B.B.SHARMA vs J.K.ARORA

SINCE the above mentioned petitions, filed by the petitioners under Section 17(b) of the Consumer Protection Act, 1986 (hereinafter referred to ''the Act'') have common facts and raise common questions for consideration, the same with the consent of the parties have been heard together and are being disposed of by this common order.

THE facts, relevant for the disposal of the above mentioned petitions, lie in a narrow compass. Petitioner No. 2 is a Company, duly incorporated and registered under the Companies Act, 1956, having its registered office at 1207, Hemkunt, Rajendra Place, New Delhi. Petitioner No. 1 is the Managing Director of petitioner No. 2. THE respondents had made deposits with the petitioners. THE deposits, so made by the respondents, with the petitioners, were to carry interest at the agreed rate and after the date of maturity the same were payable by the petitioners to the respondents together with interest. Since the petitioners failed to pay the amount of deposit together with agreed rate of interest to the respondents, the respondents filed separate complaints against the petitioners before the concerned District Forum under Section 12 of the Act, with the prayer that the petitioners be directed to refund the amount of deposits together with interest, compensation and costs. THE complaints, so filed by the respondents, were allowed by the concerned District Forum and the petitioners were directed to pay the amount detailed in the order passed in each of the complaint filed by the respondents. The petitioners failed to comply with the order passed by the District Forum under Section 14 of the Act on a complaint filed by the respondents under Section 12 of the Act, as a result of which the respondents filed separate applications under Section 27 of the Act for taking action against the petitioners. The learned District Forum, vide orders, being impugned in the present proceedings, has sentenced petitioner No. 1, the Managing Director of petitioner No. 2 to imprisonment for one year in each of the above mentioned cases under Section 27 of the Act and it has been ordered by the District Forum that the sentence of imprisonment, so awarded, shall run consecutively i.e. one after the other.

Feeling aggrieved, the petitioners have filed the above mentioned petitions under Section 17(b) of the Act. Notice of the petitions was issued to the respondents and the respondents, practically in all the petitions, have entered appearance either in person or through their authorised representatives.

WE have heard the learned Counsel for the petitioners, the respondents, and the authorised representatives of the respondents, who had appeared before us, at length and have also carefully gone through the material on record. During the course of arguments it was stated by the learned Counsel for the petitioners that the punishment awarded to petitioner No. 1, in his capacity as Managing Director of petitioner No. 2, is penal in nature and as such as per settled law the petitioner should have been put to sufficient notice, which procedure unfortunately has not been followed by the concerned District Forum while awarding the punishment. It was further stated by him that the petitioner was produced before the District Forum from jail and as such had no occasion to have proper legal aid. It was stated by him that on this ground alone the petitions, filed by the petitioners, deserved to be allowed. Another limb of argument, advanced by the learned Counsel for the petitioners, was that the punishment awarded to petitioner No. 1, vide impugned orders, is in violation of settled principles of criminal jurisprudence, more particularly the provisions contained in Section 31, Section 4 and Section 235(2) of the Code of Criminal Procedure, 1973. The learned Counsel for the petitioners in support of the case of the petitioners, placed reliance on a number of decisions in cases Jolly George Varghese & Anr. v. The Bank of Cochin, AIR 1980 SC 470; Paramjit Singh v. Union of India & Ors., 1999 CTJ 570 (Karnataka High Court); Mrs. Jancy Joseph v. Union of India, & Ors., I (1999) CPJ 464; Ravi Kant & Anr. v. National Consumer Disputes Redressal Commission & Ors., I (1997) CPJ 271 (DB); Raj Kumar Sareen v. M/s. Skipper Towers (P) Ltd. & Ors., Execution Petition No. 20/95 decided by this Commission on 12.9.1996; and M/s. Bharat Overseas Const. Ltd. & Ors. v. Deepak Bansal & Ors., Appeal No. 119/97, decided by this Commission on 24.7.1998. It was stated by him that in the given facts and the legal position explained by him, the orders being impugned in the above mentioned petitions are liable to be quashed.

THE respondents/authorised repre-sentatives of the respondents, who were present, on the other hand, submitted that the petitions filed by the petitioners virtually were devoid of substance and the same being frivolous, deserved to be dismissed with exemplary costs. With one voice it was stated by all of them that the petitioners have defrauded the respondents by not paying back the amount deposited by them which was their life time saving and their hard earned money which they had received after their retirement from service. It is not in dispute that the proceedings under Section 27 of the Act visit the person found at fault with penal consequences and, therefore, if action is to be taken under the above said provisions of the Act, the principles of equity, fairplay and natural justice require that the person, sought to be proceeded against, should be given a fair and reasonable opportunity of being heard. In other words, a notice must be issued to him and his explanation should be heard before any conclusion is reached that an order of punishment and imposition of any sentence is called for. In our above views, we stand fortified by a decision of the National Commission in case Union of India v. Chairman, Madras Provincial Consumer Association, reported as II (1992) CPJ 524 (NC)=1986-1995 CONSUMER 1201 (NS). As already stated, the opportunity of being heard should be reasonable, otherwise the same is no ''opportunity'' in the eyes of law. On a perusal of the orders, being impugned in the present proceedings, it is apparent that the order simply states that petitioner No. 1 appeared from ail and failed to submit any satisfactory explanation. The same, in our opinion, in the given facts, cannot be treated or termed as a fair and reasonable opportunity, more particularly in view of the fact that the petitioner No. 1 was produced before the concerned District Forum from jail. The contention advanced by the learned Counsel for the petitioners that no proper legal aid was given to petitioner No. 1 before the imposition of sentence on him is also not without substance in the given facts because it is not in dispute that at the relevant time petitioner No. 1 was in jail and before the District Forum also he appeared from the jail. There is nothing on record to indicate as to whether any legal aid was availed of or was offered to petitioner No. 1, so as to enable him to present his case in a proper manner before the District Forum. In our opinion on the above grounds alone, the impugned orders are not tenable in the eyes of law and are liable to be quashed. In view of the position explained above, we do not consider it necessary to discuss the other points urged before us by the learned Counsel for the petitioners. For the above reasons, the petitions filed by the petitioners are allowed. The orders, being impugned in the present proceedings, are set aside and the matters are remanded back to the concerned District Forum with the directions that in the light of our above observations, the learned District Forum shall hear both the parties and thereafter shall take a fresh decision in the matter. In the peculiar facts and circumstances of the case the parties are left to bear their own costs.

NOTHING stated hereinabove shall amount to expression of any opinion on the merits of the matters, which shall be finally decided by the concerned District Forum after hearing both the parties and also after taking into consideration the material that may be placed by both the parties before the Foras.

THE petitions stand disposed of in the above terms. Petitions allowed.