SRI SUBHRA SANKAR BHATTA, PRESIDING MEMBER
The instant Appeal u/s 27A of the Consumer Protection Act, 1986 (hereinafter referred to as ‘The Act’) has been preferred at the instance of the Appellants/JDrs challenging the impugned order dated 25.03.2019 passed in Miscellaneous Application no. 169/2018 [arising out of EA no. 50/2018] by the District Consumer Disputes Redressal Forum, North 24 Parganas, Barasat whereby the Ld. DCDRF, North 24 Parganas, Barasat was pleased to pass the order in the following manner:
“We have carefully perused the content of the application. The Ld. Counsel for the JDrs has also advanced argument on this application. In our view though the JDrs have prayed for exemption from making payment of the punitive charges by them as directed by the Ld. Forum in the judgment passed in the C.C. no. 636/2015, but in our view the settled law is that the Executing Forum/Court cannot go beyond the decree. It is the only duty of the Executing Forum/Court to execute the decree/order passed by the Forum/Court. Therefore having no power for exemption/waiving the JDrs from making payment of the punitive damage by them, the application filed by the JDrs has no merit at all and it should be dismissed.
Going by the foregoing discussion hence it is ordered that the MA being no. -169/2019 is hereby dismissed without any cost.
Fix 29.03.2019 for compliance of the remaining portion of the judgment dated 11.07.2016 by the JDrs positively.
Let plain copy of this order be given to the parties free of cost as per the provision of the CPR, 2005.”
Being aggrieved by and dissatisfied with the above order of the Ld. Forum below the JDrs as Appellants have preferred the present Appeal invoking Section 27A of the said Act contending inter alia that the impugned order passed by the Ld. District Forum is misconceived, erroneous and contrary to law; the Ld. Forum below has totally failed to exercise its jurisdiction vested on by law; that the Ld. Forum below has also failed to appreciate the facts and circumstances of the case; that the Ld. Forum below has passed the impugned order impugned order ignoring the decided legal proposition and principles, that the Ld. District Forum below ought to have considered the observations of the Hon`ble Apex Court over the issue of punitive damages; that the Ld. Forum below failed to appreciate that punitive damages cannot be allowed if not claimed by the Complainant. On all such grounds the JDrs/Appellants herein have prayed for allowing the present Appeal after setting aside the impugned order.
Considered the submissions of the Ld. Counsel representing the Appellants.
Despite service of notice Respondent/Complainant did not turn up to contest the present appeal. Consequently, the appeal was proceeded ex parte pursuant to order dated 1st June, 2022 vide order no. 9.
By way of present appeal u/s 27A of the said Act the JDrs/Appellants have prayed for setting aside the impugned order dated 25.03.2019 passed in connection with MA/169/2019 arising out of the EA no. 50/2018.
At the very outset of discussion it is very important to mention the provisions of Section 27 and 27A of the said Act. Section 27 and Section 27A of the said Act provide as follows:-
“27 penalty for non-compliance of order- (1) where a trader or a person against whom a complaint is made or the Complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be such trader or person or Complainant 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 two thousand rupees, but which may extend to ten thousand rupees, or with both.”
Section 27A of the Consumer Protection Act, 1986 envisages as follows:-
“27A Appeal against order passed under Section 27.-
(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-
(i) The order made by the District Commission to the State Commission;
(ii) The order made by the State Commission to the National Commission; and
(iii) 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) …………………………..,”
From the conjoint reading of Sections 27 and 27A of the said Act it is crystal clear that an Appeal under Section 27A can only lie before the State Commission on facts and law if an order of conviction and sentence is passed under Section 27(1) 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 challenging an order passed by Ld. DCDRF, North 24 Parganas, Barasat in EA/50/2018 arising out of CC/636/2015 whereby Ld. Forum below was pleased to dismiss the Miscellaneous Application filed at the instance of the JDrs. It has been categorically observed by the Ld. Forum below that “in our view though the JDrs have prayed for exemption from making payment of the punitive damages as directed by the Ld. Forum in the judgment passed in CC No. 636/2015 but in our view the settled law is that the executing Forum/Court cannot go beyond the decree. It is the only duty of the executing Forum/Court to execute the decree/order passed by the Forum/Court therefore, having no power from exemption/waiving the JDrs from making payment of the punitive damage. The application filed by the JDrs has no merit at all and it should be dismissed.
