Chandigarh

StateCommission

A/77/2018

St. Kabir Public School - Complainant(s)

Versus

The Owner, M/s Beyond Computers - Opp.Party(s)

Pankaj Chandgothia, Adv.

31 May 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Appeal No.	:	77 of 2018
Date of Institution	:	18.04.2018
Date of Decision	:	31.05.2018

 

St. Kabir Public School, Sector 26, Chandigarh c/o Kabir Educational Society, through its Administrator, Sh. Gurpreet Bakshi.

 

……Appellant/Complainant/Decree Holder

 

V e r s u s

 

1. The Owner, M/s Beyond Computers, SCO 371-372, First Floor, Sector 35-B, Chandigarh.
2. Mr. I.P. Singh, Proprietor, M/s Beyond Computers, SCO 371-372, First Floor, Sector 35-B, Chandigarh.
3. The M.D., M/s Dell India Pvt. Ltd., No.12/1, 12/2-a & 13/1-a, Ground Floor, Challaghatta Village, Varthur Hobli, Domlur, Bengaluru, Karnataka – 560071.
4. Sh.Nitesh Ranjan s/o Sh.Anil Kumar, Authorized Signatory, M/s Dell India Pvt. Ltd., No.12/1, 12/2-a & 13/1-a, Ground Floor, Challaghatta Village, Varthur Hobli, Domlur, Bengaluru, Karnataka – 560071.
5. The Incharge, M/s Ingram Micro India Ltd., SCO 60, IInd Floor, Sector 47C, Chandigarh through its Branch Head.
6. The M.D., M/s Ingram Micro India Ltd., Godrej IT Park, B-Block, 5^th Floor, Pirojshanagar, Vikhroli (West), Mumbai-400079.

….Opposite parties/Judgment Debtors

Appeal under Section 27A of the Consumer Protection Act, 1986.

 

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:-       Sh.Pankaj Chandgothia, Advocate for the appellant.

                         Sh.Sehaj Bir Singh, Advocate for respondents no.1 and 2.

                         Sh.Amit Jhanji and Sh.Salil Sabhlok, Advocates for respondents no.3 and 4.

 

PER PADMA PANDEY, MEMBER

                This appeal has been filed against the order dated 10.04.2018, passed by the District Forum-I, U.T., Chandigarh, in execution application no.02 of 2018, arising out of consumer complaint bearing no.04 of 2016 decided on 28.11.2017, wherein, the judgment debtors had been directed to refund the amount of Rs.6,84,600/- alongwith interest, compensation, cost, within a period of one month from the date of receipt of certified copy of the said order, failing which, penal interest was to entail on the amount of refund as also compensation apart from paying litigation expenses. However, since the judgment debtors failed to comply with the directions given in the order dated 28.11.2017 and also at the same time, they (judgment debtors) also did not obtain stay against the same (order dated 28.11.2017)  from any appellate Fora, as such, the decree holder had filed the abovesaid execution application, which was not entertained by the Forum holding that since opposite party no.3/judgment debtor no.3 has filed appeal bearing no.10 of 2018 before this Commission and the same is pending adjudication, irrespective of the fact that stay has not been granted therein, no order can be passed in the same (execution application). To say so, reliance has been placed by the Forum on the case titled as ‘Maytas Properties Limited vs. A.P. State Consumer Disputes Redressal Commission reported in AIR 2013 AP 93, wherein, the Andhra Pradesh High Court has held penal proceedings under section 27 of the Act, cannot be entertained while an appeal is pending before the appellate Fora. Hence this execution application     

2.         At the time of arguments in this appeal, Counsel for the decree holder contended that the order passed by the Forum, being erroneous, is liable to be set aside. Whereas, on the other hand, Counsel for the judgment debtors, contended that the order passed by the Forum, being correct, is liable to be upheld.
3.         We have heard Counsel for the contesting parties and have gone through the evidence and record of the case, very carefully.
4.         The moot question, that falls for consideration, is, as to whether the aforesaid Execution Application under Section 27 of the Act, was not maintainable for enforcement of the order dated 28.11.2017 passed by the Forum in consumer complaint bearing no.04 of 2016, during the pendency of appeal bearing no.10 of 2018, filed by opposite party no.3/judgment debtor no.3 before this Commission, wherein no stay was granted to it or not?

