KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

REVISION PETITION No.30/2019

ORDER DATED: 21.02.2022

(Against the Order in C.C.No.93/2017 of CDRF, Kottayam)

PRESENT:

REVISION PETITIONER/2^nd JUDGEMENT DEBTOR:

(by Adv. R. Chandrapraveen)

Vs.

RESPONDENTS/DECREE HOLDER & OTHER JUDGEMENT DEBTORS:

ORDER

SRI. T.S.P. MOOSATH : JUDICIAL MEMBER

          The 2^ndJudgement Debtor in E.A.32/2017 in C.C.No.93/2017 of the Consumer Disputes Redressal Forum, Kottayam (in short District Forum) has filed the Revision Petition challenging the order passed by the District Forum in I.E.A.No.32/2017 dated 29.10.2019, by which the application filed by the petitioner to stay the Execution proceedings was dismissed and notice orderedthe District Collector to initiate Revenue Recovery proceedings against the petitioner for realisation of the amount.

          2.       On receipt of the notice issued from this Commission, the 1^st respondent appeared in person.

          3.       Heard the counsel for the petitioner and 1^st respondent who appeared in person.

          4.       The 1^st respondent filed the complaint before the District Forum, Kottayam as C.C.No.97/2013 against the petitioner and two others seeking refund of cost/replacement of car along with compensation alleging that he was misled by a brochure provided to him by the 3^rd respondent/dealer regarding the mileage of the car and he happened to purchase the car on the basis of the statement in the brochure regarding the mileage of the car and on the assurance of the 2^ndrespondent who was the sale consultant of the dealer, but on use of the car he came to know that the mileage of the car stated in the brochure and assured by the 2^ndrespondent was false.  Alleging negligence and deficiency in service the petitioner has filed the complaint.  By the order dated 30.05.2015 the District Forum disposed of the complaint and directed the petitioner and dealer (R3) to pay the complainant (R1) a sum of Rs.1,00,000/- towards compensation and Rs.5,000/- as litigation costs.  The petitioner complied with the order dated 30.05.2015 passed by the District Forum and deposited Rs.1,05,000/- with the District Forum vide three Demand Drafts amounting to Rs.35,000/- each on 30.07.2015.  Aggrieved by the order passed by the District Forum the complainant/1^st respondent preferred appeal before this commission as A 451/2017 which was disposed of by this commission vide order dated 31.08.2016 wherein this commission modified the order of the District Forum and directed the petitioner and R3 (dealer) to replace the car with a new one within a month of the order or refund the price of the car Rs.8,77,794/- along with interest @12% per annum.  The petitioner preferred Revision Petition as RP 35/2017 before the National Commission against the order passed by this commission and the same is pending before the National Commission.  The National Commission stayed the execution of the order of the Commission dated 31.08.2016 till the next date of hearing subject to the petitioner depositing fifty percent of the awarded amount along with upto date interest accrued thereon, if any, if already not deposited with the District Forum within four weeks.  The petitioner deposited Rs.3,59,385/- before the District Forum, Kottayam taking into account the amount of Rs.1,05,000/- already deposited before the District Forum, Kottayam.  The 1^st respondent/complainant filed Execution Petition as E.A.No.32/2017 before the District Forum, Kottayam against the petitioner and others alleging that the petitioner failed to comply with the order of the National Commission dated 19.04.2017 and that he has failed to deposit the entire amount as directed by the National Commission.   The District Forum issued notice to the petitioner to appear before the District Forum on 29.08.2018.  The petitioner filed a petition for stay before the National Commission and by the order dated 02.08.2019 the National Commission disposed of the petition for interim relief (I.A.No.1205/2019) and the order is as follows:

“After some arguments learned counsel seeks permission to withdraw

the application with liberty to move appropriate application at the appropriate time. Dismissed as withdrawn with liberty as prayed for”

The petitioner filed application before the District Forum to stay the execution proceedings stating that the National Commission has already granted stay of execution proceedings.  The 1^st respondent/Decree Holder contended that the petitioner failed to comply with the direction given by the National Commission while granting the stay and hence there is no stay.  The District Forum vide its order dated 01.09.2018 came to the conclusion that there was shortfall of Rs.54,427/- in the amount deposited by the petitioner and observed that the petitioner failed to comply with the direction of the National Commission in the order dated 19.04.2017 and therefore the stay granted by the National Commission stood vacated.  The District Forum granted liberty to the 1^st respondent/Decree Holder to proceed against the petitioner under Section 25 or 27 of the Consumer Protection Act.  Petitioner deposited Rs.54,427/- before the District Forum vide D.D. dated 31.10.2018.  Thereafter the petitioner filed application before the District Forum for stay of the execution by the order dated 29.10.2019.  The District Forum dismissed the application filed by the petitioner and issued notice to the District Collector to initiate Revenue Recovery proceedings against the petitioner.  The petitioner filed I.A.No.17827/2019 before the National Commission for stay of the order issued by the District Forum.  The National Commission disposed of the I.A. vide order dated 19.11.2019 and the order passed by the National Commission is as follows:

“After some arguments learned counsel seeks permission to withdraw the present application with liberty to file appeal against the order of the District Forum dated 29.10.2019.  The application stands dismissed as withdrawn with liberty as prayed for”

Thereafter the petitioner has filed the present Revision Petition against the order passed by the District Forum.  There is not much dispute between the parties as to these facts.

