Punjab

StateCommission

FA/147/2014

N.S.PAWAR-M.D. - Complainant(s)

Versus

RAGHBIR SINGH - Opp.Party(s)

DINESH GHAI

12 Jun 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,    PUNJAB

            DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

   First Appeal No.147 of 2014                                                    

Date of institution  :    19.02.2014   

Date of decision     :    12.06.2015

 

N.S. Pawar, Managing Director, Sheen Finance and Investment (India) Ltd., Registered Office: Sheen Bhawan, 243, Canal Road, Jammu.

….Appellant

Versus

1.      Raghbir Singh son of Sadhu Singh R/o Village Akhwana, P.O.         Gho, Tehsil and District Pathankot.        

                                                          .…Respondent/Complainant

2.      Sheen Agro and Plantation, through its Branch Manager,        Rattan Chand, Branch Office, Jugial, Tehsil and District        Pathankot. 

3.      Rattan Chand Bhuri, Present Branch manager, Sheen Finance        and Investment (India) Ltd. Main Market (Jugial), Tehsil and District Pathankot.

4.      Angrej Singh Bhadwal son of Romal Singh, R/o 16-F, Guraha          Bakshi Nagar, Jammu (J&K) Chief Executive Officer, Sheen         Finance and Investment Ltd. and Sheen Agro and Plantation Ltd.

5.      D.S. Pathania, Whole Time Director, Sheen Finance and         Investment (India) Ltd., Head Office Sheen Bhawan, 243,          Canal Road, Jammu.

                             Proforma Respondents/Opposite Parties Nos.1 to 4

First Appeal against the order dated 23.01.2014 of the District Consumer Disputes Redressal Forum, Gurdaspur.

Quorum:- 

 

          Hon’ble Mr. Justice Gurdev Singh, President

                        Mr. Vinod Kumar Gupta, Member

Present:-

          For the appellant       :        None

          For the respondents           :        Ex parte

JUSTICE GURDEV SINGH,  PRESIDENT :

 

                    The appellant N.S. Pawar, Managing Director, Sheen Finance and Investment (India) Ltd., has preferred this appeal against the order dated 23.01.2014 passed by District Consumer Disputes Redressal Forum, Gurdaspur (in short, “District Forum”) in E.A. No.79 of 2012 titled “Raghbir Singh Vs. Sheen Agro and Plantation Ltd. and Others”.      