                It is settled principle of law, that mere filing of an appeal, against any order, does not operate as stay. In Allahabad Development Authority, Allahabad Vs. District Consumer Protection Forum Allahabad and another, AIR 2006 ALL 71, a case decided by a Division Bench of the Allahabad High Court, the District Forum accepted the complaint, vide order dated 07.10.1996, and directed the Development Authority, to refund the amount of Rs.1,18,995/-, alongwith interest @ 15% per annum, with yearly rests, and cost of Rs. 2000/-, within two months, failing which the interest was to be paid @ 18% P.A.. An appeal was filed by the Opposite Party, against the aforesaid order, before the State Consumer Disputes Redressal Commission, at Lucknow. However, no interim order, either staying the operation of the order dated 07.10.1996, or granting any other protection, was passed by the State Consumer Disputes Redressal Commission, at Lucknow. Since, the order dated 07.10.1996, was not complied with, by the petitioners, the complainant/ respondent No. 2, filed an Execution Application, under Section 27 of the Act, for execution of the order, before the District Forum, on 21.12.1996, against the Development Authority, and its Officers. After hearing the matter, vide order dated 03.03.1997, the Secretary of the Development Authority, and petitioner No.2, were sentenced to undergo imprisonment for three months each,  and to pay a fine of Rs.5,000/-. Feeling aggrieved, Writ Petition, under Article 226 of the Constitution of India, was filed by the petitioners/Judgment Debtors/Opposite Parties. In the Writ Petition, a submission was made by the Counsel for the petitioners, that since an appeal had been filed, against the order, passed by the District Forum, the same had not attained finality, in view of the provisions of Section 24 of the Act, and, therefore, the same (order) could not be got executed. It was further submitted by the Counsel for the petitioners, that the legislative intent of the Parliament, while enacting Section 24 in the Act, was absolutely clear and did not involve any two interpretations. Other submissions were also made. The High Court of Allahabad, in the aforesaid case, held as under:-

“5. Having given our, anxious consideration to the various pleas raised by the learned counsel for the petitioners, we are of the considered opinion that even though under Section 24 of the Act it has been provided that an order passed by the District Forum would be final if no appeal has been preferred against such an order under the provisions of the Act, it does not imply that if an appeal has been preferred against the order passed by the District Forum, the order of the District Forum cannot be executed or action cannot be taken for its violation or non-compliance. For ready reference, Section 24 of the Act is reproduced below:-

24. Finality of orders.- Every order of a District Forum, the State Commission or the National Commission shall, if no appeal has been preferred against such order under the provisions of this Act, be final.

6. It is well settled that mere preferring of an appeal would not operate as stay of an order appealed against. The Apex Court in the case of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., has held as follows:-

8. It is well settled that mere preferring of an appeal does not operate as stay on the decree or order appealed against nor on the proceedings in the court below. A prayer for the grant of stay of proceedings or on the execution of decree/order appealed against has to be specifically made to the appellate Court and the appellate court has discretion to grant an order of stay or to refuse the same. The only guiding factor, indicated in Rule 5 aforesaid, is the existence of sufficient cause in favour of the appellant on the availability of which the appellate court would be inclined to pass an order of stay. Experience shows that the principal consideration which prevails with the appellate court is that in spite of the appeal having been entertained for hearing by the appellate court, the appellant may not be deprived of the fruits of his success in the event of the appeal being allowed. This consideration is pitted and weighed against the other paramount consideration : why should a party having succeeded from the Court below be deprived of the fruits of the decree or order in his hands merely because the defeated party has chosen to invoke the Jurisdiction of a superior forum. Still the question which the Court dealing with a prayer for the grant of stay asks itself is: why the status quo prevailing on the date of the decree and/or the date of making of the application for stay be not allowed to continue by granting stay, and not the question why the stay should be granted.

7. Even in the case of Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association the Apex Court has held that wherein operation of the order has been stayed by the Court it only means that such order would not be operative from the date of its passing. It would not mean that the order stayed had been wiped out from existence and the order of stay granted pending disposal of a case comes to an end with the dismissal of the substantive proceeding and it is the duty of the Court in such cases to put the parties in the same position they would have been but for the interim orders of the Court.

