PRADIPTA KUMAR DAS vs GOPAL CHARAN JENA

-FIRST Appeal No. 837 of 2006 filed at the instance of the former Secretary of the Purana Mini Bank and First Appeal No. 872 of 2006 filed by the present Secretary of the said Purana Mini Bank are directed against the order dated 5. 10. 2006 passed by Jagatsinghpur District Forum in Execution Case No. 09 of 2006, by which both of them have been found guilty under Section 27 of the Consumer Protection Act, 1986 (hereinafter referred to as the ''act'') and sentenced to undergo imprisonment for a period of six months each or till realization of the awarded amount (Rupees 1,12,700) as on 18. 8. 2006 and to pay interest @ 9% till date of payment with fine of Rupees 5,000 each. Both the appeals are filed under Section 27a of the Act. As they are analogous, they were heard together and are disposed of by this common order.

GOPAL Charan Jena, who is respondent No. 1 in both the appeals, is the complainant who filed C. D. Case No. 111 of 1998 in Jagatsinghpur District Forum. By order dated 18. 1. 1999, the District Forum allowed the complaint holding both the appellants jointly and severally liable to refund Rupees 40,000 to the respondent No. 1 with interest @ 18% per annum from 27. 9. 1995 after deducting rupees 6,720. Against the aforesaid order of the District Forum, Secretary, Purana Mini Bank (appellant in First Appeal No. 872 of 2006) and Pradipta Kumar Das - former Secretary of the said bank (appellant in First Appeal No. 837 of 2006) filed respectively C. D. Appeal Nos. 240 and 311 of 1999. This Commission after hearing, dismissed both the appeals by common order dated 30. 12. 2005. As the appellants did not comply with the order of the District Forum which was confirmed by this Commission in appeal as mentioned above, the respondent No. 1 filed Execution Case No. 09 of 2006, out of which the present appeals arise. The order of the District Forum dated 18. 1. 1999 made in C. D. Case No. 111 of 1998 holding both the appellants jointly and sevrally liable to refund Rupees 40,000 to the respondent No. 1 with interest has become final after it is confirmed by this Commission by order dated 30. 12. 2005 passed in C. D. Appeal Nos. 240 and 311 of 1999.

It is well settled that an Executing Court cannot go beind the decree. Therefore, the District Forum while dealing with the execution case cannot go behind its order dated 18. 1. 1999. Section 24 of the Act declares that every order of a District Forum, the State Commission or the National Commission shall, if no appeal has been preferred against such order under the provisions of this Act, be final. The order of the District Forum has reached finality. It is, therefore, not open to the appellants to plead any new fact in execution proceedings to upset the final order.

MR. Mohanty, Counsel for the appellant appearing in First Appeal No. 872 of 2006 submitted that in an appeal under Section 27a of the Act, both facts and law can be gone into and, therefore, the validity of the order under execution can be gone into. By referring to documents like audit report, the order passed in the cooperative surcharge case, FIR etc. , he submitted that the former Secretary (appellant in First Appeal No. 837 of 2006) had misappropriated huge amount from the bank, for which vigilance case under Section 13 (2) read with Sections 13 (1) (c)/7 of the Prevention of Corruption Act and Sections 409/420/468/471, IPC has been commenced and till termination of the criminal case, the appellants cannot be held guilty. Mr. Das, who is appearing for the former Secretary (appellant in First Appeal No. 837 of 2006), submitted that he has not misappropriated any money and no liability should be fastened on him. The contention of Mr. Mohanty that in an appeal under Section 27a of the Act, this Commission can go into both on facts and on law appears to be attractive, but at close look at the relevant provisions, it would be appeared that it is devoid of merit. Under Section 27 (1) of the Act, if a person against whom a complaint is made fails to comply with any order made by the District Forum, such person shall be punishable with imprisonment for a term stated therein. Against such order of imprisonment, the aggrieved paty can file appeal under Section 27a of the Act both on facts and law. The expression "both on facts and on law" appearing in Section 27a (1) means the "facts" on the basis of which a party is punished and the point of law involved therein while passing punishment under Section 27 (1) of the Act. If the contention of Mr. Mohanty is accepted, it would lead to disastrous consequences inasmuch as in the name of filing appeal under Section 27a againt the order of imprisonment, a party will re-open an order made in the complaint which has attained its finality. For the reasons mentioned above, we have no hesitation to hold that the expression "on facts and on law" is limited to the facts and law envisaged under Section 27 (1) of the Act. In the present case, no fact nor any law is involved in holding the appellants guilty under Section 27 (1) of the Act.

NOW coming to the validity of the impugned order, we find that the appellants instead of filing cause sought for adjournments. The District Forum found that it was a ruse to linger the proceedings and frustrate the order, with a view to deprive a successful party to reap the fruits of his success. It has, therefore, rightly rejected the prayer for adjournment and held them guilty under Section 27 of the Act. We may state here that for the act of omission or commission of the agent, the principal is liable. Therefore, the Purana Mini Bank cannot escape its liability by taking shelter behind the plea that the vigilance case has been started against its former Secretary. The conduct of the appellants shows that they are trying to seek shelter under the provisions of the Act to avoid their liability. They know that the order of the District Forum holding them jointly and severally liable to refund the amount has reached finality but they indulge in litigations by filing the present appeals which are without any substance. For the reasons mentioned above, both the appeals are dismissed with cost of Rupees 5,000 (five thousand) which shall be borne by the appellants jointly and severally. Appeals dismissed.