VISHWAS SANTOSH MALVANKAR & ANR vs SANTOSH ATMARAM KALE & ANR.

Vide order dated 05-05-2010 passed in Complaint No.12 of 2004 the District Forum directed as under: "It is hereby ordered that the complaint dated 15-03-2004 filed by the complainants herein against the opposite parties herein stands hereby allowed. Accordingly, the opposite parties are hereby directed to deliver the possession of the said Shop No.S1 completed as per the Agreement to the complainants in terms of prayer (a) of para 25 of the complaint. The opposite parties are also further directed to obtain the Occupancy Certificate and Completion Certificate from the appropriate authorities and also to get NOC for the sale of Shop No.S1 of the suit building and to execute the Deed of Sale in favour of the complainants. We further direct the opposite parties to pay to the complainants interest @18% per annum on the sum of Rs.3,00,000/- from 05-03-2002 upto 05-08-2002 as prayed for at para 25 sub para (c) of the complaint and to pay further interest in terms of paras (d) and (e) thereof. The opposite parties are directed to pay to the complainant the cost of Rs.5,000/- the aforesaid directions under this order shall be complied by the opposite parties herein within 30 days from the date of this order."

Being aggrieved from the aforesaid order of the District Forum the petitioners preferred an appeal before the concerned State Commission. Vide order dated 13-12-2012 the State Commission dismissed the appeal filed by the petitioners, thereby maintaining the above referred order of the District Forum. The petitioners did not challenge the order passed by the State Commission, either by way of a revision petition before this Commission or in any other manner. Consequently, the said order became final and binding in terms of Section 24 of the Consumer Protection Act.

Since the order passed by the District Forum and maintained by the State Commission was not complied, the complainants filed Execution Application No.13 of 2010 before the concerned District Forum. Vide order dated 01-08-2014, the District Forum directed the petitioners to undergo imprisonment for nine months each and to pay Rs.5,000/- each as compensation or to undergo simple imprisonment for another 15 days in default.

The petitioners preferred an appeal under Section 27A of the Consumer Protection Act before the State Commission against the above referred order of the District Forum. The said appeal having been dismissed vide impugned order dated 13-12-2012 the petitioners are before us by way of this revision petition.

The main contention of the learned counsel for the petitioners is that since the services of the petitioners were hired or availed by the complainants for a commercial purpose, they were not ''consumers'' in terms of Section 2(1)(d) of the Consumer Protection Act. In our view, the aforesaid plea ought to have been taken by the petitioners in their written version to the complaint filed before the District Forum. If that was not done, the issue could possibly have been raised during the course of arguments before the District Forum or in the appeal filed before the State Commission. The said plea, in our view cannot be taken for the first time in execution proceedings. The consumer forum before which a complaint under the Consumer Protection Act is filed has the jurisdiction to decide whether the complainant is a consumer as defined in the Act or not. If a person is aggrieved from the finding recorded by the consumer forum on such a plea, he can agitate the matter by way of an appeal/revision petition before a higher forum but, such a plea cannot be taken for the first time in the execution proceedings. The learned counsel for the petitioners submit that a consumer forum granting relief against a person who is not a consumer within the meaning of Consumer Protection Act will be a case of an order having been passed without jurisdiction and such an order can be questioned in collateral proceedings including execution proceedings. We, however, find ourselves unable to accept the said contention. Since the consumer forum has a right to decide whether the complainant before it is a consumer within the meaning of the Consumer Protection Act or not, an order passed by it taking a view in favour of the complainant cannot be said to be without jurisdiction. Such an order even if wrong will not be a case of lack of inherent jurisdiction though it may be said to be a case of erroneous exercise of jurisdiction. Therefore, the said order cannot be questioned either in the execution proceedings or in the proceedings under Section 27 of the Consumer Protection Act. If we accept the contention of the complainants it may result in a situation where a person takes such a plea in the written version filed by him, the said plea is rejected not only by the forum before which the complaint is filed but also by the higher forum and may be by the Hon''ble Supreme Court still he raises the same issue during the course of execution proceedings or the proceedings under Section 27 of the Consumer Protection Act. This, in our view, would not be the correct legal position on the subject.

The learned counsel for the petitioners refers to the decisions of the Hon''ble Supreme Court in Radhey Shyam & Anr. Vs. Chhabi Nath & Ors. and Jagdish Prasad Vs. Iqbal Kaur & Ors, (2015) 5 SCC 423 and Jagmittar Sain Bhagat & Ors. Vs. Director, Health Services, Haryana & Ors. (2013) 10 SCC 136. However, neither of these judgments even deals with the issue raised by the learned counsel for the petitioners. The same is the position in the decision of this Commission in M/s. Nidhi Knitwears (P) Ltd. Vs. The Manager, Bank of Maharashtra, 2014 SCC Online NCDRC 216 , another judgment relied upon by the learned counsel for the petitioners. We, therefore, find no merit in the contention advanced by the learned counsel for the petitioners.

We, however, find that the District Forum did not follow the procedure prescribed in the Code of Criminal Procedure for trial of summon cases in its entirety. Though the District Forum recorded the evidence of the complainants followed by the statements of the petitioners under Section 313 of Cr.P.C. and also examined the petitioners as witnesses, neither any notice in terms of Section 251 of the Cr.P.C. was given to the petitioners nor were they given an opportunity to cross-examine the complainants. Therefore, we are of the considered view that the impugned orders need to be set aside and the applications filed by the complainants under Section 27 of the Consumer Protection Act needs to be decided afresh after strictly complying with the prescribed procedure. If the petitioners plead not guilty of the said notice the District Forum shall examine the complainants and their witnesses giving an opportunity to the petitioners to cross-examine them. The District Forum shall thereafter examine the petitioners in terms of Section 313 of Cr.P.C. and then give an opportunity to them to produce defence witnesses. A fresh order will thereafter be passed by the District Forum on the application filed by the petitioners under Section 27 of the Consumer Protection Act.

For the reasons stated hereinabove, the impugned orders are set aside and the matter is remanded back to the District Forum to pass a fresh order after following the procedure as stated hereinabove. We also request the District Forum to decide the application within three months of the parties appearing before it. The parties shall appear before the concerned District Forum on 02-09-2015.