interest @ 18% p.a. from the date of the order till the date of payment within a period of two months. It is further ordered that if they failed to make the payment of the amount within that period, action shall be taken against them u/Sec. 27 of the Consumer Protection Act. The respondents failed to make the said payment within the prescribed period. Consequently the complainant filed a complaint that proceedings be initiated against respondent Nos.1 & 2 under the Consumer Protection Act, because they failed to make the payment as directed by the Commission.

A show cause notice for 15.2.93 was issued to the respondents as to why action be not taken against them u/Sec. 27 of the Consumer Protection Act, on 8.1.93. On that date Shri H. N. Kumra did not appear. Consequently bailable warrants were issued against him. He appeared on 10.3.93. He filed reply dated 12.4,93. The complainant was given an opportunity to file evidence in support of the complaint and respondent an opportunity to file evidence in defence. Shri Kumra, respondent, in reply to the show cause notice stated that the KM. Enterprises consists of tliree partners namely Shri Manu Ramchandani, Shri Surinder Sarhadi and Shri H. N. Kumra. However, the show cause notice u/Sec. 27 had been issued only against him. It is further stated that an appeal had been filed against the order dated 1.10.92 before the National Commission which was pending. Consequently the proceedings u/Sec. 27 were liable to be stayed till the disposal of the appeal.

The learned Counsel for the respondent has vehemently argued, that the present complaint was premature as an appeal against the order of the State Commission was pending before the National Commissionand unless the appeal was decided the Commission has no jurisdiction to issue notice u/Sec. 27 of the Act. We have duly considered the argument but regret our inability to accept the same. It is well settled that the order of the Court is final, unless it is set aside by the Appellate Court. It is true that Section 24 of the Act provides that every order of the District Forum, the State Commission or the National Commission, if no appeal has been preferred against the said order, is final. However, it does not mean that as long as the appeal remains pending the complainant has no right to take steps for recovery of the decretal amount. It is relevant to mention that the respondents made an application for staying the recovery proceedings before the National Commission, which was rejected by it on 16.3.93. In view of the aforesaid discussion we reject the submission of the learned Counsel.

THE next contention of Mr. Juneja, the learned Counsel for the respondent, is that the complaint was not maintainable against Shri Kumra alone, it should have been filed against all the partners of the partnership firm. In view of the aforesaid circumstances he submits no action can be taken against Shri Kumra. In support of his contention he relies on a judgment of Allahabad High Court in Board of Directors, YMCA, Allahabad and Another v. R. H. Niblett, AIR 1957 Allahabad 290. We have considered the argument but do not find any substance therein as well. The complaint in the present case was filed against the firm and two partners of the firm, Shri H. N. Kumra and Shri M. Ramchandani. It is not necessary that in a complaint against a firm all the partners of the firm should be impleaded as parties. It is for the complainant to implead any one or more partners as parties. If the complainant impleaded only two partners in the complaint as parties it cannot be said that the complaint was bad for non joinder of necessary parties. The authority on which reliance has been placed by Mr. Juneja was not a suit against a partnership firm but against a unregistered body. Therefore, the observations in that case are not applicable to the facts of the present case.

IN the present complaint under Section 27, the complainant wanted the Commission to take action against Shri Kumra only and she scored out the name of Shri M. Ramchandani. Consequently notice was issued to Shri Kumra only. Section 27 of the Act provides that where a person fails to comply with any order of the State Commission he is punishable with imprisonment upto three years, but which shall not be less than one month or with fine upto Rs. 10,000/- but which shall not be less than Rs. 2,000/- or both. The respondent has not complied with the order of the Commission as yet though a period of more than 10 months has elapsed. After taking into consideration the circumstances of the case we are of the view that the complainant is guilty of the offence u/Sec. 27 of the Act and liable to be punished under it. For the aforesaid reasons we accept the complaint, convict Shri H. N. Kumra u/Sec. 27 of the Act and sentence him to undergo three months simple imprisonment and to pay a fine of Rs. 5,000/-, in case he fails to pay the fine he shall further undergo simple imprisonment for a period of one month. The file be consigned to record room. Complaint accepted. _______________