No. 13/16.04.2010.

HON’BLE JUSTICE SRI A. CHAKRABARTI, PRESIDENT.

Decree Holder through Mr. Prabir Basu, the Ld. Advocate, JDR No. 1 through Mr. Anjan Dutta, the Ld. Advocate along with Ms. Sumita Ghosh, the Ld. Advocate and added JDR through Mr. Barun Prasad, the Ld. Advocate are present.  Heard Mr. Basu, the Ld. Advocate for the Decree Holder, Mr. Dutta, the Ld. Advocate for the JDR No. 1 and Mr. Barun Prasad, the Ld. Advocate for the added JDR.  The grievance of the Decree Holder is that the JDR failed to do compliance and delayed the matter for a long time and, therefore, while exercising the power under Section 27 of the Consumer Protection Act, this Commission should exercise the power of imposing punishment including sentence of imprisonment for the JDR.  In support of his contention Mr. Basu relied on the judgement in the case of Mrs. Beari Mary Mendez and Others – vs. – T. Varadaraj reported in 2001 (1) CPR 396 decided by the Tamil Nadu State Commission.  Mr. Dutta and Mr. Prasad appearing for the JDRs contended that the order of the State Commission was challenged before the Hon’ble National Commission where the impugned order was modified.  Further challenge was made before the Hon’ble Supreme Court where no modification of the order was made but time to comply was extended by three months by its order dated 13.11.2007.  Therefore, payment of the compensation and cost amounts being Rs.1,00,000/- and Rs.10,000/- paid along with letter dated 08.02.2008 and tender of the sum of Rs.18,51,823/- amounted to due compliance.  It is stated that the Decree Holder though accepted compensation and cost amounts unreasonably refused to accept the cheque for the sum of Rs.18,51,823/- and, therefore, the fault was on the part of the Decree Holder and not of the JDR.

We have considered the facts and also conduct of the contesting parties.  It appears that the State Commission granted relief to the Decree Holder making an alternative arrangement for the main relief i.e. effecting repairs and in case of failure to pay a quantified sum of Rs.18,51,823/-, over and above the direction for payment of compensation of Rs.2,00,000/- and litigation cost of Rs. 3,000/-.  On appeal the Hon’ble National Commission by its order dated 07.09.2007 omitted the portion of the State Commission’s order as regards effecting repairs.  The effect of the order of the National Commission is that the JDR was to pay Rs.18,51,823/- as also compensation of Rs.1,00,000 instead of Rs.2,00,000/- and litigation cost of Rs.10,000/- instead of Rs.3,000/-.  This order was again challenged before the Hon’ble Supreme Court wherein by order dated 23.11.2007 the Special Leave Petition was refused to be entertained and was dismissed granting extension of time for compliance of the order of the State Commission by three months from the date of the order.  admittedly repairing was not carried out by the JDR.  Therefore, the final effect of the said orders and such non-compliance of direction for carrying out repairs, is that JDR was to pay a sum of Rs.18,51,823/-, compensation of Rs.1,00,000/- and cost of Rs.10,000/- by 22^nd February, 2008 as the direction was for extension of three months.

The JDR admittedly paid the compensation of Rs.1,00,000/- and litigation cost of Rs.10,000/- along with its letter dated 08.02.2008 well within the time extended by the Hon’ble Supreme Court.  For further compliance of order the sum of Rs.18,51,823/- was also tendered along with letter dated 21.02.2008 which also is within the time so extended by the Apex Court.  The Decree Holder by its letter dated 03.03.2008 acknowledged receipt of the said letter dated 21.02.2008 but refused to accept the same calling upon the JDR to collect the cheque back on the ground that the repairing work was not carried out and was given a complete go by.

In the above facts and circumstances we are convinced that the application of the JDR was not compulsory for carrying out the repairing work as even the order of the Hon’ble Supreme Court did not modify the order of the Hon’ble National Commission in so many words though time was extended for carrying out the repairing works.  In our opinion this liberty to effect repairing work was with the default clause on payment of Rs.18,51,823/- and in our opinion JDR duly complied with the same within the extended time.  As the amount was refused by the Decree Holder, the JDR cannot be made liable for the delay in payment.  Accordingly, the prayer for imposing further penalty/punishment on the JDR relying on the law decided in the case of Mrs. Beari Mary Mendez and Others (Supra), does not arise.  The sum of Rs.18,51,823/- has been paid to the Decree Holder in Court by Cheque No. 067419 dated on 13.04.2010 drawn in favour of Bank of India and thus there being full satisfaction of the decree the execution case is treated as closed.  We make it clear in case the cheque handed over today is not honoured by the Bank, the Decree Holder will be entitled to take appropriate proceedings including revival of the present proceeding, if so advised.