2.           The fact, in brief, are that Raghbir Singh, respondent No.1/complainant filed complaint (C.C. No.71 of 2012) against Sheen Agro and Plantation, through its Managing Director; Rattan Chand Bhuri, Branch Manager; Angrej Singh Bhadwal, Chief Executive Officer; and D.S. Pathania, Whole Time Director of the said concern, before District Forum, Gurdaspur, under Section 12 of the Consumer Protection Act, 1986 (in short, “the Act”). That complaint was decided, along with C.C. No.61 of 2012 titled “Suresh Kumar Vs.  Sheen Agro and Plantation and Others” and C.C. No.62 of 2012 titled “Raj Kumar and Another Vs. Sheen Finance & Investment (India) Ltd.”, vide order dated 19.06.2012. The complaint of Raghbir Singh was allowed with Rs.2,000/-, as litigation expenses and respondent Nos.1 to 4 were directed to pay the invested amount of Rs.50,000/- to the complainant, along with interest at the rate of 12% per annum with monthly rests from November, 2007 till the realization of that amount. For the execution of that order, the complainant filed application under Sections 25 and 27 of the Act, by detaining the respondents in prison and by imposing fine upon them.  The notice of the application was given only to respondent No.1 (Sheen Agro and Plantation, through its Managing Director) and respondent No.4 (D.S. Pathania) to show cause why they be not sent to imprisonment for non-compliance of the order. Though the notices so issued were received back undelivered due to the incorrect addresses of the said respondents, yet the District Forum issued Bailable Warrants against them. Bailable Warrant was issued against Nasib Singh Pawar, as M.D. of “Sheen Finance and  Investment (India) Ltd.”. The warrant was duly executed against him, but he failed to appear before the District Forum and as a result thereof, Non-bailable Warrants were issued. Thereafter, he put in his appearance before the District Forum and was asked to comply with the order. On 23.08.2013, he made a statement that he would pay the entire amount on the next date. He did not come present on the next date and an application was filed for the exemption of his personal appearance and the same was allowed. Again on the adjourned date, he did not come present and application was filed for exempting his personal appearance, which was allowed and it was made clear that in case he failed to comply with the order passed in the complaint and non-production of the copy of the stay order, the District Forum would pass the order as deemed fit. Thereafter, the application was adjourned for compliance of the order to 30.09.2013. The order was not complied with, nor Nasib Singh Pawar appeared before the District Forum on the adjourned date. However, his counsel placed on record the copy of the order dated 24.09.2013 passed by this Commission, vide which the Revision Petition filed against the order, vide which the Non-bailable Warrants were issued against Nasib Singh Pawar, was dismissed having become infructuous and he was asked to produce the order dated 04.09.2013 of the Hon’ble High Court of Jammu and Kashmir before the District Forum and it was directed to pass the appropriate order. Thereafter, the District Forum adjourned the application to 08.10.2013 for passing the appropriate order. After going into the order passed in the Revision Petition and the said order of the Hon’ble High Court of Jammu and Kashmir, it passed the order on 08.10.2013, vide which N.S. Pawar was again directed to comply with the order passed in the complaint in totality and to confirm the compliance by remaining present in person on 22.10.2013. He did not appear on that date and again the application was adjourned for compliance of the order to 07.11.2013. Finally, the impugned order was passed on 23.01.2014, vide which N.S. Pawar was sentenced to undergo Rigorous Imprisonment for a period of one year and to pay fine of Rs.5,000/- and failing that, to undergo imprisonment for a period of two months. He was directed to be released from custody in case of the deposit of the amount as awarded, vide order dated 19.06.2012.
3.           No one appeared on behalf of the appellant (N.S. Pawar) at the time of arguments.
4.           The present case is a glaring example of non-application of mind by the District Forum and total ignorance of law regarding the prosecution of the Incorporated Companies and the imposing of sentence under Section 27 of the Act.  The perusal of the order dated 19.06.2012 itself shows that the “Sheen Agro and Plantation” and “Sheen Finance and Investment (India) Ltd.” are two independent Incorporated Bodies and are two different juristic persons. Raghbir Singh had filed the complaint against “Sheen Agro and Plantation, through its Managing Director”, whereas Raj Kumar and another had filed the complaint against “Sheen Finance and Investment (India) Ltd.” According to Section 305 of the Code of Criminal Procedure, where a Corporation is the accused person or one of the accused persons in an inquiry or trial, it may appoint a representative for the purpose of inquiry or trial and such appointment need not be under the seal of the Corporation.  Thereafter, anything to be done, during the trial of or inquiry, is to be done in the presence of that representative. No such person was appointed as representative of respondent No.1-Corporation in the present case, after the application was filed under Section 27 of the Act.  The District Forum could have proceeded against respondent No.1 itself and/or its Managing Director. Firstly, Bailable Warrants were issued against Nasib Singh Pawar, as M.D. of “Sheen Finance and Investment (India) Ltd.” and thereafter Non-bailable Warrants were issued against him, without taking into consideration that the order had been passed against “Sheen Agro and Plantation Ltd.” and not against “Sheen Finance and Investment (India) Ltd.”. This Commission, while disposing of the above said Revision Petition, made it clear that Nasib Singh Pawar shall produce the order dated 04.09.2013 passed by the Hon’ble High Court of Jammu and Kashmir and the District Forum shall pass the appropriate order, and that order was duly produced before it. Had it cared to go through that order, it must have come to know that Nasib Singh Pawar was not the Managing Director of  “Sheen Agro and Plantation Ltd.” and he was Managing Director of the other Corporation; namely, “Sheen Finance and Investment (India) Ltd.”. One affidavit dated 08.08.2013 finds mention in Para No.5 of that order, which was filed by Ajit Lal S/o Lafa Ram, as the Managing Director of “Sheen Agro and Plantation Ltd.”. It is very much clear from Para No.8 of that order that Nasib Singh Pawar was the Managing Director of “Sheen Finance and Investment (India) Ltd.” and not of the “Sheen Agro and Plantation Ltd.”. Therefore, he could not have been summoned in the application under Section 27 of the Act; which was against “Sheen Agro and Plantation Ltd.”.
5.           On the day the impugned order was passed, the above said order of the Hon’ble High Court of Jammu and Kashmir was in force and it was in the form of the restraint order. The Managing Director and Directors of both the said Companies and the third Company had been restrained from entering into any transaction with regard to moveable or immovable properties available in the books of accounts and any other liquid cash available in the accounts of the three Companies.  It if was so, respondent No.1 could not have been directed to pay the amount awarded, vide order dated 19.06.2012, till that restraint order had been vacated. During the enforcement of that order, it could not have been said that respondent No.1 was not complying with the said order intentionally.
6.           The other illegality committed by the District Forum was that it convicted and sentenced N.S. Pawar in his absence and by not following the procedure, while passing the conviction and sentence. According to Sub Section (3) of Section 27 of the Act, the offence was to be tried summarily and the summary procedure, which was to be followed by the District Forum, is laid down in CHAPTER XXI of the Code of Criminal Procedure (Sections 260 to 265). That procedure was never followed, while passing the conviction and sentence. It is well established law that while dealing with the penal provisions, the procedure laid down must be strictly followed; as that involves the liberty of an individual.
7.           In view of the above discussion, the order dated 23.01.2014 passed by the District Forum cannot be sustained and is liable to be set aside. Accordingly, the appeal is allowed and the said order is set aside. The District Forum is directed to proceed with the application under Section 27 of the Act, strictly in accordance with the procedure laid down in the Act and by keeping in view the order passed by the Hon’ble High Court of Jammu and Kashmir in WPPIL No.4 of 2013/Miscellaneous Applications filed in that Writ Petition.         
8.           The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

 

                                                         (JUSTICE GURDEV SINGH)

                                                                                                                                                                                     PRESIDENT

 

                                                           (VINOD KUMAR GUPTA) 

                                                                  MEMBER

                                                         

June 12, 2015                                              

(Gurmeet S)