KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NO: 231/2009 JUDGMENT DATED:06..05..2010. PRESENT SRI. M.V. VISWANATHAN : JUDICIAL MEMBER K. Sivadasan, Sivanparambil, : APPELLANT Vellakinar Ward, Alappuzha – 688 001. (By Adv:Sri.Koshy.P.J) Vs. 1.S. Balakrishnan Nair, Valia Veedu, Neerkunnam, Alappuzha Medical College.P.O, Alappuzha – 688 005. : RESPONDENTS 2. Kamalam.B.Nair, -do- -do- (By Adv:Sri.G.S.Kalkura) JUDGMENT SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER The above appeal is preferred from the order dated:25th March 2009 passed by CDRF, Alappuzha in EA:No:13/01 in CC.No:484/97. The appellant herein is the Judgment Debtor and the respondents 1 and 2 are the Decree Holders in the said EA:13/01 which was filed to get the order dated:30/6/2000 passed by the CDRF, Alappuzha in CC.No:484/97 executed and also to punish the judgment debtor by imposing penalties under sec.27 of the Consumer Protection Act, 1986. As per the order dated:30/6/2000 IN cc:484/97 the opposite party has been directed to pay the complainants a sum of Rs.2,13,183/- with interest at the rate of 18% per annum and compensation of Rs.5000/- and cost of Rs.1000/-. The appeal preferred by the opposite party against the said order was dismissed for default and the restoration petition filed was also dismissed by the State Commission. The complainants/decree holders filed EA:13/01 seeking the relief of imposing penalties on the opposite party/Judgment debtor as provided under Sec.27 of the Consumer Protection Act, 1986, as the opposite party/judgment debtor failed to comply with the order dated:30/6/2000 passed by CDRF, Alappuzha in CC:484/97. By the impugned order dated:25/3/2009, the Forum below found the judgment debtor as guilty under Sec.27 of the Consumer Protection Act and sentenced to undergo simple imprisonment for 3 years and to pay a fine of Rs.10,000/- to the decree holder with a default clause to undergo a further simple imprisonment for 3 months in case of default to pay the fine amount of Rs.10,000/-. It is against the said order the present appeal is preferred by the opposite party/Judgment debtor. 2. Notice in this appeal was served on the respondents/decree holders and they entered appearance through counsel of their choice. We heard the learned counsel for the appellant/judgment debtor and the respondents/decree holders. The learned counsel for the appellant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He canvassed for the position that impugned order dated:25/3/2009 passed by CDRF, Alappuzha in EA:13/01 is legally untenable and unsustainable and requested for setting aside the same. On the other hand, the learned counsel for the respondents/decree holders supported the impugned order passed by the Forum below. He also relied on the order dated:9/10/07 passed by the Hon’ble Highcourt of Kerala in Criminal MC No:1865/05 and submitted that the appellant moved the Hon’ble High Court to get the earlier order passed by the CDRF, Alappuzha in EA:13/01 cancelled and it is thereafter the present order has been passed by the Forum below. It is also submitted that the only attempt on the part of the appellant in preferring the present appeal is to delay the matter somehow or other and to avoid payment of he amount awarded by the Forum below in CC.No:484/97. Thus, the respondents prayed for dismissal of the present appeal. 3. The points that arise for consideration are:- 1. Whether the impugned order dated:25/3/2009 passed by CDRF, Alappuzha in EA.No:13/01 in CC:484/97 can be upheld? 2. Whether the case of the appellant that the impugned order has been passed by the Forum below without following the procedure prescribed in the Code of Criminal Procedure and under Sec.27 of the Consumer Protection Act, 1986 can be upheld? 4. Point Nos: 1 and 2:- There is no dispute that the appellant herein is the judgment debtor in EA:13/01 and the opposite party in CC.No:484/97 on the file of CDRF, Alappuzha. The respondents herein filed the aforesaid consumer complaint No:484/97 against the appellant as opposite party and that the CDRF, Alappuzha passed the order dated:30/6/2000 directing the opposite party to pay the complainants a sum of Rs.2,13,183/- with interest at the rate of 18% per annum from the date of the complaint till the date of realization with a further direction to pay compensation of Rs.5000/- and cost of Rs.1000/-. The aforesaid order passed by the CDRF, Alappuzha in CC:484/97 has become final. No appeal or revision is pending in the said matter. Thus, the said order dated:30/6/2000 in CC:484/97 has become final and the complainants therein being the Decree Holders moved the CDRF, Alappuzha by filing EA:13/01. 5. There is also no dispute that the decree holders moved the execution court (CDRF, Alappuzha) under section 27 of the Consumer Protection Act, 1986. Admittedly the CDRF, Alappuzha passed an earlier order under sec.27 of the Consumer Protection Act, 1986 and thereby warrant was ordered against the judgment debtor in EA:13/01. The judgment debtor (appellant herein) took up the matter by filing criminal MC No:1865/05 before the Hon’ble High Court of Kerala and that the said order was set aside by the High Court vide order dated:9th October 2007 passed in criminal MC No:1865/05. The earlier order directing issuance of warrant against the judgment debtor was set aside on the ground that no order imposing penalty under section:27(1) of the Consumer Protection Act, 1986 was passed by the Forum below. It is thereafter the Forum below passed the impugned order dated:25/3/2009. 6. A perusal of the impugned order dated:25/3/2009 in EA:13/01 would make it abundantly clear that the Forum below afforded sufficient opportunity to the appellant/judgment debtor in the matter and the said order has been passed after following the provisions contained in Criminal Procedure Code. The judgment debtor being the accused in the said proceedings was also questioned under Sec.313 of the Code of Criminal Procedure. It is also to be noted that charge was also framed against the judgment debtor and thereby he was found guilty of not complying with the order dated:30/6/2000 passed by CDRF, Kozhikode in CC:484/97. The Forum below has also imposed penalty upon the appellant/judgment debtor as provided under Sec.27 of the Consumer Protection Act, 1986. There is no irregularity or illegality in the impugned order passed by the Forum below in EA:13/01. 