8. Thus, in view of the authoritative pronouncement of the Apex Court, referred to above, the first plea of Sri Paul that as the appeal has been preferred before the State Commission against the order dated 7.10.1996 passed by the District Forum, no action for its non-compliance or violation can be taken by the District Forum, has no merit and is hereby rejected.”

5.         From the principle of law, laid down, by the Allahabad High Court, in Allahabad Development Authority, Allahabad`s case (supra), it is evident that the mere fact, that an appeal had been preferred, against the order of the Consumer Fora, where no stay was granted, did not debar the Decree Holder/complainant, from enforcing the order, on non-compliance thereof, by the Judgment Debtors, by filing an Execution Application,  under Section 27 of the Act. The principle of law, laid down, in the aforesaid case, is, thus, fully applicable to the facts and circumstances of the instant case. Since there is no stay against the order dated 28.11.2017, passed by the Forum in the Consumer Complaint, bearing No.04 of 2016, either by this Commission or National Consumer Disputes Redressal Commission, New Delhi, or any other Court, the same could certainly be legally enforced by the Decree Holder/complainant, by filing the Execution Application, under Section 27 of the Act.
6.          Not only as above, in Aradhana Steels Vs. Regency Industries Ltd., I (1997) CPJ 59, a case decided by Delhi Consumer Disputes Redressal Commission, New Delhi, a similar question fell for decision before it, as to whether, pendency of an appeal, before the National Commission, had the effect of making the order, passed by the State Commission, non-final, within the meaning of Section 24 of the Act, and the same could not be enforced, by way of filing an Execution Application, under Section 27 of the Act. In the aforesaid case, it was held that it is settled principle of law, that mere filing of an appeal, does not operate as a stay of the order, appealed against, and since the National Commission, had not granted any stay of recovery of amount, in pursuance of the order of the State Commission, Execution Application under Section 27 of the Act, for enforcement of the order passed by it (State Commission), was maintainable.  In the aforesaid case, the Delhi State Commission, placed reliance on the decision, in Laxmi Engineering Works v. PSG Industrial Institute, II (1995) CPJ 1 (SC), wherein their Lordships of the Supreme Court, while noticing the scheme of the Consumer Protection Act, made significant observations in para 12 of the report as under:

"12. Having dealt with the meaning of the expression 'any commercial purpose' in Section 2(d) in the light of the scheme of the enactment, it may be necessary to append a clarification to obviate any confusion. Section 24 declares that every order of a District Forum, the State Commission or the National Commission shall, if no appeal has been preferred against such order under the provisions of this Act, be final". This section has to be read alongwith Sub-section (3) of Section 13. Section 13 prescribes the procedure to be followed by the District Forum on receipt of a complaint. Sub-section (3) of Section 13 says that "No proceedings complying with the procedure laid-down in Sub-sections (1) and (2) shall be called in question in any Court on the ground that the principles of natural justice have not been complied with". By virtue of Section 18 the procedure prescribed in Section 13 applies to State Commission as well. From the above provisions, it is clear that the orders of the District Forum, State Commission and National Commission are final as declared in Section 24 and cannot be questioned in a Civil Court. The issues decided by the said authorities under the Act cannot be reagitated in a Civil Court, The said provisions make it equally clear that the Forums created by the Act fall in the second category of Tribunals mentioned in the The Queen v. Commissioner for Special Purposes of the Income Tax, (1888) 21 Q.B. 313 at p.319) which decision had been repeatedly affirmed and applied by this Court which means that the Forums/Commissions under the Act have jurisdiction to determine whether the complainant before them is a 'consumer' and whether he has made out grounds for grant of relief. Even if the Forum/Commission decides the said questions wrongly, their orders made following the procedure prescribed in Sub-sections (1) and (2) of Section 13 cannot be questioned in a Civil Court” except of course, in situations pointed out in Dhulabhai v. State of M.P., (1968) 3 S.C.R. 662). They can and must be questioned only in the manner provided by the Act”

