PRAVEEN SINGH RAINA (LT. COL.) vs SURINDER SINGH

THROUGH the medium of this application, execution of the order dated : 31.3.2003 passed by the Commission is sought. The order was passed in Complaint No. 2378/2002. The complainant who is a retired Lt. Col. from the Indian Army on 18.4.2002 had filed the complaint in the Commission. The O.P. (Judgment Debtor) had floated a Finance Company under the name and style of "Khalsa Traders" and was its sole proprietor. He had been receiving the deposits from various depositors. At the initial stages of the working of the company; he used to pay compound interest at the rate of 2% per month to every depositor.

THE complainant decree holder had allured O.P/judgment debtor to open an Account in the Company and as a consequence thereof Account No. 5713 was opened in the year 1998. He started depositing money received by him by way of retiral benefits as a pensioner. THE opposite party/judgment debtor had failed to keep up his promise for the refund of the deposited amounts along with the interest accrued thereon and on final refusal being made, the complainant/decree holder filed the above mentioned complaint in the Commission. After the trial of the complaint, the Commission on 31.3.2003 ordered the refund of the principal amount deposited by the complainant/decree holder up to 2.3.2000 along with interest accrued thereon which amounted to the tune of Rs. 4,59,510 along with future interest at the rate of 9% per annum. THE interest was made payable from 3.3.2000 till the final payment of the decretal amount. THE opposite party/judgment debtor was also directed to pay Rs. 2,000 as litigation charges. THE O.P./judgment debtor did not make any payment towards the liquidation of the awarded amount and on 22.5.2003, the complainant decree holder filed the execution petition wherein refund of Rs. 4,59,510 as principal amount and interest accrued thereon at the rate of 9% per annum from 2.3.2000 to 22.5.2003 amounting to Rs. 1,47,925 and litigation charges to the tune of Rs. 2,000 which in all totalled Rs. 6,09,434 were claimed. The opposite party/judgment debtor was summoned for putting appearance on 6.5.2003, 13.6.2003 and 25.7.2003 but all efforts ended in vain. Finally, on 8.8.2003; his presence could be secured through Mr. R.P. Sapolia Advocate. On the subsequent dates; the opposite party/judgment debtor absconded and his Advocate Mr. R.P. Sapolia also stopped appearing. Finally on 9.10.2003, a non-bailable warrant of arrest was issued against him. On the next date of hearing i.e. on 6.11.2003, the O.P./judgment debtor along with his Counsel presented themselves in the Commission and he made an application for allowing him to liquidate the awarded amount by six instalments. However, after a hot contest an agreed order with their consent was passed whereby within one year the whole amount was made payable by six instalments. The operative part of the order reads : "Judgment debtor had agreed to pay the instalments within 10 days of the month after every two months. First instalment will be paid in the first week of January, 2004. In case there will be failure of two consecutive instalments, the judgment debtor was undertaken to pay the balance amount in lumpsum."

After the passing of the order, opposite party/judgment debtor absented for two dates and on the 3rd date of hearing i.e. on 22.3.2004, his Counsel appeared and informed the Commission that an appeal had been filed in the Hon''ble High Court for staying of the execution proceedings. No stay order had been produced on two subsequent dates and the order dated 21.4.2004 passed by the Commission shows that he had paid only Rs. 50,000 towards the liquidation of the awarded amount. On that day, the Commission had directed the judgment debtor to pay the whole remaining amount within four weeks and produce the stay order from the Hon''ble High Court. After this, the judgment debtor continuously absented himself for many hearings from 21.5.2004 to 10.3.2005 and thus succeeded in prolonging the payment. On every subsequent hearing arrest warrants used to be issued against him and the last warrant of arrest was sent to the Joint Commissioner of Police (Crime), Mumbai which was executed and from 10.3.2005 till date he has been lodged in the judicial custody. It is stated that the O.P./judgment debtor has been facing trial in some criminal cases also. Besides that, two execution petitions for the realization of the two awarded claims are also pending against him in the Commission. In one petition (No. 2522/2003) the complainant/decree holder is Lt. Col. Narinjan Kour who is the wife of the complainant/decree holder. She after her retirement as a Lt. Col. from the Indian Army had also deposited all her earnings with the opposite party/judgment debtor. The Commission has decreed her claims. She wants realization of the decretal amount to the extent of Rs. 39,09,284 (Rupees thirty nine lacs nine thousand two hundred and eighty four only). In the 2nd Execution Petition (No. 2595/2003), the complainant/decree holder is Mrs. Deepinder Kour who is an Advocate of Jammu Bar and has also remained as a Member of the J&K Legislative Council. In her favour award was passed on 10.2.2003 by the Commission for an amount of Rs. 6,00,000 (Rupees six lacs) along with interest at the rate of 9% per annum. The O.P./judgment debtor has not paid any amount towards the satisfaction of those awards.

