GAJANAN ALVE vs Federal Bank Ltd.

THIS appeal is directed against the order dated 10.9.1997 passed by the Consumer Disputes Redressal Forum, Goa. In the Appeal Memorandum as also the copy of the order it has been mentioned that this order has been passed in Execution Application No. 15 of 1996. On perusal of records of District Forum, it is verified that the order is passed in Ex. 14 of 1996.

THE applicant before the District Forum in this execution application was the opposite party in Complaint No. 128/1993. THE complaint was filed for recovery of a sum of Rs. 97,000/- from the opposite party. THE District Forum by its order dated 20.10.1993 directed that a sum of Rs. 5,000/- should be paid with interest @ 18% per annum. That order was challenged by the complainants and opposite party before this Commission in Appeals Nos. 120/1993 and 119/ 1993. This Commission by its judgment dated 30.9.1994 allowed the Complaint No. 128/1993 and held that complainant was entitled for a sum of Rs. 80,000/- towards the value of gold and compensation of Rs. 5,000/- in addition to cost of Rs. 500/-. THE opposite party challenged the order of this Commission in Revision Petition 730/1994 before the National Commission and by its order dated 17.1.1996, the National Commission modified the amount payable to the complainant towards value of gold ornaments from Rs. 80,000/- to Rs. 60,000/- and after adjusting the dues of Bank Rs. 51,283/-, only the balance amount of Rs.8,717/- shall be payable to the complainant besides Rs. 5,000/- as compensation. The opposite party filed a petition before the District Forum requesting it is necessary that decree of the Hon. Forum be sent to Civil Court at Margao for execution and recovery of the amount of Rs. 29,033/- together with interest from 7.2.1995. It pleaded before the District Forum that pursuant to an interim order of National Commission, it had paid to the complainant a sum of Rs. 42,750/-and after adjusting the amount payable to complainant as per the order of National Commission, the complainant has to return a sum of Rs. 29,033/-. Therefore, it sought for prayer of transfer of decree to the Civil Court. It is during these proceedings, the District Forum has passed the impugned order holding that the complainant was liable to pay back a sum of Rs. 29,033/- and disallowed the prayer made for award of interest. It is being aggrieved by this order, the-complainant has preferred the present appeal.

It is conceded by the learned Advocate for respondent (opposite party) in complaint that till date on which he moved the application, there was no order of any Forum directing the complainant to pay back the amount in question to his client. So long as there is no order of any Forum directing the complainant to return back the amount paid to him, it is clear that there is no scope to the opposite party to move the District Forum for execution of decree under Section 25 of Act because there is no decree or order in his favour in that regard. If that be so, there is no scope for the opposite party to seek transfer of the decree and therefore, the execution application filed by opposite party should have been rejected on this very ground.

WE will proceed to examine the correctness of order of District Forum directing the complainant to pay the amount in question to- the opposite party construing the execution application filed by him, as an application under Section 144 of Civil Procedure Code, it may be noticed by virtue of Section 13(4) of Act, the District Forum under the provision of the Consumer Protection Act has certain powers of Civil Code only as mentioned in that section and all the provisions of Civil Procedure Code are not made applicable to the proceedings under the provision of Act. This Commission in Miscellaneous Application No. 3/1997 disposed on 2.6.1998 has held that petition under Section 144 of Civil Procedure Code before the Forum is not maintainable. The National Commission has held in its decision in Ravikant v. Kailash Chand, reported in 1986-1996 National Commission and Supreme Court on Consumer Cases, Part II page 3055 that power under Order 41, Rule 19 Consumer Protection Act is not one of the powers incorporated in Clauses 1 to 6 of Section 13(4) of the Act. Again the National Commission has held that cross objection Order 41, Rule 22, Civil Procedure Code cannot be maintained in an appeal under Consumer Protection Act as decided in Telecom District Manager v. Dr. Bishnu Charan Mishra, reported in 1997 CCJ 1085. Following the same analogy and on the same logic it should necessarily be held that under the provisions of Act, the Forum has no powers for restitution as provided under Section 144 of Code of Civil Procedure. Therefore, it is clear that there was no scope to the District Forum to give direction to the complainant to refund an amount as it has ordered. WE need not concern ourselves in these proceedings as to what other remedies are available. The execution petition is not maintainable and in such a case order under Section 144 of Civil Procedure Code could not have passed by the District Forum. Therefore, it is clear the order passed by District Forum is to be set aside. In the result, the order passed by District Forum is set aside and the appeal is allowed. In the circumstances of the case, we direct the parties to bear their own costs throughout. Appeal allowed. _______________