Sri Subhra Sankar Bhatta, Judicial Member
The instant appeal under Section 73 of the Consumer Protection Act, 2019 (hereinafter referred to as `The Act’)has been preferred at the instance of the Appellant/DHr, Sourav Das challenging the impugned order dated 01.04.2022(vide order no. 55) passed in Execution Application No. EA/113/2016 arising out of Consumer Complaint case No. CC/298/2015 by District Consumer Disputes Redressal Commission, Kolkata, Unit-II, Central whereby Ld. DCDRC was pleased to pass the order in the following manner:
“The Appellate Court vide order no. 1 dated 18.10.2016 passed in FA No. A/931/2016 set aside the impugned order dated 16.09.2016 with regard to direct the JDrs to pay Rs.4,00,000/- as it is not in consonance with the final order passed in the CC/298/2015. Our hands are tight as we do not go beyond the order of the Appellate Forum though the report of Automobile Engineer goes to show that the present market price of the subject car as on 17.12.2018 is Rs.40,000/- and Chevrolet Car Company has closed its business close in its business in India and its spare parts are not available in the market. OPs are ready and willing to hand-over the same model car to the DHr since long but the DHr was not willing to accept the same. His demand is Rs. 4,00,000/- in lieu of same model car. Due to wear and tear and also non-maintenance the condition of the subject car deteriorated. I In our view the JDrs are not responsible for such situation, if the DHr would have accepted the same model car on the relevant point of time and in that event, the subject car would not have deteriorated. This Commission vide order dated 06.02.2018 directed the DHr to take delivery of subject car on the next date. DHr did not receive the said car nor preferred any Revision Petition before the Hon`ble SCDRC against such order. Therefore, we cannot go beyond the order dated 06.02.2018 passed by this Commission. As such, the DHr is directed to take delivery of subject car as is where is condition from the JDr by 02.05.2022.
To date for appearance for the parties and compliance report”.
Being aggrieved by and dissatisfied with the above order of the Ld. Commission below the JDr as Appellant has preferred the present appeal under Section 73 of the said Act contending inter alia that the Ld. Commission below has committed error and illegality in passing the impugned order; that the Ld. Commission below erred both in law and fact by not allowing the execution of the order for paying the compensation of Rs.4,60,000/- along with the monthly compensation which has been allowed as per order passed in CC no. 298/2015; that the Ld. Commission below failed to appreciate that the order which has been set aside in A/931/2016 is the impugned order dated 26.09.2016 passed in EA/113/2016; that the Ld. Forum below had actually ordered Rs. 4,60,000/- and further payment of Rs. 5,00,000/- per day till the date of non-payment and the same has to be implemented; that the Ld. Commission below failed to appreciate that in appeal preferred under Section 27 of the Consumer Protection Act, 1986 does not allow the Appellant to interfere with the original order passed in CC case no. 298/2015; that the Ld. Commission below exceeded its jurisdiction by allowing on appeal on the date of admission when the Complainant had come unprepared and the disposal of the appeal on the very first date clearly proves that the Hon’ble State Commission had not acted as per practice and such deviation clearly proves the lack of application of mind in the matter; that the Ld. District Commission without applying its judicial mind totally failed to appreciate the order passed in CC Case no. 298/2015 which is still standing; that the Ld. District Commission failed to appreciate that the Complainant had filed a petition stating that the Complainant needs the monetary compensation and at present it is impossible to provide a car of four years as the manufacturer had already stopped production of the car in India; that the Ld. Commission below ought to have allowed the execution case in toto following the order passed in CC case no. 298/2015. On all such grounds the Appellant/DHr has prayed for allowing the present Appeal after setting aside the impugned order.
Considered the submissions advanced on behalf of the Appellant/DHr by the Ld. Counsel on 7th September, 2023.
Perused the brief notes of argument and the entire materials available on record specially the impugned order dated 01.04.2022 passed in the execution application being no. EA/113/2016.
By virtue of present appeal under Section 73 of the said Act the Appellant/DHr has prayed for setting aside the impugned order no. 55 dated 01.04.2022 passed in EA/113/2016 arising out of Consumer Complaint Case no. CC/298/2015.
At the very outset of discussion it is very much relevant to mention the provisions of Sections 72 and 73 of the said Act.
