ORDER

(Passed on 09 /08/2018)

PER SHRI.ATUL D.ALSI, PRESIDENT.

The complainant/applicant has filed this application  U/s 27 of the Consumer Protection Act,1986 alleging disobedience of order passed by this Forum in CC No.145/2010 on 30/12/2010 and thereby seeking punishment upto 3 years imprisonment and fine amounting to Rs.10,000/-.

2.                The story in short,  giving rise to this execution application is that the complainant had filed a Consumer Complaint bearing No.CC/145/2010 U/s 12 of the Consumer Protection Act, 1986 against the Non applicants/accused.   This Forum has passed order dated 30/12/2010 in the said complaint  directing the OP/present NA to pay to the complainant an amount of Rs.15,500/- towards cost of five lockets within 30 days from the date of passing of order with interest @9% p.a. from the date of registration of the complaint i.e. 11/10/2010 till realization and further to pay Rs.1000/- as compensation for mental torture.

3.                The applicant/complainant had purchased five black lockets as per the assurance given by the NA/accused that after wearing it, the problem of stomach reduces. Therefore, the applicant/complainant purchased five  black lockets and paid Rs.15,500/- to the OP/NA on 9/10/2009.  However, after using these lockets, there was no effect and result as per assurance given by the NA/accused. Therefore, the complainant sought refund of lockiet cost amount before the Forum. After hearing the parties and perusal of record and evidence, the judgment came to be passed on 30/12/2010  and the NA/accused was directed to refund Rs.15,500/- alongwith interest.  The applicant/complainant issued notice to the NA/accused through his advocate on 27/1/2011 for compliance of judgment and order but the accused failed to comply the notice. Therefore this execution proceeding U/s 27 of the C.P.Act came to be filed for appropriate punishment and fine.

4.                The Execution Application was admitted and summons were issued. The accused appeared and furnished bail. The particulars were explained to the accused. The accused denied the particulars on 15/6/2016.  The  complainant filed evidence on affidavit as Exibit 35. The complainant/applicant has examined himself as PW No.1. It has come in evidence that after service of notice through Adv.Kullarwar, the judgment and order in CC No.145/2010 has not been complied and, therefore, applicant is seeking punishment to the N.A. for disobedience of judgment and order.

5.                In cross examination, the complainant/PW No.1 has admitted that the accused preferred an appeal before the Hon’ble State Commission, Nagpur Bench bearing No.252/2011 against the order of this Forum in CC No.145/2010 dated 30/12/2010 which is passed exparte against the accused.  He also admitted that the said appeal has been dismissed by the Hon’ble State Commission. He also admitted that after the dismissal of the appeal, the accused has deposited Rs.16,900/- vide DD No.20286 dated 25/8/2016 and the applicant has received the said amount vide DD No.41396 from the Forum on 29/8/2017 in this execution case before the Forum.

6.                The counsel for the accused filed pursis and closed his evidence. The accused is examined on evidence U/s 313 of Cr.P.C. The accused denied the charge U/s 313 of the Cr.P.C.

7.                The counsel for the complainant argued that the accused deposited the amount as per direction of State Commission but it was not deposited in compliance of the judgment and order of this Forum and hence till actual realization of full amount, there is no compliance of judgment and order. The accused failed to pay the decreetal amount within 30 days as directed.  The accused deposited an amount of Rs.8250/- on 16/5/2011 for admission of appeal. The appeal came to be dismissed on 7/7/2016 for non appearance of counsel for the accused. The amount of Rs.16,900/- was paid to the complainant towards judgment and decree on 29/8/2017.  The accused failed to deposit the entire amount alongwith interest before the Forum within the time limit and therefore, there is wilful non compliance of judgment and order and hence the application may be allowed.

8.                The counsel for the accused argued that order in  CC No.145/2011 was passed by this Forum exparte against the NA/accused, and therefore, after the receipt of copy of judgment and order on 12/5/2011, the accused preferred appeal bearing No.A/11/252 alongwith application for condonation of delay  before the Hon’ble State Commission and deposited statutory amount of Rs.8250/- on 16/5/2011. He further deposited balance amount of Rs.7250/- on 13/10/2011 and Rs.1400/- on 14/10/2011 as per directions of Hon’ble State Commission.  The Hon’ble Commission was pleased to allow the application for condonation of delay on 15/6/2012 . The appeal came to be dismissed in default on 14/1/2016 for non presence of counsel for the accused. After receipt of the copy of dismissal order, the accused deposited Rs.16,900/- on 25/8/2016 with the permission of the Forum and the complainant has received that amount vide DD No.418395/- dated 29/8/2017 from the Forum towards satisfaction of decree and order.  There is no disobedience of judgment and order on the part of NA/accused and hence the case deserves to be dismissed.

          After hearing the parties and going through the evidence on record, the following points arose for our consideration.

                             Point                                                                    Finding

1.     Whether the accused has committed willful                             No

        disobedience of judgment and order dated 30/12/2010

        passed by this Forum in CC No.145/2010 ?

2.    What order ?                                                                            As per final order

REASONING

As to issue No.1

11.      After getting the knowledge of passing of exparte judgment and order in CC No.145/2011 by this Forum, and after receipt of copy of the said judgment on 12/5/2011, the accused preferred appeal bearing No.A/11/252 alongwith application for condonation of delay  before the Hon’ble State Commission and deposited statutory 50% decreetal amount Rs.8250/- on 16/5/2011 and also filed pursis for the deposited amount before this Forum in this execution case on 16/5/2011. The accused further deposited balance amount of Rs.7250/- on 13/10/2011 and Rs.1400/- on 14/10/2011 as per directions of Hon’ble State Commission.

12.              The Hon’ble Commission was pleased to allow the application for condonation of delay on 15/6/2012 and the appeal was fixed for further hearing on further dates. On 14/1/2016, the accused came to know that the appeal has been dismissed in default for non presence of counsel on his behalf. After getting knowledge of dismissal of appeal, the accused deposited Rs.16,900/- on 25/8/2016 with the permission of the Forum and the complainant has received that amount vide DD No.418396/- dated 29/8/2017 from the Forum towards satisfaction of decree and order dated 30/12/2010 passed  in CC No.145/10,  without raising any protest.  Therefore there is no willful disobedience of judgment and order on the part of NA/accused and hence the execution application deserves to be dismissed.  Hence the order..

Final order

1. The Execution application is dismissed and the accused is acquitted. The   

    bail bond stands cancelled.

2. Copy of the order be furnished to both the parties free of cost.

(Smt.Kalpana Jangade (Kute)  (Smt.Kirti Vaidya (Gadgil)     (Shri.Atul D.Alsi)

               Member                                 Member                                     President