CONSUMER DISPUTES REDRESSAL COMMISSION – X

GOVERNMENT OF N.C.T. OF DELHI

Udyog Sadan, C – 22 & 23, Institutional Area

(Behind Qutub Hotel)

New Delhi – 110016

                                                         Execution No.09/2020

1. SH. BHAG SINGH GAMBHIR

R-12, GREATER KAILASH, PART-I

NEW DELHI -110048

2. MRS. JASBIR KAUR

W/O SHRI BHAG SINGH GAMBHIR

R-12 GREATER KAILASH, PART-I,

NEW DELHI-110048…..COMPLAINANTS      

Vs.

1. M/S R. KANT AND COMPANY
2. MR. R. KANT
3. CAPT. GOVIND KANT

E/12A, EAST OF KAILASH, NEW DELHI

ALSO AT:-

407, VISHAL BHAWAN,

95, NEHRU PLACE, NEW DELHI-11001..….RESPONDENTS

        Date of Institution-11/12/2020

        Date of Order-02/05/2022.

  O R D E R

MONIKA SRIVASTAVA– President

This order shall dispose of the objection cum application under section 340 and 344 Cr PC filed by the Judgment debtor (JD)-M/s R Kant and Company. The Decree Holders (DH)-Shri Bhag Singh Gambhir and Smt. Jasbir Kaur instituted an execution petition to execute an order passed by this Commission on 29.09.2018. The order dated 07.10.2021 records that despite service of summons of the present execution proceedings the JD did not join the proceedings, consequently, vide order dated 29.11.2021 this Commission directed the banker of the JD i.e M/s Kotak Mahindra Bank having its branch office at Karol Bagh to attach account no. 530011001207 for a sum of Rs. 30,42,179/- and inform this Commission about compliance of this direction. M/s Kotak Mahindra Bank vide letter dated 20/12/20221 informed this Commission that they have marked a lien of Rs. 30,42,179/- and further balance of Rs.30,481.83/- is available in the account of the JD.

JD filed its objection to the execution and attachment on 20/1/2022 wherein it was inter-alia prayed that enquiry should be made into the offence punishable under Sections 192, 193, 195 and 196 of Indian Penal Code 1860 and proceedings under Section 340 read with Section 344 Cr PC be initiated for making false averments while filing and prosecuting the present execution petition; punitive damages be awarded against the DH, recall the order of attachment dated 29.11.2021 and direct the DH to accept a sum of Rs. 27,89,166/- which was the amount offered by the JD vide its letter dated 25.10.2018.

Following are the important dates which have bearing on this case:

According to the JD, the false averment made by JD are twofold. The first being the DH did not disclose about the letter dated 25.10.2018 of JD whereby he called up the DH to return the original documents of the property in question. The second being the DH did not, in its execution petition, inform this Commission that they have impugned the order dated 17.03.2020 passed by the SCDRC before the Hon’ble NCDRC.

 Section 71 of Consumer Protection Act of 2019 is categorical that the provisions of Order XXI of Code of Civil Procedure 1908 shall be applicable to the proceedings before this Commission. Section 71 is reproduced herein below:

71. Every order made by a District Commission, State Commission or the National Commission shall be enforced by it in the same manner as if it were a decree made by a Court in a suit before it and the provisions of Order XXI of the First Schedule to the Code of Civil Procedure, 1908 shall, as far as may be, applicable, subject to the modification that every reference therein to the decree shall be construed as reference to the order made under this Act.

Colum 4 of the execution petition filed by the DH required the DH to answer to the question “whether any appeal/revision has been preferred from the decree”. Undoubtedly, the DH replied to the said question in negative whereas he had filed an appeal against the order before SCDRC which was dismissed. The grievance of the JD however is that DH did not disclose about the pendency of the Revision Petition before the Hon’ble NCDRC. This Commission does not find any illegality in the statement made by the DH regarding the pendency of the Revision Petition because on the date of filing of execution petition the Revision Petition was not filed. It is evident from the dates above that Revision Petition was filed on 27.01.2021 while the execution petition was filed on 11.12.2020. Non-disclosure of filling of appeal before SCDRC is inconsequential besides being un-intentional and challenged by the JD.

