Rajesh Gade vs Minaxi Banodkar & 2 Ors

We have heard learned counsel for the appellant - Rajesh Gade, and perused the material on record.

Brief relevant facts, in chronology, are as below:

(a): Consumer Complaint No. CC/10/108 and Consumer Complaint No. CC/10/109 were decided by the State Commission vide a common order dated 11.12.2015.

(b): The OPs in the said two consumer complaints were :

OP No. 1 : Dwelling House Construction Company

OP No. 2 : Rajesh Gade (Partner)

OP No. 3 : Jitendra Gade (Partner)

(c) In Execution Application No. EA/17/139 and Execution Application No. EA/17/141 the State Commission passed a common order dated 06.09.2018.

(d) Appeals (execution) AE No. 200/2018 and AE No. 201/2018 have been filed against the said common order dated 06.09.2018 of the State Commission.

The State Commission's impugned Order dated 06.09.2018 is as below:

"In EA/17/139 Executant/complainant present a/w. Advocate Ms. Vrushali Banodkar. In EA/17/140 executant/complainant present in person. Opponent/accused No. 2-Mr. Rajesh Gade present a/w Ms. Anjali Risbud. Heard submissions of both parties at the Bar.

We had passed final order in consumer compliant No. 108/2010 & 109/2010 on 11/12/2015 whereby both complaints filed by Mrs. Minaxi Banodkar and Mrs. Vrushali Banodkar were allowed by this Commission with costs quantified in the sum of Rs.35,000/- payable by opponents to each complainant in both complaints and opponents were also directed to hand over vacant and peaceful (unencumbered) possession of self-contained tenement admeasuring 415 sq. fit carpet area in complaint no. 108/2010 and 374 sq. ft. carpet area in complaint No. 109/2010. Alternatively, opponents were directed to give vacant and peaceful possession of tenements of identical size in the same locality within 45 days from the date of final order. Further, in the second alternative at the option of the complainants, amount was payable as per Ready Reckoner price issued by the Government of Maharashtra for the tenements. Apart from these reliefs, opponents were also directed to pay compensation with effect from 01/01/2007 till 10.12.2015 @ 2,500/- per month together with interest @9% p.a. if there is no compliance within 45 days. Compensation on account of mental anguish was granted in the sum of Rs. 3 lakhs in each of the complaint.

We had recorded statement of Mr. Rajesh Gade, who is before us as Partner of M/s Dwelling House Construction Company along with one Mr. Jitendra Gade. Both of them are residing n Pushpa Apartment, Near Club Aquaria, Borivali (West), Mumbai 400 092. Executants/complainants alleged that they have left their last known residence and residing elsewhere and with great efforts presence of one of them i.e. Mr. Rajesh Gade could be sought through aid of this State Commission. We had recorded statement of Mr. Rajesh Gade, who admitted in his statement that he is Partner of M/s Dwelling House Construction Company and has not paid amount of Rs.35,000/- towards costs. He has also admitted that he had not handed over possession of self-contained tenements as directed in the final order of the complaints and has not complied with monetary part of the order. He had assured us that he will pay money and he needed time as on 25.04.2018. He feigned ignorance about Mr. Jitendra Gade, who is his real younger brother. There is no appeal pending in the Superior Fora or Hon'ble Supreme Court of India. Final order was passed long back on 11.12.2015 and since, no appeal is filed to challenge that final order; it became enforceable as final order.

Since there is no compliance and Mr. Jitendra Gade, one of the partners of opponent remained elusive and absent despite efforts taken by the executant/complainants to compel his presence. In the absence of compliance of final order, in view of Section 27 of the Consumer Protection Act, 1986 we must record the finding that there is no bona fide intention on the part of the opponents to comply with the final order as passed in Complaint No. 108/2010 and Complaint No. 109/2010 and therefore, there is deliberate disobedience to comply with the final order. In our view, therefore, when one of the Partner-Mr. Jitendra Gade is avoiding process of this Commission to attend this Commission, we have to take Mr. Rajesh Gade in custody and direct that he shall remain imprisoned till he complies with the final order subject to maximum imprisonment of three years as contemplated under Section 27 of the Consumer Protection Act, 1986. We also direct issuance of Non-bailable Warrant against another Partner-Mr. Jitendra Gade so as to compel his attendance before us to face the execution proceedings initiated against him for non-compliance of the final order. In case, compliance is made of the final order, needless to state that convict shall be released forthwith.

