FIELD MARSHAL K.M.CARIAPPA FOUNDATION vs SUB.MAJ.S.R.PRASANNA KUMAR

THIS is a revision petition filed under Section 17(1)(b) of the Consumer Protection Act, 1986, challenging the order dated 16.7.1999 passed by the II Addl. Dist. Forum, Bangalore Urban District, in Execution Case No. 39/98.

THE necessary facts for the purpose of the disposal of the revision petition are these : THE respondent/complainant filed a complaint in No. 1990/96 on the file of the II Addl. Dist. Forum, Bangalore Urban Dist. and got an order dated 24.6.1998 for refund of a sum of Rs. 4,320/- with interest @ 15% p.a. from the date of complaint to the date of payment with a further direction that the said payment should be made within 6 weeks from the receipt of the copy of the judgment. The petitioner filed Appeal No. 636/98 before this Commission and as per the direction of the Commission a sum of Rs. 2,848/- was paid to the respondent on 26.11.1998 and obtained an interim order regarding the balance amount. Ultimately, the said appeal was dismissed on 22.1.1999 and the petitioner was directed to pay the balance amount within 2 months.

When the appeal was pending before this Commission, the respondent-decree holder initiated proceedings under Section 27 of the Act against the petitioner/judgment debtor. In the said execution case, show-cause notice was issued to the judgment debtor and he has filed his reply. He has also brought to the notice of the District Forum about the judgment of the High Court dated 18.12.1998 in Writ Petition No. 10363 of 1994 striking down the proviso to Section 27 of the Act. However, the District Forum overruled the objection of the petitioner/judgment debtor and decided to proceed with the execution case. As mentioned above, the said action of the District Forum has been questioned in this Revision Petition.

WE heard the learned Advocate for the petitioner Mr. K. Anantharaman and the respondent was present in person and he made his submission. According to the learned Advocate for the petitioner, the District Forum has committed serious error in overlooking the decision of the High Court of Karnataka in which the proviso to Section 27 of the Consumer Protection Act was struck down. According to him, the District Forum was not justified in placing reliance on the decision of the Kerala High Court reported in 1998 CCJ 727 which in turn had relied on the decision of the Supreme Court reported in 1996 (1) SC which has no relevance to the facts of the present case. He submitted that as long as the proviso to Section 27 has been struck down and which is not in the Statute, the District Forum was not justified in proceeding with the application filed under Section 27 of the Act. However, Mr. Prasanna Kumar-respondent submitted before us that the District Forum is executing a valid order passed by it. He has pointed out that this Commission, while dismissing the appeal, has directed that the balance amount should be paid to him within 2 months and since the said amount has not been paid within that period, he has approached the District Forum with an application under Section 27 of the Act and the District Forum is well within its jurisdiction in entertaining and proceeding with the said matter.

SINCE the proviso to Section 27 has been struck down by the High Court by an order dated 18.12.1998 in Writ Petition No. 10363/1994, the District Forum cannot issue warrant of arrest and proceed with the case. In this connection, it will be better to extract paragraphs 8 and 9 of the judgment in the said Writ Petition, which read as follows : "8. It follows, therefore, that where a trader or a person omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, the complainant in that event can file a complaint before such Forum or Commission and if despite opportunity, the trader or a person fails or omits to comply with the order passed under the Act, the appropriate Forum or the Commission can direct the filing of the complaint in a Court of competent jurisdiction. Upon filing of such complaint, the procedure prescribed under the Code of Criminal Procedure has to be followed and on proof of the allegations, the accused shall be convicted for the offence and sentenced to the penalties as contemplated under Section 27 of the Act. The provisions of Section 27 are not distinct than Section 25 of the Act. Section 27 in effect and in essence is a provision beneficial to the trader, who can avoid the conviction and sentence by complying the order of the Forum or the State and the National Commissions when complained of by the consumer. It is only upon his failure and omission, that a trader shall be deemed to be guilty of the commission of an offence triable by a ordinary Magistrate in accordance with the procedure prescribed under the Code of Criminal Procedure. 9. We are, therefore, of the opinion that the proviso to Section 27 being violative of the fundamental rights as enshrined under Articles 20 and 21 of the Constitution of India is liable to be quashed. We are further of the opinion that but for the proviso, there is no unconstitutionality in the main Section. It is, therefore, held that the offences created and penalties provided under Section 27 can be tried and imposed only in accordance with the observations made hereinabove by filing a complaint before a Criminal Court in accordance with the procedure prescribed in that behalf."

In view of the said judgment, we are of the opinion that as long as the proviso to Section 27 of the Act has been struck down by the High Court, the District Forum was not justified in proceeding further under the said proviso. In fact, as per the said decision, the District Forum can direct the parties to file a complaint before a competent Criminal Court. Hence, we set aside the order of issuing arrest warrant of the petitioner/judgment debtor and direct the District Forum to proceed in accordance with the judgment rendered by the High Court in Writ Petition No. 10363/1994 dated 18.12.1998. There will be no order as to costs in this Revision Petition. Revision Petition disposed of.