Jugmandar Dass Bansal vs Tapoban Housing Finance Ltd

PER

AGGRIEVED by the order dated 20.12.2005 passed by Delhi State Consumer Disputes Redressal Commission in execution no. 292/94 in complaint case no. C-262/92, the original complainant has filed the present appeal. The case has a somewhat chequered history which we would like to notice before we dwell on the real controversy. Mr. Jugmandar Dass Bansal -appellant herein had filed the complaint against the President, Managing Director and Director of M/s Tapoban Housing Finance Ltd. and others claiming a sum of Rs.1,21,795/- under different heads with interest @ 24% p.a. w.e.f.01.07.92 till the date of payment on the allegations that he had deposited a sum of Rs.54000/- ( Rs.4000/- on 10.12.1990 and Rs.50000/- on 31.12.1990) with the opposite party-respondent through receipt nos. 37 and 38 on the assurance that the amount shall be refunded to him with interest. The amount was, however, not paid on the date of maturity or even much thereafter. Therefore, the complaint was filed for the recovery of the said amount and the interest accrued thereon @ 24% p.a. w.e.f. 03.01.1991 to 30.06.1992 and conveyance expense and loss of Rs.20,000/-. Due to non- representation, the complaint was proceeded ex parte against opposite party- respondent. Vide order dated 23.04.93, the State Commission partly allowed the said complaint by observing and directing as under: We accept the complaint with costs and direct the respondents to pay the amount of Rs.78,580/- with future interest from the date of complaint till the date of payment within 3 months of the date of this order failing which action under section 27 of the C.P.A. would be taken against them.

Since the directions given by the State Commission were not complied with by the opposite party respondent, appellant-complainant filed execution application under section 25 / 27 of the CP Act, 198 seeking enforcement of the order by securing the presence of the Directors of the company. The said application was registered as Execution Application No. 292/94. Notices were issued to the Directors of the Company out of whom, three Directors of the company, namely, Shri A.R. Biswas, Shri Tapan Nandi and Shri Y.A. Shetty took up the plea that they are not the Directors of the company at the relevant time and, therefore, the State Commission did not issue notice to them but took the execution proceedings against the remaining Directors, namely, Shri A.B. Chaudhary, Shri P.C. Pani and Shri S.C. Mohanty. It would appear that execution proceedings remained pending for quite sometime against the above named three Directors but they failed to satisfy the award by making payment of the awarded amount. The execution was lastly posted before the State Commission on 20.12.2005 when the State Commission made the impugned order. The order is rather a short one and reads as under: Vide order dated 23.04.1996 passed by this Commission, the OP-company was directed to refund an amount of Rs.78,580/- with future interest. There was as many as 7 directors of the opposite party company at the time of passing of the said order. However, three of the directors were left off vide order dated 11.09.1995 on the ground that they were not directors at the relevant time and on the ground that another director S.C. Mohanty cannot be held liable for the acts of omission and commission of the OP company as he was not the director of the company nor was he engaged in the day to day activities of the company. So far as the remaining directors are concerned, they are liable alongwith the company. Since the execution is pending for long and since the order has attained the finality, non-bailable warrant of arrest were issued against all the remaining three directors. Since the counsel for the OP is ready to refund the principal, Execution Proceedings shall stand satisfied if the said amount is paid within two months as the future interest awarded by this Commission was void ab-initio and against provision of Section 14 of the Consumer Protection Act, 1986 and is hereby set aside as any decree which is beyond the jurisdiction is a nullity.

AGGRIEVED by the said order, the original complainant has filed the present appeal. We have heard the appellant in person and Mr. Subhash Sharma, Advocate, learned counsel representing the respondent and have given our thoughtful consideration to their respective submissions. Before we consider the contention raised by the appellant in order to challenge the impugned order, it is pertinent to note that aggrieved by the said order dated 23.04.1993 passed by the State Commission, respondent no.2 approached High Court of Delhi by filing civil Misc. (Main) No.686/2000 but without success. Against the order of the High Court, he filed SLP (Civil) No.1159/2001 but again without success. Therefore, the order dated 23.04.1993 passed by the State Commission became final. It appears that in compliance of the said order, respondents-Directors have paid a certain amount to the appellant, which according to the appellant was not the entire amount payable under the said order.

APPELLANT would assail the impugned order primarily on the ground that impugned order passed by the State Commission is wholly unsustainable in law because while sitting as executing court / forum, the State Commission has substantially modified the order dated 23.04.93 passed in complaint no. C-262/92. The basis of this contention is that the executing court / forum cannot go behind the decree. On the other hand, learned counsel for the respondents has supported the impugned order on the ground that order is based on equity and the order passed in the complaint would prove very harsh at this stage because the opposite parties would be required to pay many times more by way of interest than the principal amount deposited by the appellant with the respondents. Having considered the matter and the settled legal proposition that an executing court / forum cannot go behind the decree / award passed by it, we must at once hold that the impugned order is based on totally erroneous view taken by the State Commission. The reasoning given by the State Commission the future interest awarded by this Commission was void ab-initio and against provision of Section 14 of the Consumer Protection Act, 1986 and is hereby set aside as any decree which is beyond the jurisdiction is a nullity, to say the least, is in total disregard of the settled position of law. It is not uncommon rather it is usual practice that civil courts while passing a decree or a consumer forum while making an award for compensation usually grant reasonable interest relatable to the date of either the cause of action or the filing of the complaint till the time decree was satisfied and the payment of the awarded amount is made. In the case in hand, the State Commission vide order dated 23.04.93 had simply awarded interest from the date of complaint till the payment with the stipulation that the amount shall be payable within three months. We do not find that this stipulation in any way can be said to be void ab initio or will render the award passed by the State Commission as nullity. For the foregoing reasons, we hold that the impugned order passed by the State Commission is legally unsustainable and liable to be set aside and is hereby set aside with the cost of Rs.5000/- to be paid by the respondent to the appellant.