HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT
- This appeal has been filed under section 73 of the Consumer Protection Act, 2019 challenging the impugned orders dated 09/07/2024, 16/05/2024 and 25/04/2024 passed by the Learned District Consumer Disputes Redressal Commission, Kolkata – Unit-I (North) (in short, ‘the District Forum’, now, ‘the District Commission’) in connection with the execution case No. EA/71/2016 by which the Learned District Commission was pleased to extend the interim bail granted in favour of the Jdr No. 2 and was pleased to direct the Jdr No. 2 to clear the total outstanding amount by the next date. The Dhr being the complainant lodged a complaint case before the District Forum being No. CC/186/2012 and the said case was allowed by the Learned District Commission directing the opposite party Nos. 1 to 3 / developers to refund Rs.6,75,000/- (Rupees six lakh and seventy five thousand only) in total and to pay compensation of Rs.30,000/- (Rupees thirty thousand only) for harassment and mental agony and litigation cost of Rs.10,000/- (Rupees ten thousand only) in favour of the respondent No. 1 / complainant within 45 days from the date of order, in default the amount shall carry interest @ 10% per annum till realization.
- Against the said order and judgment passed by the Learned District Commission one Sudip Ghosh, Debabrata Mitra and Goutam Chatterjee, the deceased, preferred an appeal being No. FA/975/2016 before the State Commission.
- After hearing both sides and on perusal of the record this Commission was pleased to pass the following order reproduced as under :-
“After giving due consideration to the submission advanced by the Ld. Advocates appearing for the parties, it appears to us that the Ld. District Forum was justified in passing the order impugned directing the OP Nos. 1 to 3 to refund Rs.5,50,000/- paid by the State Bank of India in favour of OP Nos. 1 to 3 from the loan account of respondent no.1/complainant. However, as there was no document to show about payment of Rs.100,000/- by the respondent no.1/complainant in favour of OP Nos. 1 to 3, the Ld. District Forum should not have awarded the amount of Rs.1,00,000/- but the imposition of compensation of Rs.30,000/- and litigation cost of Rs.10,000/- appears to be reasonable and justified and as such the said part of order is maintained.
In view of the above, the impugned Judgement/Final Order is modified only to the extent that the appellants/OP Nos. 1 to 3 to refund Rs.25,000/- + Rs.5,50,000/- = Rs.5,75,000/- (Rupees five lakh and seventy-five thousand) only. However, the other part of the order is maintained. The appellants/OP Nos. 1 to 3 are directed to make payment of Rs.5,75,000/- + Rs.30,000/- + Rs.10,000/- aggregating Rs.6,15,000/- within 30 days from date, in default, the amount shall carry simple interest @ 10% p.a. from date till its full realisation.
With the above observations and directions, the instant appeal stands disposed of.”
- The appellant / Jdr No. 2 and others did not comply with the said order of the State Commission within a reasonable time and the order of the State Commission has not yet been vacated or set aside by any higher forum. The Dhr / complainant Arup Sarkar filed an execution case to execute the said order of the State Commission before the District Commission. The District Commission directed the appellant / Jdr No. 2 to clear total outstanding amount by 09/08/2024 and extended the interim bail granted earlier in favour of the Jdr No. 2 / appellant by the order impugned.
- Being aggrieved by and dissatisfied with the said order the appellant / Jdr. No. 2 has preferred this appeal. It is the contention of the Learned Advocate appearing for the appellant /Jdr No. 2 that the impugned orders passed by the Learned District Commission are bad in law and in facts. The Learned District Commission has committed gross error in proceeding to recall its own order and exercised which is beyond the power conferred on the Learned District Commission under this statute. The Learned Advocate appearing for the appellant / Jdr No. 2 has further urged that the Executing Court below has made erroneous observation in the impugned orders. As such, the appellant / Jdr No. 2 has prayed for setting aside the impugned orders passed by the District Executing Commission.
- Sub section 1 of section 72 of the Consumer Protection Act, 2019 runs as follows :-
“Whoever fails to comply with any order made by the District Commission or the State Commission or the National Commission, as the case may be, shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty-five thousand rupees, but which may extend to one lakh rupees, or with both.”
- Section 73 of the Consumer Protection Act, 2019 runs as follows :-
“(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, where an order is passed under sub-section (1) of section 72, an appeal shall lie, both on facts and on law from –
(a) the order made by the District Commission to the State Commission;
(b) the order made by the State Commission to the National Commission; and
(c ) the order made by the National Commission to the Supreme Court.
(2) Except as provided in sub-section (1), no appeal shall lie before any court, from any order of a District Commission or a State Commission or the National Commission, as the case may be.
(3) Every appeal under this section shall be preferred within a period of thirty days from the date of order of a District Commission or a State Commission or the National Commission, as the case may be:
Provided that the State Commission or the National Commission or the Supreme Court, as the case may be, may entertain an appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period of thirty days.”
- From the conjoint reading of section 72(1) & 73, it is clear that an appeal under section 73 can lie before the State Commission on facts of law, if an order of conviction and sentence is passed under section 72(1) of the Act by the District Commission as against an order of conviction and sentence made by the State Commission, an appeal can be preferred to the Hon’ble National Commission and order of conviction and sentence passed by the Hon’ble National Commission would be appealable before the Hon’ble Supreme Court. It appears that this instant appeal has been filed challenging an order of direction for making payment of balance decreetal amount and extension of time of interim bail in favour of the Jdr /Appellant No. 2.
- It further appears to me that no order of sentence and / or imprisonment was passed by the Learned District Commission and no order of sentence and imprisonment has been assailed before this Commission and has not been brought on record. As such, this appeal under section 73 of the Act is a premature one, since the appeal under section 73 is maintainable only, if the matter of sentence or imprisonment is passed and not mere issue of warrant of arrest. In this connection, it will be appropriate to reproduce the impugned orders being Nos. 39 dated 25/04/2024, 40 dated 16/05/2024 and 42 dated 09/07/2024 passed by this Commission. It, therefore, appears that the Learned District Commission has merely directed the appellant / Jdr No. 2 to make payment of the balance decreetal amount and extended the interim bail in favour of the appellant / respondent No. 2 granted earlier. Therefore, the appeal under section 13 of the Act will not be maintainable against the order of direction for making payment of balance decreetal amount and for extending the interim bail granted earlier in favour of the appellant / Jdr No. 2. Moreover, I find that setting aside of the impugned order will cause unnecessary delay in execution of an order which has reached its finality long ago. In this connection, the order of the Hon’ble National Commission in appeal execution No. 104/2021, reported in 2021 SCC online NCDRC 418, would be mentioned wherein the question of appeal before the Hon’ble National Commission on the order of issuance of process of appealable warrant in connection with application under section 72 of the Act was challenged. After the elaborate discussion, the Hon’ble National Commission was pleased to dismiss the appeal in limine as not maintainable.
- The Learned Advocate appearing for the appellant / Jdr No. 2 in support of his argument has relied on the following judgments :-
i) AIR1960SC388, ii) (1970) 1 SCC 670, iii) (2011) 9 SCC 541
- However, reliance of these 3 judgments, in the adjudication of this appeal, the facts being at variance, would be misplaced. Therefore, considering the facts that this appeal has been preferred against the order of direction to make payment of the balance decreetal amount and against the order of extension of interim bail granted earlier in favour of the appellant / Jdr No. 2, I am of the view that this appeal deserves to be dismissed in limine as not maintainable.
- In the result, the appeal be and the same is dismissed in limine as not maintainable with no order as to costs.
- The appeal is, thus, disposed of accordingly.