MR. O.P. Sharma the learned Counsel appearing for the O.P./judgment debtor has submitted that the judgment debtor may be freed from the custody as while remaining at large he can arrange for the liquidation of the decretal amount because the police has seized his insurance policy of the value of Rs. 5.00 lacs and in addition Rs. 20.00 lacs have also been seized. The case is pending in the Court of learned CJM, Jammu. Besides that; he has a house in the locality of Nanak Nagar of Jammu City which has a value of more than Rs. 40.00 lacs. That O.P. /judgment debtor owns a double storeyed office in Transport Nagar, Jammu which too has been seized by the police in connection with the investigation of the above stated criminal case/cases. That in case he is convicted and sentenced to jail then his diet expenses shall have to be borne out by the complainant/decree holder and he will be a liability for the complainant/decree holder. In rebuttal the complainant/decree holder has contended that O.P./judgment debtor does not owe any house in the locality of Nanak Nagar because he has relinquished his rights in favour of his brother S. Gurcharan Singh. That the properties which are stated to have been seized by the police in relation to the investigation of the criminal cases have a bearing with the decisions of those cases and O.P./judgment debtor has no dominion over them. That these are all delaying tactics adopted to deprive the complainant/decree holder to reap the fruits of long drawn litigation. We have considered the respective contentions of the parties. A bare perusal of Section 21 of the Act clearly shows that thereby a legal fiction has been created to the effect that an order made by the Commission will be deemed to be a decree or order made by a Civil Court in a suit. Legal fiction so created has a specific purpose i.e. for the execution of the order. In Arbind Das v. State of Assam and Others, AIR 1981 Gauhati 18 (FB), it has been held thus : "Where a statute gives a power, such power implies that all legitimate steps may be taken to exercise that power even though these steps may not be clearly spelt in the statute, other-wise the ultimate power would become illusory, ridiculous and in-operative." In Savitri v. Gobind Singh Rawat, AIR 1968 SC 984; it has been held as follows : "Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim. "Abi aliquid conceditur, conceditur ed id since quo res ipsa issue non potest." Meaning thereby, "where anything is conceded, there is conceded also anything without which the thing itself cannot exist."

THE terminology used in Section 21 of the Act to the effect, "in the event of its inability to execute it is of great significance". Section 21, on a plain reading, goes to show that the provision contained therein pre-supposes that the Forum or the Commission would be entitled to execute its order. It, however, may send the matter for its execution to a Court only in the event it is unable to do so. Such a contingency may arise only in a given situation but it cannot be said that Consumer Court cannot execute its order and by compulsion it has to send all its orders for execution to the Civil Courts. Plain language employed in a Section must be given its ordinary meaning. THE statement of Objects and Reasons of the J & K Consumer Protection Act, 1987 indicates that it has been enacted to promote and protect the rights and interests of consumers and to provide them speedy and simple redressal of their grievances. Hence, quasi-judicial machinery has been set up for the purpose at different levels. THEse quasi-judicial bodies have to observe the principles of natural justice. THE O.P./judgment debtor herein has also to satisfy the orders passed by the Commission in respect of a liability of Rs. 39,09,248 ( in Execution Petition No. 2522/2003) filed by the complainant decree holder namely, Lieutenant Colonel Narajan Kour wife of the present complainant decree holder, as well as, he has a liability to pay the decretal amount to the complainant decree holder Mrs. Deepinder Kour Advocate in Execution Petition No. 2595/2003 where the liability against him at present must have swelled upto Rs. 8.00 lacs. THE O.P./judgment debtor claims that he is a law graduate and has also practised as a lawyer. THE complainants/decree holders of the aforementioned execution petitions contend that he has misappropriated crores of rupees and acquired Benami properties in the city of Bombay where he had been putting up with his family members. THE record of the case in hand shows that already he has duped the Commission and the complainant decree holder by flouting the Commission''s order dated 6.11.2003. After making a payment of Rs. 50,000 he disappeared from his place of residence and with great difficulty was traced in the city of Bombay. In these circumstances when his previous conduct has not remained fair even during the trial and is a past master in the art of dupely, the Commission again cannot trust him or show any indulgence to enable him to run away from the clutches of law. THE words employed in Section 21 of the Consumer Protection Act clearly show that a trader or a person against whom a complaint is made if fails or omits to comply with any order made by the Divisional Forum or State Commission, such trader or person shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to 3 years or with fine etc. THE heading of the Section is "PENALTIES". THE argument of the learned Counsel Mr. O.P. Sharma that in case of imprisonment, the diet expenses of the O.P./judgment debtor shall have to be paid by the complainant/decree holder has no legal force because the Commission is not a Civil Court but a quasi-judicial Tribunal which has the trappings of both of a Civil, as well as, of a Criminal Court. A consumer who has already been cheated by a trader or a person cannot be again burdened to pay the diet expenses in case of lodgement of the delinquent in the jail. THE Consumer Protection Act is a socialistic piece of legislation enacted for the welfare and benefit of bona fide consumers. In this view of the matter, we disagree with the submissions made by the learned Counsel of the O.P./judgment debtor. In the back drop of the facts and circumstances of the case, we therefore, punish the O.P./judgment debtor under Section 21 of the Act and sentence him to undergo simple imprisonment for a terms of three years. The O.P./judgment debtor has been in the judicial lock-up since 10.3.2005 till date and this period will count as a set-off for his conviction and sentence. The office shall issue warrant of his commitment in the District Jail, Jammu. The execution petition is consigned to the records and the complainant/decree holder can file the fresh one in case law and the changed circumstances permit to do so. Ordered accordingly.