          5.       The counsel for the Revision Petitioner submitted that the finding of the District Forum that the petitioner failed to comply with the order of the National Commission dated 19.04.2017, that there is shortfall of Rs.54,427/- in the amount deposited by the petitioner and therefore the stay granted by the National Commission stood vacated is erroneous.  The National Commission has granted stay of execution of proceedings subject to the petitioner depositing fifty percent of the awarded amount along with upto date interest, accrued thereon, if any, if already not deposited with the District Forum concerned, within four weeks.  In the order of the District Forum dated 01.09.2018, the District Forum made a detailed calculation of the amount which should have been deposited by the petitioner as per the order of the National Commission and came to the conclusion there is a shortfall of Rs.54,427/- in the amount deposited by the Petitioner/Judgement Debtor.  In that order it is stated that even though the counsel for the Judgement Debtor submitted that the amount was deposited as per the order of the National Commission, he did not produce any account statement to substantiate his contention.  On a perusal of the documents we consider that there is no reason/ground to interfere with the finding of the District Forum that there is a shortfall of Rs.54,427/- in the deposit made by the petitioner, that he failed to comply with the direction of the National Commission in the order dated 19.04.2017.  The order of the National Commission is to deposit the amount within four weeks from the date of the order.  Admittedly the petitioner deposited the amount of Rs.54,427/- only on 31.10.2018, long after the time limit of four weeks stipulated by the National Commission for the deposit of the amount had expired.  The petitioner has not approached the National Commission for extension of time for deposit of the amount or to condone the delay in depositing the amount as directed by the National Commission.  In these circumstances it can be seen that the finding of the District Forum that the petitioner failed to comply with the direction of the National Commission is correct.

          6.       It is stated by the Revision Petitioner that the finding of the District Forum that since the petitioner failed to comply with the direction of the National Commission the exparte stay granted by the National Commission stood vacated is against the settled position of the law.  According to the Revision Petitioner the stay order was granted by the National Commission and hence only the National Commission can vacate the stay order and the District Forum does not have jurisdiction to pass any order contrary to the order passed by the National Commission, which is a superior court.  It is contended by the petitioner that it was for the complainant/1^st respondent to have approached the National Commission and sought a clarification of the stay order passed by the National Commission if he had a case that the petitioner had failed to comply with the direction of the National Commission.  On a perusal of the order of the National Commission dated 19.04.2017 it can be seen that the contention of the petitioner is without any basis.  In the order of the National Commission what is stated is that, the execution of the impugned order passed by the State Commission is stayed till the next date of hearing subject to the petitioner depositing the amount before the District Forum as stated in the order.  It is stated by the Revision Petitioner that the petitioner had filed compliance report of the order dated 19.04.2017 before the National Commission on 11.09.2017 and the National Commission passed an order on 12.09.2017 as “interim stay to continue”, thereby confirming the interim stay granted by the National Commission and the same is continuing.  Petitioner has not produced any such order of the National Commission by which the interim stay granted was made absolute or extended till the disposal of the appeal before the District Forum or before this commission.  The copy of the order of the National Commission dated 12.09.2017 produced by the petitioner is as follows:

“Mr. Jaimon Andrews, counsel for the respondent No.1 states that he will be filing his vakalath during the course of the day.  Noticeswere issued to respondentsno.2 and 3 on 28.04.2017.  Acknowledgement card has not been received.  Registry is directed to issue fresh notices to respondentsno.2 and 3.  Counsel for the respondent no.1 states that respondentno.1 has not received the amount of Rs.7,500/-.  Counsel for the petitioner seeks one weeks’ time to check because as per his tracking report amount has been paid, otherwise fresh draft in the name of respondent no.1 would be sent to him within two weeks.  List the case on 15.02.2018.  Interim stay to continue”

Petitioner has not produced any order of the National Commission dated 15.02.2018 or of any subsequent date to show that the interim stay granted was made absolute or extended till the disposal of the appeal.  If the District Forum proceeded with the Execution Petition in ignorance of the order of the stay granted by the National Commission the petitioner could have very well approached the National Commission and brought the matter to the notice of the National Commission.  Admittedly the petitioner has not made any such attempt.  Further the documents produced by the petitioner show that on two occasions the petitioner had approached the National Commission challenging the orders passed by the District Forum in the execution proceedings, but those were withdrawn later.

          7.       In the last portion of the order of the National Commission dated 19.04.2017 it is stated as

“in case, petitioner fails to comply with the above directions within the prescribed period then the ex-parte stay granted today shall stand vacated, automatically without any further order”

Since the petitioner has failed to comply with the direction issued by the National Commission within the prescribed period, the stay granted stands vacated, automatically, without any further orders.  The District Forum also considered the order of the National Commission dated 02.08.2019 allowing the petitioner to withdraw I.A.No.12205/2019 without liberty to move appropriate application at the appropriate time and dismissed the same as withdrawn.  Considering all these facts the District Forum concluded that there is no valid stay order in force issued by the National Commission.  We find that there is no illegality, material irregularity or jurisdictional error in the order passed by the District Forum which warrants interference by this Commission in exercise of the revisional jurisdiction.  So the Revision Petition is liable to be dismissed. 

          8.       In the result, the Revision Petition is dismissed.  Parties are directed to suffer their respective costs.

SL