HON'BLE MR. JUSTICE R.C. JAIN ,PRESIDING MEMBERHON'BLE MR. SURESH CHANDRA ,MEMBER
For the Appellant :
NEMO
For the Respondent :
NEMO
Dated : 03 Aug 2010
ORDER
These appeals are directed against the order dated 22.2.2008 passed by the Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal (in short, the State Commission) in complaint case No. 28 of 2001. By the impugned order, the State Commission had partly allowed the complaint filed by the complainant Smt. Rajni Moolchandani with the following directions:- In the result we allow the complaint in part and to the extent indicated above. The opposite party-Bank is directed to pay to complainant Rs.35,859/- with interest @13.5% with monthly rests from 19.5.1999 till payment. The complainants C.C. account with opposite party-Bank shall stand closed as on 19.5.1999 and all the credit debit entries after that date cancelled. Opposite party-Bank shall also pay to complainant Rs.10,000/- as cost. 2. It would appear that after passing of the said order, both the sides i.e. the complainant as well as the Bank, had accepted the said order and in compliance of the directions given by the State commission and during the course of execution proceedings, Bank had paid a sum of Rs. 1,33,508/- to the complainant vide demand draft dated 4.8.2008. Despite having received this payment, the complainant persisted with the execution application as in her reckoning she was entitled to the sale proceeds of 1600 shares rather than 800 shares as was directed by the State Commission. After protracted hearings, the execution case No. 203 of 2008 was disposed of by the State Commission by an order dated 24.03.2009, which reads as under:- This execution has been filed against the order dated 22.2.2008 passed by this Commission. In respect of the grievance of the petitioner that he had 1600 shares to sell, the Commission awarded only for 800 shares. We are of the opinion that the matter should have been raised at the time when the order had been pronounced. This Commission in paragraph-4 has held as under:- In the result we allow the complaint in part and to the extent indicated above. The opposite party-Bank is directed to pay to complainant Rs.35,859/- with interest @13.5% with monthly rests from 19.5.1999 till payment. The complainants C.C. account with opposite party-Bank shall stand closed as on 19.5.1999 and all the credit debit entries after that date cancelled. Opposite party-Bank shall also pay to complainant Rs.10,000/- as cost. Learned counsel for the respondent-Bank Shri Taunk submits that the order has been complied with already and a sum of Rs.1,33,508/- has been paid to the petitioner-complainant. The petitioner, however, submits that C.C. account with the Bank has been closed as on 19.5.1999, the balance 800 shares had been jeopardized and the petitioner is not in a position to recover the amount from the Bank with respect to balance 800 shares. In execution, we cannot go beyond what has been allowed by this Commission. Under these circumstances, we dismiss the execution application, with no order as to costs. 3. It would further appear to us that after passing of the said order, the complainant realized that she should have challenged the main order dated 22.2.2008 passed by the State Commission in the complaint and, accordingly, she filed appeal bearing No. 164 of 2009 purportedly under Section 27-A of the Consumer Protection Act, 1986 with the prayer that the order of the State Commission dated 22.2.2008 be modified by directing the respondent-Bank to make further payment of Rs. 10,81,498/- with interest @ 19.85% from 19.5.1999 and differences of earlier amount as calculated at the interest rate of 19.85% per annum (should be 13.05% per annum), which amounts to Rs.66,781.67 and further a sum of Rs. 5 lakh towards physical strain and mental agony. It is pertinent to note that although the order sought to be modified was dated 22.2.2008, the appeal was filed only on 24.4.2009 i.e. after a delay of more than one year seeking condonation of delay in filing the said application. Notice on the application for condonation of delay and in appeal No. 164 of 2009 was issued to the respondent-Bank and in response to the same, they have not only filed reply to the memorandum of appeal filed by the original complainant but have also filed a cross appeal bearing No. 179 of 2010 titled as UCO Bank vs. Rajni Moolchandani alongwith an application for condonation of 816 days delay. Both the appeals were clubbed for the purpose of hearing and disposal. On request of the complainant-appellant, Smt. Rajni Moolchandani, Mr. Atul Nanda, Advocate was appointed as amicus curiae to assist the Commission in these appeals. 4. We have heard Mr. Atul Nanda, Advocate Amicus Curiae for the appellant-Mrs. Rajni Moolchandani in first appeal No. 164 of 2009 and Mr. Rajesh Singh, learned counsel representing the respondent-UCO Bank and have given our thoughtful consideration to their respective submissions. 5. Before we proceed to dwell on the merits of these appeals, we consider it expedient to decide the applications moved by the complainant and the Bank seeking condonation of delay in filing their respective appeals. In the application filed by the complainant, it is stated that the appeal could not be filed as the respondent-Bank deliberately did not comply with the order passed by the State Commission for more than eight months and, therefore, she was forced to file the execution application in the State Commission and only then the order of the State Commission was complied with. It was also stated that the complainant has been sick for sometime and a certificate of a doctor from Suyash Hospital Private Limited has also been filed alongwith application, certifying that the complainant has been suffering from depression from 7th August to 8th August. Nowhere the certificate mentions the year in which the complainant was sick. Even if we presume that the complainant was sick for two days during the month of August, 2008, still the complainant has not given any reason for not filing the appeal immediately after she recovered from her said ailment uptill the end of 2008. The reason is not for to seek and is apparent from a number of ordersheets passed by the State Commission from time to time between December 2008 till March, 2009 in execution case No. 203 of 2008, which would show that the appellant was pursuing the execution and respondent contesting the same with all weight at their command. This in turn would show that both the sides had accepted the order dated 22.2.2008 passed by the State Commission; the complainant by filing the execution application for enforcement of the said order and the opposite party-Bank by paying the entire amount payable under said order. After having done so, we are at a loss to understand as to for what reasons, the parties were prompted to file the present appeals. The only explanation which we can envisage is the order dated 24.3.2009 passed by the State Commission in culmination of the execution proceedings though not specifically under challenge before us but by prefacing the appeal under Section 27 A of the Consumer Protection Act, it appears that the complainant wanted to file the appeal against the said order dated 24.3.2009 passed by the State Commission in execution case No. 203 of 2008 but in the prayer clause, the prayer was made for modification of the order dated 22.2.2008 passed in the original complaint. Similarly, in the application for condonation of delay filed in the appeal bearing No. 179 of 2010 by the Bank, no reason is given except that on receipt of the notice of the appeal filed by the complainant, Bank obtained a legal opinion to the fact that the order dated 22.2.2008 passed by the State Commission in the original complaint need to be challenged lest it constitutes precedent for future. In our opinion, neither of the application filed by the parties discloses any satisfactory reason on the strength of which they can seek condonation of delay. It would appear to us that these applications and appeals filed before this Commission are nothing but abuse of the process of law and this Commission, the order dated 22.2.2008 passed by the State Commission has been fully complied with by the bank. In the result, the applications seeking condonation of delay in filing the appeals are hereby dismissed. Consequently, appeals are also dismissed. No order as to costs in these proceedings.
......................JR.C. JAINPRESIDING MEMBER ......................SURESH CHANDRAMEMBER
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