Om Prakash Bhatia vs DEEPU CHITS PVT. LTD.

THE Commission in a complaint by Shri Om Parkash Bhatia against the respondents, vide order dated 4th March, 1992 directed the respondents to pay an amount of Rs. 1,20,000/- (Rs. One Lacs Twenty thousand only) with interest @ 12% p.a. from the date of filing the complaint i.e. 4.11.1991 till the date of repayment of the amount, within a period of three months. THE respondents have not paid the amount till-date. Consequently, the complainant filed an application under Section 27 of the Consumer Protection Act (hereinafter referred to as ''the Act'') that action be taken against them under the said Act for non-compliance of the order of the Commission dated 4th March, 1992. THE notice of the application was given to the respondents.

SHRI Ramesh Chand Gupta, Managing Director of the Company, respondent No. 3 appeared on 12th August, 92. A copy of the paper book was given to him and the case was adjourned to 2nd September, 92 for reply. On that date his Advocate appeared and requested for an adjournment to file the reply. The case was adjourned to 16th September, 92. On the adjouned date SHRI Ramesh Chand Gupta, was given a show cause notice as to why action be not taken against him under Section 27 of the Act. The case was adjourned to 14th October, 92 for his reply. SHRI Ramesh Chand Gupta submitted reply to the show cause notice. Mr. Bhatia, there-after, filed rejoinder supported by an affidavit on 6th November, 92. The case was adjourned to 20th November, 92 to enable Mr. Gupta to file affidavits if he wanted to do so. Mr. Gupta, however, filed an affidavit on 23rd November, 1992. In his reply dated 14.10.92 to the show cause notice, Mr. Gupta pleaded that the complainant had orally compromised the matter and agreed to accept a sum of Rs. 75,000/- in full and final payment of the decretal amount, on 16th September, 92 before the Registrar of the Commission. It is further pleaded by him that, though his liability was less than Rs. 75,000/-, yet in the interest of justice he agreed to settle the entire dispute by payment of Rs. 75,000/-. The business of respondent No. 1 had gone down and the company had suffered a loss of Rs. 10 Lacs on account of defaults committed by its members in remitting the instalments and therefore, the amount could not be paid. It is next pleaded that no action under Section 27 can be taken against him as remedy under Section 25 of the Act was available to the complainant.

The complainant in his reply denied the allegations of the respondent that a compromise had arrived at between the parties and that he agreed to accept Rs. 75,000/- in full and final settlement of his claim. He averred that the respondents were jointly and severally liable to pay the amount and the defence set up by Shri Gupta was for the purpose of delaying the payment of the decretal amount. He also submitted that the respondents were in a position to pay the decretal amount, which is evident from the fact that they had with them a Maruti car of the market value of Rs. 90 thousand, one big size computer of the value of Rs. 20,000/-, one shop in Mayapuri Complex of the value of Rs. 2 Lacs, one room cooler of the value of Rs. 5,000/-, furniture, shares of various companies, etc. In his affidavit dated 23rd November, 1992 the allegations regarding the property have not been denied by Shri Gupta.

THE 1st question that arises for determination is, whether an application for prosecution under Section 27 of the Consumer Protection Act is maintainable by a decree holder against a judgment debtor inspite of the fact that a remedy by way of execution is available to him under Section 25 of the Act. It is provided in Section 25 that the orders passed by the Redressal Agencies under the Act, can be enforced by them in the manner as if those were decrees made by a Court in a suit pending therein and in case they are unable to execute the decrees themselves they can send them to the Court for execution. Section 27 relates to prosecution of the judgment debtor and it provides penalties for non- compliance of the order of the Redressal Agencies by him. Under this Section non-compliance of the order by the Redressal Agencies is punishable with imprisonment for a term up to 3 years or with a fine upto Rs. 10,000/- or with both. It also provides minimum punishment. It is mentioned in the Section that the punishment by way of imprisonment shall not be less than 1 month and by way of fine shall not be less than Rs. 2,000/-. However, the Agencies have been given power to impose a sentence of imprisonment or fine or both for a term less than the minimum term and the amount lesser than the minimum amount, if it is satisfied that the circumstances of the case so require.