Both matters stand adjourned to 09.10.2018."

(emphasis supplied by us)

Learned counsel for the appellant drew our attention in particular to para 9 a. to d. of the memo of appeal:

It is apparent from the proviso of section 27(3) of The Consumer Protection Act, that the State Commission in the instant matter has power to Act as Judicial Magistrate First Class and to try the offences by way of Summary Trials. In view of this mandate the following points are specifically raised before this Hon'ble Court.

a. No Summary trial is conducted

b. Procedure for the same has not been followed.

c. The proviso of section 262(2) of Cr.P.C. has specifically confined the jurisdiction of the JMFC to impose the sentence and in summary trials maximum sentence of imprisonment of three months only can be awarded and not more than that.

d. Thus, it is apparent that the State Commission while acting and exercising powers as JMFC has travelled beyond the scope of its jurisdiction in the summary trial to punish the appellant.

(emphasis supplied by us)

Learned counsel also drew our attention to Para 13 of Hon'ble Supreme Court's Judgment dated 10.02.2015 in Kamlesh Aggarwal vs. Narain Singh Dabbas and Anr. (2015) 11 SCC 661:

"13. We have heard both the learned counsel on behalf of the parties. In the facts and circumstances of the case, we are of the view that the State Commission should have remanded the matter to the District Forum after setting aside its order dated 26.11.2010 with a direction to proceed with the matter in accordance with the procedure contemplated under the Code of Criminal Procedure referred to supra for taking penal action against the respondents who are the officers concerned of Navchetna Sahkari Awas Samiti Ltd. for non-compliance with the order.

(emphasis supplied by us)

Learned counsel further drew our attention to section 27 of the Act 1986:

Penalties. - (1) Where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person or complainant 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 two thousands rupees but which may extend to ten thousand rupees, or with both:

(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974), the District Forum or the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of the first class for the trial of offences under this Act, and on such conferment of powers, the District Forum or the State Commission or the National Commission, as the case may be, on whom the powers are so conferred, shall be deemed to be a Judicial Magistrate of the first class for the purpose of the Code of Criminal Procedure, 1973 (2 of 1974).

(3) All offences under this Act may be tried summarily by the District Forum or the State Commission or the National Commission, as the case may be.

(emphasis supplied by us)

That the relevant provisions of the Act 1986 and the relevant procedures under the Cr.P.C. have to be adhered to is to but state the obvious. We find no need to attempt an interpretation of the Act 1986 or of the Cr.P.C. here, it is not necessary and would be misplaced in the present context. However, in respect of the insistent reference of learned counsel to "the proviso of section 262(2) of Cr.P.C." and to "the State Commission - - - has travelled beyond the scope of its jurisdiction in the summary trial to punish the appellant" (as averred in para 9 c., d. of the memo of appeal (reproduced in para 4 above)), we may refer to sub-section (1) & (3) of section 27 of the Act 1986 (reproduced in para 6 above) and to sub-section (1) & (2) of Section 262 in Chapter XXI (Summary Trials) of the Cr.P.C. (reproduced below):

Procedure for summary trials.-(1) In trials under this Chapter, the procedure specified in this Code for the trial of summons-case shall be followed except as hereinafter mentioned.

(2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter.

