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Judgment
This revision petition has been filed by the petitioner M/s Godon Housing Development Company and Anr., against the order dated 16th August 2018 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai ('the State Commission') in First Appeal number 115 of 2018.
The brief facts of the case are that on 31st December 1994 an agreement for sale was executed by the opposite party/petitioners in favour of the complainant/ respondent to sell plot no.14 A from the proposed lay out Suryoday Vihar for a consideration of Rs.16,724/-. It was agreed to deposit the said amount by way of 60 monthly instalment of Rs.200/- each. On 12.12.2001, the petitioners/ opposite party submitted a proposal for the non-agricultural permission before the Collector Yavatmal. Sanction was granted by concerned department. However, the possession of the plot was not given to the complainant. On 18th March 2008, the complainant/ respondent filed the complaint against the petitioners/ opposite party before the District Consumer Disputes Redressal Forum, ('the District Forum') along with an application for condonation of delay. The petitioners/ opposite party resisted the complaint by stating that the consumer forum has no jurisdiction to entertain the matter and the complaint is barred by limitation and on other grounds. Vide its order dated 10th July 2009, the District Forum partly allowed the complaint and directed the petitioners either to execute the sale deed after obtaining the balance amount from the respondent or to execute the sale deed of another plot in the said lay out or to refund the amount as per the market value of the said plot as on the date of order.
Thereafter the petitioners preferred an appeal before the State Commission which was withdrawn by appellant no. 1 on 17th December 2014. The respondent then filed a complaint under section 27 of the Consumer Protection Act, 1986 before the District Forum on 4.7.2018. The District Forum vide its order dated 09.07.2018 issued process against the petitioners. Being aggrieved by the order of the District Forum, the petitioners filed an appeal under Section 27 A of the CP Act, 1986 before the State Commission which was dismissed on 16th August 2018.
Being aggrieved by the order passed by the State Commission, the petitioners have filed the present revision petition.
Heard the learned counsel for the petitioners at the admission stage. Learned counsel stated that the State Commission has not considered all the points raised in the appeal and has dismissed the appeal only on one ground. The State Commission has only considered the objection of the petitioner that the execution has been filed after four years of passing of the order and therefore, the execution is not maintainable in the light of Regulation no. 14 (iv) of the Consumer Protection Regulations 2005 which provides that an application for execution has to be filed within 30 days from the date of knowledge of the order. The State Commission has held that there is no time limit for filing execution and Regulation 14 (iv) is not applicable in respect of application filed for execution. The appeal of the petitioner has been dismissed on this ground alone and the other grounds of appeal have not been considered by the State Commission.
It was further stated by the learned counsel for the petitioner that the petitioner was ever willing to comply with the order of the District Forum and the respondent had filed no documentary proof that the petitioner was not willing to comply with the order of the District Forum. However, the District Forum passed the order only on the statement given by the complainant. Even the State Commission has not considered this aspect. The respondent had himself admitted that the respondent received the copy of the order of the State Commission Circuit Bench Nagpur on 30th April 2015, whereas the execution has been filed on 4th July 2018. Thus clearly the execution is barred by limitation, however, both the Fora below have failed to appreciate this legal aspect in its correct perspective. Learned counsel again reiterated that Regulation 14 (iv) provides only 30 days for filing any application and therefore, application for execution was hopelessly barred by limitation. State Commission has also not considered the issue that the District Forum issued summons to the petitioner without examining complainant on oath. It was further submitted by the learned counsel that the argument that the order passed by the State Commission dismissing the appeal provided a continuous cause of action is not sound and legal when there is a specific provision for filing the complaint within two years if execution application is considered as a complaint. If the same is not filed within this period, at least an application for condonation of delay should have been filed.
I have given a careful consideration to the arguments advanced by the learned counsel for the petitioners and have examined the material on record. Though, it has been alleged that the State commission has not considered the other points raised in the appeal, however, even in the revision petition, those points are not mentioned. Petitioner has only dwelled upon the issue of limitation in the grounds of revision petition. The State Commission has clearly mentioned that the only legal submission made by the learned advocate of the appellant (petitioner herein) in execution that the application filed by the complainant under Section 27 of Consumer Protection Act, 1986 is barred by limitation as it is not filed within 30 days from the date on which cause of action for filing the said application arose. The only other point raised in the revision petition relates to the fact that the District Forum did not examine the complainant on oath before issuing summons to the petitioners. The whole purpose of Section 200 is to enable the Magistrate to prima facie find out the truth or falsehood of the complaint by examining the complainant. It is mainly the satisfaction of the Magistrate that is important and not the procedure. In this regard it is important to note that the Hon'ble Supreme Court in Shivajee Singh Vs. Nagenra Tiwary and others , (2010) 7 Supreme Court Cases 578, has observed the following:
"16. The object of examining the complainant and the witnesses is to ascertain the truth or falsehood of the complaint and determine whether there is a prima facie case against the person who, according to the complainant has committed an offence. If upon examination of the complainant and/or witnesses, the Magistrate is prima facie satisfied that a case is made out against the person accused of committing an offence then he is required to issue process."
It is not really required to examine on oath in the criminal complaint case of this nature. In other Acts, where documentary proof may be sufficient to prove the guilt of the accused, the examination may not really be required. This view is supported by the Hon'ble High Court of Karnataka in Percy Fernandes Vs. Smt. Anita Patrao decided on 26.7.2004, wherein the High Court has held as under:
"22. As noted already, the object of enquiry envisaged under Section 200 of CR.P.C. is to verify the truth or falsehood of the averments made in the complaint and to find out whether there is prima facie material or evidence in support of the complaint to issue process against an accused and nothing more than that. And that object is fulfilled by the documents filed with such complaints for offence under Section 138 of N.I. Act. So examination or non-examination of the complainant and his witnesses, if any, on oath has no such effect on the enquiry in complaints filed for offence under Section 138 of N.I. Act.
