Prem Adip Rishi Ex-Managing Director Mvl Limited vs Suresh Yadav & Anr

This Appeal Execution is directed against the order of State Consumer Disputes Redressal Commission, Haryana (hereinafter referred to as “the State Commission) dated 08.12.2021 in EA/49/2018, whereby the State Commission issued conditional non-bailable warrants against the Appellant/Judgment Debtor. to be present in person before the State Commission with the first instalment amount to be paid to the decree holder. State Commission further directed that if the judgment debtor does not comply with the direction to appear before the State Commission on 23.12.2021, his presence shall be secured by way of non-bailable warrants.

The State Commission, vide order dated 24.05.2018 in CC/391/20196 directed the Opposite Party/Judgment Debtor as under: -

“In view of the above, the complaint is allowed. MVL Limited-Developer is directed to pay Rs.50,00,000/- (Rupees fifty Lakh Only) to the Complainant, alongwith interest at the rate of 12% per annum from the date of its respective deposits till the date of realization; Rs.25,000/- as compensation for rendering deficient services and Rs.10,000/- towards litigation expenses. The entire amount be paid by the developer within a period of 45 days, from the date of receipt of the order, otherwise, it will carry interest at the rate of 18% per annum, till realization and it calls or pointed notice that under Section 27 of the Act, if the developer fails or omits to comply with this order, it 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 or both.”

The aforesaid order was to be complied by the Opposite Party/Judgment Debtors within 45 days from the date of receipt of certified copy of the order. Since the Opposite Party/Judgment Debtor failed to comply with the order dated 24.05.2018, the decree holder filed EA/49/2018 before the State Commission. In the Execution Petition, on 08.12.2021 the State Commission passed the following order: -

“Resultantly, the execution is adjourned to 23.12.2021. On the said date, the judgment debtor shall remain present before the State Commission with the first instalment amount to be paid to the decree holder. If the judgment debtor does not comply with the direction to appear before the State Commission on 23.12.2021, his presence shall be secured by way of non-bailable warrants.”

Aggrieved by the impugned order, the Appellant/Judgment Debtor has filed the instant Appeal.

Heard Learned Counsel for the Parties and carefully perused the record. Learned Counsel for the Appellant submitted that the State Commission the impugned order passed by the State Commission is illegal and against the evidence on record. He also submitted that winding up proceedings were going on against the Opposite Party/Judgment Debtor and Hon’ble Delhi High Court, vide order dated 25.07.2018 had appointed a provisional Official Liquidator. Despite that, the State Commission, vide order dated 24.05.2018 allowed the Complaint and directed the Appellant/Opposite Party to pay Rs.50 lakhs alongwith 12% interest within 45 days. He submitted that as per Section 279 of the Companies Act, 2013 after appointment of Official Liquidator no claim or proceedings can be initiated before any Court/Tribunal/Commission without permission of the High Court. This fact was brought to the notice of the State Commission in the Execution Proceedings, by filing an application under Section 279 of the Companies Act but the Executing Court without hearing the application under Section 279 of the Act, vide order dated 28.01.2020 directed the Appellant/Judgment Debtor to pay 50% of the awarded amount. The Judgment Debtor did not comply with the order dated 28.01.2020. Thereafter, the State Commission passed the impugned order dated 08.12.2021 directing the Judgment Debtor as stated above. Learned Counsel relied on the judgment in Official Liquidator vs. Gaurav Sharman & Ors.

Learned Counsel for Respondent No.1/Complainant submitted that in the execution proceedings, the State Commission vide order dated 05.04.2021 directed the Appellant/Judgment Debtor to appear in person. The Appellant had not filed the copy of the order dated 05.04.2021 to show the impression that the Executing Court had directly issued the warrants. Final order in the execution petition is yet to be passed. The Appeal Execution is misconceived and unsustainable in law. He submitted that the Appellant had concealed the material fact before this Commission that they had taken steps for revival of the company. He submitted that the instant Appeal Execution is an abuse of process of consumer jurisdiction.

Learned Counsel for Respondent No.2/Official Liquidator submitted that the Official Liquidator was not made a Party in the Execution Petition before the State Commission. He submitted that the impugned order dated 08.12.2021 is against the provisions of Section 446 of the Companies Act, 1956. The Complainant did not obtain permission of Hon’ble Delhi High Court before filing the Execution Petition before the State Commission, which is against law. The State Commission also did not prefer to issue notice to the Official Liquidator. Learned Counsel relied on the judgment of Hon’ble Supreme Court in Harihar Nath vs. State Bank of India 2006 (4) SCC 457.

State Commission, vide impugned order dated 10.08.2021, inter alia directed the Judgment Debtor to appear in person with the first instalment amount to be paid to the Decree Holder. The Appellant could have appeared before the State Commission in execution proceedings and bring the aforesaid facts to the notice of the State Commission, which they failed to do and chose to file the Appeal Execution. Regarding legality of the order dated 24.05.2018 passed by the State Commission in CC/391/2016 it is relevant to mention that the Executing Court has nothing to do with the legality of the order. The Executing Court is to see that the decree is executed. If the Appellant/Opposite Party was not satisfied with the decree dated 24.05.2018, they had the remedy to challenge the same before the Appellate Court. The Judgment Debtor cannot take the ground before the Executing Court or before this Commission in Appeal Execution that the decree dated 24.05.2018 is illegal. The arguments of the Appellant and Respondent No.2 are not acceptable in the Appeal Execution. Also judgments relied by them are not applicable at the Appeal Execution stage. Execution proceedings have not been finalised and the order dated 08.12.2021 passed by the State Commission is an interim order. The Appellant instead of appearing before this Executing Court have rushed to this Commission.

For the aforesaid reasons, we do not find any illegality or infirmity in the impugned order, warranting interference in the Appellate jurisdiction. Appeal is accordingly dismissed.