7.         In Aradhana Steels` case (supra), it was held that it is settled law that even the obiter dicta of the Supreme Court is binding. It follows that the finality of the order referred to in Section 24 of the Consumer Protection Act, is to be taken in the sense explained by their Lordships in the Laxmi Engineering Works's case and the pendency of an appeal in the next higher Forum or the Supreme Court against the order of the National Commission, is no impediment in the order being executed or enforced in terms of Section 25 or Section 27 as the case may be. The observations made in Aradhana Steels` case (supra), are also applicable to the facts and circumstances of the instant case. As stated above, since in the instant case, there is no stay, against the order dated 28.11.2017, passed by the Forum in the consumer complaint, hence, the Execution Application, under Section 27 of the Act, is maintainable.
8.         The Forum, placed reliance on Maytas Vs. Andhra Pradesh State Consumer Disputes Redressal Commission, AIR 2013 AP 93, to contend that the Execution Application under Section 27 of the Act, was not maintainable before it, for the time being, the appeal is pending before this Commission. No doubt, in Maytas`s case (supra), the High Court of Andhra Pradesh, held that if an appeal against the order of the Consumer Fora, is pending in the Higher Fora, irrespective of the fact, whether stay had not been granted therein, the order could not be executed, by filing the Execution Application, under Section 27 of the Act. It may be stated here, that in Allahabad Development Authority, Allahabad`s case (supra), a Division Bench of the High Court of Allahabad held that the Execution Application, under Section 27 of the Act, for the enforcement of the order, passed by the Consumer Fora, even if, an appeal against the same, was pending, but no stay had been granted, was maintainable. We are of the considered opinion, that in view of the divergent principle of law, laid down, by the Division Benches of two High Courts, on the same point, it is for the Consumer Fora, to follow the one, which appeared to it, to be more reasonable and correct. Why the Decree Holder be deprived of reaping the fruit of decree, which was rendered in its favour, especially when there is no stay, against the same, though an appeal is pending. Why the Decree Holder should be made to wait, for a long number of years, to enforce the order against which, no stay was operative. If the Decree Holder is deprived of the benefit of decision, rendered in its favour, merely on the ground that an appeal against the same is pending, though no stay is operative, against the same, the purpose of the Act, 1986, providing for the speedy redressal of the grievances of the consumers, shall stand defeated. If ultimately, the appeal is accepted, the Judgment Debtors, shall have the remedy of resorting to the restitution proceedings. In our considered opinion, the view expressed by the Division Bench of Allahabad High Court, in Allahabad Development Authority, Allahabad`s case (supra), is required to be followed, in the instant case, in view of its peculiar facts and circumstances. The principle of law, laid down, in Allahabad Development Authority, Allahabad`s case (supra), also finds support from Laxmi Engineering Work`s case (supra) and Atma Ram Properties (P) Ltd.`s cases (supra) v. Federal Motors (P) Ltd., Appeal (Civil) 7988 of 2004, decided on  10/12/2004, by the Hon`ble Supreme Court of India.

       

9.         Similar view was taken by this Commission, in a case titled as Manuj Doger Vs. Unitech Limited, Execution Application No.37 of 2016, decided on 03.08.2016. The view taken by this Commission is further supported by a case titled as Collector of Customs, Bombay Vs Krishna Sales (P) Ltd [1994 (73) E.L.T 519 (S.C)], wherein, the Hon’ble Supreme Court of India held that mere preferment of appeal itself does not operate as a stay.  Relevant part of the said order reads thus:-

“As is well known, mere filing of an Appeal does not operate as a stay or suspension of the Order appealed against”.

 

10.         In view of above, we are of the considered opinion, that the Forum was wrong in not entertaining the execution application filed by the decree holder. The present appeal is allowed. The order dated 10.04.2018 passed by the Forum in execution application bearing no.02 of 2018, is set aside. The execution application bearing no.02 of 2018 which had been filed in the Forum, is ordered to be restored and further proceedings therein be carried out, as required under Section 27 of the Act. However, it is made clear that, in case, any stay is granted by any appellate Fora, against the order dated 28.11.2017 passed in consumer complaint no.04 of 2016, in those circumstances, the Forum shall proceed, as per law.
11.         The parties are directed to appear, before the Forum (I) on 27.06.2018 at 10.30 A.M., for further proceedings, in the execution application bearing no.02 of 2018.
12.         The District Forum record, alongwith a certified copy of the order, be sent back, to it, immediately, so as to reach there, well before the date and time fixed.
13.         Certified copies of this order be supplied to the parties, free of cost.
14.         The file be consigned to Record Room, after completion.

Pronounced.

31.05.2018

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

 (DEV RAJ)

MEMBER

 

 

Sd/-

 (PADMA PANDEY)

        MEMBER

 

 

Rg.