As noted already, examination of complainant and witnesses, if any, on oath by Magistrate envisaged under Section 200 of Cr.P.C. is necessary in the enquiry only to ascertain the truth or falsehood of averment made in the complaint. So, an affidavit evidence given by complainant under Section 145 of N.I. Act could be read as evidence in such enquiry provided under Section 200 of code of Criminal Procedure.
Even otherwise, this Court has taken consistent view that non-examination of complainant is not fatal, as noted already. At the most, it could be an irregularity which could be disregarded in view of the provisions contained in Sections 461 and 465 of Cr.P.C, more so, when not shown as to how such omission has caused any prejudice to the petitioner-accused.
First of all, in case of Consumer Protection Act, 1986 trial court as well as executing court are the same, though they act in different capacities while working under Section 12 and Section 27 of the Consumer Protection Act. The basis of any complaint under Section 27 of the Consumer Protection Act is the judgement of the consumer forum which has attained finality. Here, the judgment of the High Court of Karnataka in Percy Fernandes Vs. Smt. Anita Patrao (supra) seems relevant.
Another question has been raised by the learned counsel for the petitioner that the complainant has not filed any document to prove that the petitioner was not willing to comply with the order under execution. If the petitioner was willing to comply with the order under execution, then the question arises why did the petitioner not comply with the order in three years after passing of the order. The question further arises that when the summons were served by the District Forum, then the petitioner should have volunteered for compliance of the order under execution but the same was not done. This clearly shows that the petitioner was not willing to comply with the order under execution and the petitioner is taking shelter under various technical points to avoid the execution. For such unwilling persons the provision of section 27 of the Consumer Protection Act, 1986 has been kept to ensure compliance of the final orders passed by the Consumer Fora.
Now coming to the main point of limitation raised by the learned counsel for the petitioner, it is seen that the State Commission has dealt with this aspect in great detail and has reached to the conclusion that Regulation 14 (iv) is not applicable for execution applications and that execution is continuous cause of action till the final order is executed. This Commission in Appeal Execution No.38 of 2016, J.H.Phalle, Jaysheel Housing Complex Pvt. Ltd. Vs. Vijaya Poduval & Ors., decided on 17.01.2018 has dismissed the Appeal Execution against the order dated 03.08.2016 of the State Commission passed in Execution Application No.20 of 2014 for execution of an order dated 01.08.2002 and has observed the following:-
"6. Having heard learned Counsel for the Appellant and the Authorized Representative of the Respondents at some length and perused the material on record, we are of the view that having regard to the quantum of amount directed to be refunded vide final order dated 01.08.2002, which ranges between ₹20,000/- to ₹1,50,000/-; the Complainants had deposited the said amounts with the Judgment Debtor, as far back as in the year 1994-1995 and the substantive order passed more than 15 years ago, it would be travesty of justice to non-suit the Complainants/Decree Holders, on the afore-noted hyper technical grounds."
This Commission in RP Nos.2218 of 2007, 2219 of 2007 and 2220 of 2007, Prem Chandra Varshney Vs. Murarilal Sharma & Ors., decided on 12.09.2007 has observed the following:-
"5. To be only noted that under Article 136 of the Limitation Act, 1963 the period of limitation prescribed for filing execution of any decree or order of any Civil Court is 12 years. Plain reading of said Regulation 14(1)(iv) would show that it would not apply to execution proceedings. Consumer Protection Act, 1986 does not provide for any limitation period for filing execution application. Though, said Article is not applicable to Consumer Fora still clue can be taken therefrom that period of limitation for filing execution application before Consumer Fora cannot be 30 days from the date of passing of order sought to be executed. Thus, the execution application (s) filed on 21.11.2005 were not bared by time."
From the above, it is clear that Regulation 14 (i)(iv) is not applicable for filing of execution applications. The period of 2 years for filing a consumer complaint is also not applicable for filing execution application because there is no provision like this in the Consumer Protection Act, 1986 as execution proceedings are separate independent proceedings and not the extension of the complaint case. Moreover, Hon'ble Supreme Court in Karnataka Housing Board Vs. K.A. Nagamani, Civil Appeal No.4631 of 2019, decided on 06.05.2019 has observed the following:-15
"7.6. A Full Bench of the Patna High Court in Masomat Narmada Devi & Anr. v. Nandan Singh & Ors.,has similarly held that execution proceedings cannot be regarded as a continuation of the Suit. 7.7. We affirm the view taken by the Full Bench of the Andhra Pradesh High Court and Patna High Court. Execution proceedings even though they are proceedings in a suit, cannot be considered to be a continuation of the original suit. Execution proceedings are separate and independent proceedings for execution of the decree. The merits of the claim or dispute, cannot be considered during execution proceedings. They are independent proceedings initiated by the decree holder to enforce the decree passed in the substantive dispute.
7.8. There is no remedy provided under Section 21 to file a Revision Petition against an Order passed in appeal by the State Commission in execution proceedings. Section 21(b) does not provide for filing of a Revision Petition before the National Commission against an Order passed by the State Commission in execution proceedings.
7.9. In the present case, the National Commission committed a jurisdictional error by entertaining the Revision Petition16 u/S. 21(b) filed by the Appellant - Board against an appeal filed before the State Commission, in Execution proceedings."
Thus, the revision petition No.2765 of 2018 filed against the order of the State Commission passed in execution appeal is not maintainable in this Commission.
Based on the above reasons, the revision petition is dismissed.