7. The appellant has got a case that the Forum below acted so enemically against the appellant in passing the impugned order and that the Forum below imposed the maximum penalty provided under Sec.27 of the Consumer Protection Act, 1986. It is also pointed out that the Forum below on an earlier occasion had only imposed penalty of one year with fine of Rs.1000/-. It is to be noted that the earlier order imposing imprisonment for a period of one year and fine of Rs.1000/- was passed without following the procedures envisaged under law. The aforesaid order has been set aside by the Hon’ble High Court vide order dated:9/10/2007 in Criminal MC:1865/05. Thus, in the eye of law there is no such order in existence. There is no legal bar in imposing fresh penalty of imprisonment for a period of 3 years with fine of Rs.10,000/-. It is to be noted that the order in CC:484/97 was passed on 30/6/2000 and that the EA:13/01 filed to get the order executed is still pending. The judgment debtor tried his level best to avoid compliance of the order passed in CC:484/97. The penalty imposed by the Forum below can be treated as just ad reasonable. 8. The appellant has also got a case that he was not given sufficient opportunity to defend his case. On a perusal of the impugned order and the proceedings of the Forum below would make it clear that the appellant/judgment debtor was given sufficient opportunity to defend his case in EA:13/01. The further case of the appellant that he filed a petition under section:311 of CRPC to reopen the evidence cannot be accepted. There is nothing on record to show that the appellant filed any such petition before the Forum below under section 311 of Cr.P.C. It can be concluded that the said grounds are urged without any bonafides. 9. The appellant would contend that he was not provided with free copy of the impugned order and the appellant got the certified copy of the impugned order by submitting application for the same. But that cannot be taken as a ground to hold the impugned order as not maintainable. 10. The appellant has also got a case that the Forum below has not convicted the judgment debtor being the accused and the sentence passed without a conviction is legally unsustainable. The impugned order would make it clear that the judgment debtor being the accused in the criminal proceedings was found guilty to the charge levelled against him and thereby he was sentenced as provided under sec.27 of the Consumer Protection Act. It is to be borne in mind that sec.27 of the Consumer Protection Act empowers the District Forum, the State Commission or the National Commission to impose penalties for the failure or omission to comply with any order passed by the said agencies constituted under the Consumer Protection Act. The fact that the judgment debtor did not comply with the order dated:30/6/2000 in CC:484/97 is sufficient enough to impose penalty under section 27 of the Consumer Protection Act, 1986. Thus, the penalty imposed by the Forum below under Sec.27 of the Consumer Protection Act, 1986 is legally sustainable and the challenge against the said order is unsustainable. 11. The appellant has requested for payment of the amount awarded in CC:484/97 by way of monthly instalments. The said prayer was not allowed by the Forum below. It is to be noted that the appellant/judgment debtor had ample time and opportunity to discharge the decree debt in CC:484/97. But, even after the lapse of 10 years the judgment debtor could not discharge the decree debt in CC:484/97. So, the said prayer for payment of the awarded amount by instalments cannot be allowed and the Forum below has rightly disallowed the said prayer. 12. The appellant/judgment debtor has also contended that he is not having sufficient means to discharge the decree debt in CC:484/97. It is to be noted that the Forum below considered the aforesaid plea of no means and it has been held that the judgment debtor is having the means to pay the decree debt. The aforesaid finding regarding the means of the judgment debtor has been referred to in the impugned order. More over, the impugned order has been passed under section-27 of the Consumer Protection Act 1986. The aforesaid procedure was followed by invoking the jurisdiction and authority of judicial magistrate of first class. As far as the proceedings under section 27 of the Consumer Protection Act is concerned, the issue regarding means of the accused does not arise for consideration. This commission had already taken the view that the contention of no means has no relevance as far as the proceedings under sec.27 of the Consumer Protection Act is concerned. The aforesaid view has been taken by this state commission in the order dated:7/7/09 passed in revision petition Nos:30/09 and 31/09. So, the aforesaid ground urged by the appellant is unsustainable. 13. The appellant has a further case that there is no provision under the Consumer Protection Act to impose default sentence. It is true that the Forum below has passed default sentence and thereby the judgment debtor is directed to undergo simple imprisonment for a further period of 3 months in the event of failure to pay the fine amount of Rs.10,000/-. It is to be noted that the Forum below passed the order under sec.27 of the Consumer Protection Act, 1986 by invoking the power of judicial magistrate of first class. By virtue of the provisions of subsection-2 of Sec.27 of the Consumer Protection Act, 1986 the power of a Judicial Magistrate of First Class is conferred on the District Forum. There can be no doubt that a Judicial Magistrate of First Class is competent to pass default sentences. Sec.30 of the Code of Criminal Procedure, 1973 stipulates imposing of sentence of imprisonment in default of fine. The said provision empowers the judicial magistrate of first class to award such term of imprisonment in default of payment of fine. So, the default sentence passed by the Forum below while acting as the judicial magistrate of first class can be upheld. There is no illegality or irregularity in passing such a default sentence. Thus, in all respects the impugned order passed by the Forum below does not warrant any interference. The present appeal deserves dismissal with cost. These points are answered accordingly. In the result the appeal is dismissed with cost of Rs.500/- to the respondents. The impugned order dated 25/3/2009 passed by CDRF, Alappuzha in EA:13/01 is confirmed. M.V. VISWANATHAN : JUDICIAL MEMBER VL. | 