Apparently, no order of sentence and imprisonment has been assailed before this Commission and has not also been brought on record from the end of the JDrs/Appellants. Thus being the position of law we hold and firmly hold that the present Appeal u/s 27A of the C.P. Act, 1986 is not maintainable and tenable in the eye of law.
During the course of hearing Ld. Counsel representing the Appellants/JDrs has cited a decision reported in 2016 (4) CPR 165 (NC) [Senior Divisional Manager, New India Assurance Company Ltd….(Petitioner)—Vs.—Dr. Debabrata Majumdar and Ors….(Respondents)] Revision Petition no. 1984 of 2016 and boldly argued that the Hon’ble National Commission was pleased to hold that the State Commission was not justified in ordering the punitive damages of Rs. 50,00,000/- against the OP/Appellant Bank. According to the Ld. Counsel the said decision of the Hon’ble National Commission is applicable in the present case. It is to be borne in mind that the Ld. District Forum passed the impugned order in Misc. Application no. 169/2019 arising out of Execution Application no. 50/2018. The Ld. District Forum was pleased to pass judgment and order on 11.07.2016 in consumer Complaint Case no. 636/2015 whereby the complaint was allowed against the OPs/JDrs/Appellants and certain directions were given. After the expiry of stipulated period the Decree Holder Respondent filed the Execution Application for compliance of the final order passed in the complaint case. In the Miscellaneous Application being MA no. 169/2019 the JDrs/present Appellants prayed for exemption from making the payment of punitive damages. Undoubtedly, the present Appellants/JDrs did not challenge the final order passed in the original complaint case. It is the settled principle of law that the Executing Court cannot travel beyond the decree/order. Consequently, the Executing Court has no power to exempt or waive the JDrs/Appellants from making payment of the punitive damages. The cited decision is not applicable in the present facts and circumstances of the case. The facts and circumstances of the cited decision and the facts and circumstances of the present case is different and not alike in nature.
On meticulous perusal of the impugned order I find that the Ld. District Forum was pleased to dismiss the MA no. 169/2019 filed at the behest of the JDrs/Appellants arising out of EA no. 50/2018. Practically, no penalty was imposed by the impugned order. Question of Appeal u/s 27A of the said Act does not arise at all. Moreover I do not find any illegality or irregularity on the impugned order of the Ld. Forum below.
Considering all aspects from all angles and keeping in mind the submission of the Ld. Counsel representing the Appellants and regard being had to the clear position of law I hold and firmly hold that the present Appeal is not at all maintainable in the eye of law and as such liable to be dismissed in limini.
In my considered view the impugned order passed by the Ld. DCDRF, North 24 Parganas at Barasat does not deserve interference of this Appellate Commission. In fact, there is no scope for challenging such an order passed in the Execution proceeding before the Appellate Commission taking the aid of Section 27 of the Act.
Resultantly, the present Appeal fails.
Hence,
O R D E R E D
That the present Appeal being No. A/373/2019 be and the same is dismissed ex parte but considering the circumstances without any order as to costs.
The order dated 25.03.2019 passed by the Ld. DCDRF, North 24 Parganas at Barasat in MA/169/2018 arising out of EA/50/2018 is hereby affirmed.
Interim Stay, if any, be vacated forthwith.
Let a copy of this order be transmitted to the Ld. Forum below at once for information and taking necessary action.
Let a plain copy of this order be supplied free of cost.
Thus, the Appeal stands disposed of.
Note accordingly.