THE preamble of the Act provides, that the Act has been enacted for better protection of the interest of the consumers. No particular procedure has been prescribed for the Redressal Agencies to decide the complaints filed by the consumers. No guidelines have been provided in the Act, as to when a decree holder shall proceed under Section 25 and when under Section 27. Section 25 enables a decree holder to get his decree executed through a civil process. It is well known that the judgment debtor create legal hurdles in the way of the decree holder at the time of execution and thus deprive him from the fruit of the decree for a long time. In many cases, the judgment debtors are in a position to pay the decretal amount, but still they delay the executions by filing frivolous objections. It is axiomatic that in India the real trouble of a litigant starts after he obtains a decree. THE Legislature while enacting Consumer Protection Act was mindful of the delays that are caused by the judgment debtors at the time of execution. So it in its wisdom enacted Section 27, so that a decree holder if he so wishes, can prosecute the judgment debtor, in case he fails to pay the decretal amount. If the matter is viewed from this angle, it is evident that Sections 25 & 27 are in the nature of execution proceedings and constitute independent remedies. THE decree holder can avail any of them at his will. It does not mean, that he cannot avail of the other remedy, if by availing of one remedy, he failed to recover the amount. In the aforesaid view we are fortified by the observations of the State Commission, Haryana in Kohinoor Carpets v. Rajinder Arora, II (1991) CPJ 429. The following observations of the learned Commission may be read with advantage: - "The scheme for enforcement of the orders of the three Redressal Agencies under the Act has then to be viewed in a larger perspective. This necessarily involves the corelating of Sections 25 and 27 of the Act. Both these provisions are directed towards the speedy enforcement of the orders of the District Forum, the State Commission or the National Commission as the case may be. To put it tersely, both Sections 25 and 27 are in the nature of the execution proceedings of the orders made by the three Redressal Agencies. While Section 25 visualises the enforcement of such orders by a civil process, as if they were a decree or order made by a Court of law, Section 27 confers a quasicriminal sanction for their enforcement by way of punishment with imprisonment or imposition of monetary penalties." We are, therefore, of the view, that an application under Section 27 is maintainable by the decree holder against a judgment debtor, inspite of the fact that a remedy by way of execution is available to him under Section 25 of the Act.

THE learned Counsel for the respondent faced with this situation, sought to argue that no procedure for proceedings under Section 27 has been prescribed by the Act and, therefore, the said Section is ultra-vires. In support of his contention has placed reliance on Smt. Menaka Gandhi v. Union of India, AIR 1978 Supreme Court, 597. We have duly considered the matter but regret our inability to accept the same. THE Supreme Court was dealing in that case, the powers conferred upon executive authority for confiscating the pass port under the Pass Ports Act, 1967. In the present case the Redressal Agencies under the Act have been conferred with the powers of the Courts. In the case of State Commission, the President of the State Commission is a Judge of the High Court either sitting or retired and in the case of National Commission the President is a Judge of the Supreme Court either sitting or retired. Similarly, in the case of District Forum, the President is a District Judge sitting or retired. It is thus clear that the Presidents of the Redressal Agencies are the Judges, who have got rich experience of the working of the Courts. It is also evident from the provisions of the Act, that the Legislature wished that the disputes of the Consumers should be decided by the Redressal Agencies expeditiously. THErefore, we are of the view that the Redressal Agencies cannot be equated with an Authority under the Passports Act. It is well settled that if some powers are vested in high authority such as Redressal Agencies under C.P. Act the abuse of power cannot be assumed. After taking into consideration the provisions of the Act, we are of the view that Section 27 cannot be said to be ultra vires. THErefore, we reject the submission of Mr. Krishan.

THE second question that arises for determination is, whether there was any compromise between the parties. THE plea of the respondents that a compromise was arrived at between the parties according to which the complainant agreed to accept Rs. 75.000/- in full and final settlement of the claim has been denied by the complainant. THEre is no written agreement between the parties. Such pleas are often taken by the judgment debtors to avoid their liability. This plea of the respondent No. 3, therefore, cannot be accepted. The third question that arises for decision is, that if a company suffered huge losses and, plea is therefore, unable to pay the amount whether the other judgment debtors can take benefit of that. The decree was passed against all the respondents and not against the company only. Therefore, respondent No. 3 is also personally liable to pay the amount. If the company suffered losses, respondent No. 3 is still in a position to pay the decretal amount from his own resources. The complainant in his affidavit has disclosed assets which belong to the respondents. That fact has not been denied by them.

After taking into consideration all the facts and circumstances of the case, we are of the view that the charge under Section 27 has been established against respondent No. 3. Consequently, we accept the complaint and sentence Shri Ramesh Chand Gupta to under go simple imprisonment for as period of three months and to pay a fine of Rs. 2,000/-. In default of payment of the fine he shall further undergo imprisonment for a period of one month. The complaint stands disposed of accordingly. Complaint accepted.