72. Penalty for non-compliance of order.—(1) Whoever fails to comply with any order made by the District Commission or the State Commission or the National Commission, as the case may be, shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty-five thousand rupees, but which may extend to one lakh rupees, or with both.
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the District Commission, the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of First Class for the trial of offences under sub-section (1), and on conferment of such powers, the District Commission or the State Commission or the National Commission, as the case may be, shall be deemed to be a Judicial Magistrate of First Class for the purpose of the Code of Criminal Procedure, 1973.
(3) Save as otherwise provided, the offences under sub-section (1) shall be tried summarily by the District Commission or the State Commission or the National Commission, as the case may be.
73. Appeal against order passed under Section 72.—(1) notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), where an order is passed under sub-section (1) of Section 72, an appeal shall lie, both on facts and law from—
(a) the order made by the District Commission to the State Commission;
(b) the order made by the State Commission to the National Commission’ and
(c) the order made by the National Commission to the Supreme Court.
(2) Except as provided in sub-section (1), no appeal shall lie before any court, from any order of a District Commission or a State Commission or the National Commission, as the case may be.
(3) Every appeal under this section shall be preferred within a period of thirty days from the date of order of a District Commission or a State Commission or the National Commission, as the case may be:
Provided that the State Commission or the National Commission or the Supreme Court, as the case may be, may entertain an appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period of thirty days.
From the conjoint reading of Sections 72 and 73 of the said Act it is crystal clear that an appeal under Section 73 can only lie before the State Commission on facts and law if an order of conviction and sentence is passed under Section 72 of the Act by the Commission. As against an order of conviction and sentence passed by the State Commission, an Appeal can be preferred to the National Commission and order of conviction and sentence passed by the Hon’ble National Commission would be appealable before the Hon’ble Supreme Court.
The present appeal has been preferred by the Appellant challenging the order passed by the Ld. DCDRC, Kolkata Unit—II (Central) in connection with Execution Application no. EA/113/2016 arising out of Complaint Case no. CC/298/2015 whereby Ld. Commission below was pleased to give certain directions and also fix the next date for appearance of the parties and compliance report. Undisputedly, no order of sentence and imprisonment has been assailed before the State Commission and has not been brought on record. It reveals from the case record that the Hon’ble State Commission was pleased to set aside the impugned order dated 16.09.2016 with regard to the direction upon the JDrs to pay Rs. 4,00,000/- as it is not in consonance with the final order passed in the Consumer Complaint Case no. CC/298/2015. It further reveals from the impugned order dated 01.04.2022 that the Ld. Commission below vide order dated 06.02.2018 directed the DHr to take delivery of the subject car on the next date. The DHr did not receive the said car as per direction of the Commission. The DHr did not also prefer any revision petition before the Hon’ble State Commission challenging the said order. Thus being the position we are constrained to hold that the present appeal under Section 73 of the Consumer Protection Act, 2019 is not at all entertainable and maintainable in the eye of law.
On meticulous scrutiny of the impugned order we do not find any irregularity or illegality in the said order neither order of sentence nor imprisonment was imposed by the impugned order. So, question of appeal under Section 73 of the said Act does not arise at all.
It is the settled principle of law that an executing Court cannot travel beyond the decree.
Considering all aspects from all angles and having considered the submission of the Ld. Counsel for the Appellant and regard being had to the position of law we hold and firmly hold that the present appeal under Section 73 of the said Act is not at all maintainable and as such liable to be dismissed in limini. In our considered view the impugned order passed by the Ld. DCDRC, Kolkata Unit—II (Central) does not deserve interference of this Appellate Commission. Practically, there is no scope within the four corners of the said act to challenge an order passed in the execution proceeding before the Appellate Commission taking the aid of Section 73 of the Act.
Resultantly, the present appeal fails.
Hence,
O R D E R E D
That the present appeal being no. AEA/21/2022 be and the same is dismissed ex parte without any order as to costs. The order passed by the Ld. DCDRC, Kolkata Unit—II (Central) in Execution Application no. 113/2016 arising out of Complaint Case no.CC/298/2015 on 1st April, 2022 is hereby affirmed.
Interim Stay, if any, be vacated forthwith.
Let a copy of this order be transmitted to the Ld. Commission below forthwith for information and taking necessary in order to dispose of execution proceeding as expeditious as possible.
Thus, the appeal stands disposed of.
Note accordingly.
