All these EPs are filed for executing Orders passed in the concerned Complaints (CC) wherein there is an order directing the OP Society to pay certain amounts to the Complainant/Decree Holder.When the execution was sought, notices were issued to the OPs and not to the OP Society nor notice to OP Society was sought by DHr.In an event during the course of execution proceedings, the Decree Holders made an application u/s. 25 of the C.P. Act seeking attachment and sale of properties of the Society.On that, this Forum on 26.11.2011 has passed the following Order:
“The applications are allowed. It is ordered that Certificate shall be issued under Sec – 25(3) of the Consumer Protection Act to the Deputy Commissioner of the Kolar District, requiring him to proceed to recover the amount mentioned in the Certificate as arrears of land revenue.As the cases are clubbed and the common order is passed, it is proper if a common certificate is issued relating to all these cases, by annexing the statement showing the amount due relating to each Dhr.Hence the statement filed along with this application shall be annexed to the said Certificate.The Deputy Commissioner, Kolar District shall proceed to recover the amount shown in the said Certificate and its annexure in the same manner as arrears of land revenue.Having regard to the facts and circumstances of the case, the Learned Deputy Commissioner is directed to take necessary action within 06 months from the date of this order”.
2.Accordingly, the recovery Certificate matter was sent to the Deputy Commissioner for recovery of payment. Subsequently, on 27.12.2011, the Decree Holders filed affidavits.On that certain processes were issued to the President & Secretary i.e., OPs/JDrs.Hence, the matter was heard.
3.The points that arise for our consideration are:
(A)Without complaint as u/s. 200 CrPC r/w. Sec. 27 of C.P. Act is filed, whether this Forum could issue warrant or try for the offenceu/s. 27 of C.P. Act?
(B)Whether once the matter has been referred to the Deputy Commissioner u/s. 25(2) of C.P. Act, whether this Forum without report from the Deputy Commissioner can take further action in the matter?
(C)What order ?
4.Our answers are:
(A) Negative
(B)Negative
(C)As per detailed order for the following reasons
REASONS
5.It is seen that this Forum in all these cases has passedthefollowingorder:
The Complaint is allowed with costs of Rs.1,000/-.The OP Society shall repay the balance of deposits as stated in para 2 of the order to complainant with interest at …% p.a. from ……… till the date of payment less the interest already paid.The amount due under the award shall be paid within 6 weeks from the date of order.
That means this Forum has passed an Order directing the OP Society to pay certain amounts to the Complainants, that’s all.Regarding that, in these executions, notices were issued to the JDr and not to the Society.Meanwhile, Complainant themselves made application seeking attachment and sale of properties of the Society.On that Order, following order is passed:
“The applications are allowed. It is ordered that Certificate shall be issued under Sec – 25(3) of the Consumer Protection Act to the Deputy Commissioner of the Kolar District, requiring him to proceed to recover the amount mentioned in the Certificate as arrears of land revenue.As the cases are clubbed and the common order is passed, it is proper if a common certificate is issued relating to all these cases, by annexing the statement showing the amount due relating to each Dhr.Hence the statement filed along with this application shall be annexed to the said Certificate.The Deputy Commissioner, Kolar District shall proceed to recover the amount shown in the said Certificate and its annexure in the same manner as arrears of land revenue.Having regard to the facts and circumstances of the case, the Learned Deputy Commissioner is directed to take necessary action within 06 months from the date of this order”.
6.Accordingly, matter was referred to Deputy Commissioner as u/s. 25 of the C.P. Act and the matter is seized off by the Deputy Commissioner.When that is the case, how can Decree Holder seek simultaneous execution one by u/s. 25 and another by u/s. 27 of C.P. Act.
7.In an event, in a case between M/s. Shanthiniketan HousingFoundation & others and Brig (Retd) J.N. Devaiah & othersin WP Nos. 700/2008 (GM-CON) c/w. WP No. 14927/2006, 16308/2006, 17104/2006, 17106/2006, 17513/2006, 17725/2006, 1767/2006, 18030/2006, 18212/2006, 1008/2007, 1010/2007, 1011/2007, 1077/2007, 1078/2007, 2723/2007, 2978/2007, 3371/2007, 3427/2007, 4019/2007, 5293/2007, 5295/2007, 5296/2007, 6198/2007, 6838/2007, 6906/2007, 7361/2007, 8160/2007, 8747/2007, 8748/2007, 8749/2007, 9558/2007, 10479/2007, 11929/2007, 13291/2007, 14314/2007, 14834/2007, 16760/2007, 18563/2007, 19583/2007, 19584/2007, 19585/2007, 6857/2008, 8118/2008, 8395/2008, 8453/2008, 8504/2008, 10572/2008, 10573/2008, our Hon’ble High Court on 19.06.2009 has clearly stated that in case of offence punishable u/s. 27 of C.P. Act or in case issue of NBW to the JDr, Execution Petition has to be filed, notice has to be served on the JDr, then if there is failure to comply and omit to comply with the order then Decree Holder has to file the Complaint u/s. 200 r/w. Sec. 27 of C.P. Act, Forum has to record sworn statement, has to take cognizance in the matter and then it has to issue process as if it is criminal case as u/s. 200 CrPC.In these cases, no such thing has been done.No Complaint u/s. 200 CrPC, r/w. 27 of C.P. Act is filed, no cognizance for the offence punishable u/s. 27 of C.P. Act is taken, nor sworn statement is recorded by the Forum.Hence, issue of process of NBW to the accused does not arise.Here the accused named is the President and Secretary, against whom, there is no order. Order is against Society and not against the President & Secretary.
8.The Decree Holder never filed the Complaint stating that this President or Secretary are in any way responsible to answer the claim in the order.Hence, the entire proceedings done is Ab-initio-void.This is the order of the Hon’ble High Court in the above said Writ Petition.
9.As the matter is referred to the Deputy Commissioner, Decree Holders may prosecute their remedy before the Deputy Commissioner for early execution for recovery of the money.If the Deputy Commissioner recovers money and sends it to this Forum, then the amount will be paid to the concerned Decree Holders.
10.Further in any criminal case instituted on private complaint, the Complainant shall be present before the Forum on every day of hearing unless he is exempted.
11.It is seen that in E.P. Nos. 45/2010, 48/2010, 51/2010, 52/2010, 53/2010, 67/2010, 68/2010, 69/2010 & 71/2010, the Decree Holders were absent.Hence, u/s. 256 of CrPC, those Execution Petitions have to be closed.Be that as it may.
12.As the Executions have been sent to the Deputy Commissioner as u/s. 25 of the C.P. Act, Complainants can receive the money after Deputy Commissioner recovers money and sends it to the Forum.For that, we need not keep the Execution pending.As the Complainants have not filed any Complaint u/s. 200 CrPC r/w. 27 of C.P. Act nor Court had recorded sworn statement, proceeding further in the matter does not arise.After disposal of the matter by the Deputy Commissioner, if the Decree Holders are aggrieved, they may move the Complaint for the offence punishable u/s. 27 of C.P. Act if need be or seek fresh Execution, ifadvised and if entitled to, for that, this Order will not come in the way.Hence, we pass the following order:
ORDER
Pay the amount as and when received from the Deputy Commissioner.FILE.
Dictated to the Stenographer, got it transcribed and corrected and pronounced in the open Forum this the 3rd April 2012.
T. NAGARAJAK.G.SHANTALAH.V. RAMACHANDRA RAO
MemberMemberPresident
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