Regarding the offer of the JD vide letter dated 25.10.2018 calling upon to handover original documents and collect the amount awarded by CDRF, this Commission notes judgment debtor though served of the present proceedings on 3^rd February 2021 elected to not participate in the present proceedings until the order of attachment was passed by this Commission. Such a conduct exposes the attempt of JD to masquerade as a sincere judgment debtor who was more than willing to pay the awarded amount. This Commission also notes that if JD was sincere in his attempt to pay up the awarded amount it could have easily deposited the money with this Commission in terms of Order XXI rule 1 of Code of Civil Procedure 1908.

An objection to an order of attachment must satisfy the requirement of Order XXI Rule 58 of Code of Civil Procedure 1908, which as a pre-requisite requires that the property which was attached should not be liable to attachment. The JD in its application has not pleaded any reason as to why its bank account should not be attached. It is also not its case that the bank account which was attached did not belong to the JD therefore objection failing in meeting the parameters of Order XXI rule 58 are dismissed.

JD has relied upon a judgment of the Hon’ble Supreme Court in the matter of New Okhla Industrial Development Authority vs Ravindra Kumar Singhvi 2022 SCC online SC 186 to contend enquiry should be initiated against DH under section 340 Cr PC for failing to disclose about institution and pendency of revision petition before Hon’ble NCDRC. It is argued that affidavits filed are not mere sheet of paper but a solemn statement made before a person authorized to administer oath or accept affirmation. They have also relied upon another judgment of Hon’ble Supreme Court in the matter of In Re Suo Motu proceedings against R. Karuppan Advocate (2001) 5 SCC 289 to contend that an affidavit in evidence within the meaning of Section 191 of the Indian Penal Code 1860 and a person swearing a false affidavit is guilty of perjury punishable under Section 193 Cr PC.  This Commission, however, is of the view that above cases are not applicable to the present proceedings because the DH on the date of filing of execution petition had not instituted the Revision Petition before NCDRC therefore the affidavit filed in support of the petition is not false. No case of perjury would be made out if the affidavit has failed to disclose an event which was not in existence on the date of filing affidavit. No doubt, the DH failed to disclose about filing and dismissal of appeal before the SCDRC in the execution petition, but this Commission does not consider it expedient in the interest of justice that a complaint should be made because non-mentioning about filing of appeal before SCDRC is neither agitated by the JD nor is consequential in any way in the present proceedings.

The DH is entitled to interest @ 9% till the date of realization in terms of the order of the Commission. The DH has filed an interest computation sheet and made a statement on 22.11.2021 that the total amount payable till that date is Rs. 30,42,179/- on which amount a lien has been created by Kotak Mahindra Bank. Since the complaint, was instituted by Shri Bhag Singh Gambhir and his wife Jasbir Kaur Gambhir i.e. DH1 and DH2, accordingly, Kotak Mahindra Bank. Karol Bagh branch is directed to release 50 per cent of the total attached amount i.e. 15,21,089/- by way of demand draft in favour of DH1 i.e. Shri Bhag Singh Gambhir and Rs. 15,21,089/- by way of demand draft in favour of Mrs. Jasbir Kaur Gambhir w/o Shri Bhag Singh Gambhir. Both the decree holders are required to provide their bank details along with supportive documents to the said bank within 1 week, so that the demand draft payable to both the decree holders may be handed over to them in the Commission. Decree holders are directed to file additional interest computation sheet for the balance amount due till now.

This order is been given Dasti to DH1 i.e. Shri Bhag Singh Gambhir on his request who will give the requisite details to the concerned bank branch.

Objections as also the application under section 340 Cr P C filed by JD are dismissed.

File be consigned to the record room after giving a copy of the order to both the parties. Order be uploaded on the website.

Objections as also the application under section 340 Cr P C filed by JD are dismissed.