It is erroneous to aver that "All offences under the Act may be tried summarily" in sub-section (3) of section 27 of the Act 1986 and "No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter" in sub-section (2) of Section 262 in Chapter XXI (Summary Trials) of the Cr.P.C. implies that "subject to maximum imprisonment of three years" in the impugned Order is beyond the scope of the State Commission's jurisdiction. Sub-section (1) of section 27 of the Act 1986 provides for imprisonment which may extend to three years. Sub-section (1) and sub-section (2) of section 262 of the Cr.P.C. have to be read together, and they together mean that for sentence of imprisonment for a term exceeding three months the procedure specified for the trial of summons-case (Chapter XX) shall be followed. Keeping the eyes closed to sub-section (1) of Section 27 of the Act 1986 and to sub-section (1) of section 262 of the Cr.P.C., and only reading sub-section (3) of Section 27 of the Act 1986 and sub-section (2) of section 262 of the Cr.P.C. in isolation, is erroneous.

The complete record of the proceedings in the State Commission has not been filed by the appellant-accused no. 2 - Rajesh Gade with his memo of appeal. The onus was on him. However, we note that the impugned Order of the State Commission is in itself self - contained and self - speaking.

We note in particular:

(a): The underlined portion of the impugned Order dated 06.09.2018 (reproduced in para 3 above).

(b): The final Order under execution was passed on 11.12.2015. Since then, till the date of the impugned Order in the execution proceedings i.e. till 06.09.2018, no appeal was filed to challenge the final Order. No appeal was pending in superior fora / Hon'ble Supreme Court. Accordingly on the relevant date i.e. on 06.09.2018 the State Commission was right in observing that the Order dated 11.12.2015 became enforceable as final Order (within the meaning of section 24 of the Act 1986).

(c) In the execution proceedings, the appellant accused no. 2 - Rajesh Gade was present in person as well as with his advocate. He had notice, the particulars of the offence were stated / known to him, he was present in the court, he had his advocate, he was heard, his statement was recorded. In his statement he admitted that he is Partner of Dwelling House Construction Company - judgment debtor no. 1 company, he admitted to the failure and omission to comply with the directions contained in the final Order. He had earlier assured that he will pay money and needed time as on 25.04.2018. Till the date of the impugned Order, i.e. till 06.09.2018, there was no compliance. Failure and omission to comply with the directions contained in the final Order dated 11.12.2015 were clearly admitted / undisputed / determined.

There is no denial of the due opportunity and no infirmity on the court of the due procedure.

(d): The State Commission has not erred in taking the appellant-accused no. 2 - Rajesh Gade in custody and directing that he shall remain imprisoned till he complies with the final Order subject to maximum imprisonment of three years as contemplated under section 27 of the Act 1986. No prejudice or injustice has been caused to the appellant - accused no. 2 - Rajesh Gade. The State Commission has clearly directed that in case compliance is made of the final Order, the convict shall be released forthwith.

We find no jurisdictional error, or infringement of any provision of the Act 1986 or of any procedure under the Cr.P.C., or material irregularity, or any element of miscarriage of justice, in the State Commission's impugned Order. It is lawful.

Regarding the bail application submitted with the memo of appeal, we note that the State Commission has recorded that the appellant-accused no. 2 - Rajesh Gade feigned ignorance about accused no. 3-Jitendra Gade, who is his real younger brother. The State Commission directed issuance of non-bailable warrant against accused no. 3 - Jitendra Gade - another partner in the judgment debtor company-OP no. 1. The State Commission recorded that there is no bonafide intention on the part of the opponents (judgment debtors) to comply with the final Order and there is deliberate disobedience to comply with the final Order. In respect of the averment made in para 10 of the memo of appeal that his health is not good, no medical record or certificate has been produced by the appellant-accused no. 2 - Rajesh Gade. We also note that a condition for release from custody has already been granted by the State Commission i.e. the appellant-accused no. 2 - Rajesh Gade be released forthwith in case compliance is made of the final Order. We thus find no merit in the bail application.

In the light of the above examination, the appeal as well as the bail application are dismissed. The Order dated 09.10.2018 of the State Commission is upheld and sustained.

'Dasti', in addition, at the request of learned counsel for the appellant.