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Judgment
THIS petition has been filed by the complainant in the O.P. who has obtained an award against the opposite party in the P.P. The complainant seeks for an order of arrest of the respondent/opposite party stating that he has failed to pay the award amount. Obviously, an order of arrest is sought for under Section 27 of the Consumer Protection Act.
THE respondent has filed a counter mainly contending that already another E.P. No. 5/94 was filed wherein a penalty was imposed, but that has not been implemented, and therefore this second petition will not lie. It is further contended that in compliance with the directions of the High Court in a proceeding before it in connection with this matter, the respondent has already paid a sum of Rs. 94,575/-. THEn it is contended that as per the order in the O.P., the complainant has to deliver the dish antenna to the respondent but he failed to do so. THEn, it is stated in the counter that an ex-parte award against the respondent has been passed and his petition for setting aside the ex-parte award has been dismissed, and thus he had no opportunity to contest the O.P. and if he had been given the chance, he would have shown the hollowness of the complaint. Thus stating, the respondent has prayed for dismissal of the Execution Petition. The decretal portion of the award passed in the O.P. is as follows : 6. In the result, we order as follows : "(1) The opposite party shall pay to the complainant, the price of the dish antenna namely Rs. 1,15,000/- with interest @ 18% p.a. from the date of sale, i.e., 7.10.1991 and take back the dish antenna. (2) The opposite party shall also pay a sum of Rs. 25,000/- as compensation to the complainant. (3) The opposite party shall also pay a sum of Rs. 2,000/- as costs."
The order clearly states that on payment of the amount decreed against the opposite party, the opposite party shall take back the dish antenna from the petitioner. Therefore, so long as the opposite party fails to pay the award amount, he cannot complain against the petitioner stating that he failed to deliver the dish antenna. It is submitted before us that the dish antenna is now damaged and it will be of no worth to the opposite party. If that be the case, it had happened so only because of the fault of the opposite parry since he delayed payment of the award amount and taking back the dish antenna. The order does not say that the petitioner shall give back the dish antenna in the same condition as it was at the time of order. Therefore, there is no merit in the contention of the respondent/opposite party that the petitioner failed to deliver the dish antenna. The other contention of the opposite party that already a penalty order has been passed and that has not been implemented and therefore the present petition is not maintainable, is without any substance. The earlier order has been passed for the arrest of the respondent, but it appears that order has been stayed by an order of the High Court and hence the E.P. was closed, and now the present E.P. has been filed. At present, there is no stay of the High Court or any other Court as against the award. Hence, the present petition is quite maintainable. The award has been passed as early as 11.10.1993 and still there is a large amount not paid by the respondent. It appears that the respondent tried to defeat the award by taking recourse to some extraneous proceedings. Thus, we find no merit in the counter filed by the respondent/opposite party.
HOWEVER, in the present petition, an order under Section 27 of the Consumer Protection Act is sought for. According to the petitioner, the respondent/opposite party failed or omitted to comply with the order of award passed by this Commission. But in the order, which we have seen above, it has not been specifically mentioned that the respondent shall pay the award amount within any particular time. Mere failure to pay the award amount will not amount to failure or omission to comply with the order of the Consumer Forum as stated under Section 27 of the Consumer Protection Act, because, the opposite party against whom the award is passed will always say that he is trying to satisfy the award. Thus considering, taking into consideration all the facts and circumstances of the case, we give the respondent/opposite party one month''s time for payment of the award amount from today. If he does not pay so, then it will amount to failure or omission to comply with the order passed by this Commission as stated under Section 27 of the Act. Call on : 25.11.1997. E.P. No. 23 of 1997 in O.P. No. 347/1993 Dissenting order passed by Pulavar V.S. Kandasamy, Member-I.
1 REGRET that I am unable to agree with the majority order. This Execution Petition has been filed to execute the ex parte order passed in O.P. No. 347/1993. In para 5 of the ex parte order it is stated : "The complainant is entitled to get back the price of the dish antenna namely, Rs. 1,15,000/- and return the dish antenna to the opposite party (Emphasis supplied)." In para 6 of the same order, it is stated as under: "The opposite party shall pay to the complainant, the price of the dish antenna namely, Rs. 1,15,000/- with interest @ 18% from the date of sale i.e., 7.10.1991 and take back the dish antenna. (Emphasis supplied) Thus, it is abundantly clear that on return of the price of the dish antenna, the respondent/ opposite party should get back the dish antenna. However, in the instant case, the petitioner/ complainant himself has stated that the dish antenna was damaged when it was in his custody and this is a new development. Thus, the circumstances which existed when the order in O.P. No. 347/1993 was passed, has changed significantly. Therefore, the original order passed in O.P. No. 347/1993 has now become in executable in toto. In other words, even if the respondent/opposite party is ready to pay the balance of the decreed amount, the dish antenna is not available for him to take back, (in this connection, it is pertinent to mention that the respondent/opposite party had paid on 19.3.1996 a sum of Rs. 94,575/- to the petitioner/ complainant and this fact has been confirmed by the latter. The ex-parte order in O.P. No. 347/1993 is conditional, in the sense that it consists of two parts viz. (i) the respondent/opposite party would return the price of the dish antenna to the petitioner/ complainant, (ii) he would take back the dish antenna from the petitioner/complainant. In other words, the petitioner/complainant would return the dish antenna to the respondent/ opposite party on receipt of the payment of the price.
NOW, it is not in dispute that the dish antenna is damaged when it is in the custody of the petitioner/complainant and is not available now for the respondent/opposite party to take back, even if the remaining balance of the decreed amount is paid. It means that the ex parte order in O.P. 347/1993 cannot be executed in its original form in which it was passed. Apparently, on account of this, the majority order in the E.P. No. 23/1997 contains direction to execute only a part of the order contained in O.P. No. 347/1993. In other words, the majority order contains directions to execute ex parte order in O.P. No. 347/1993 in a multilated form and therefore it cannot be sustained in law.
THE directions contained in the majority order are contrary to the ratio laid down by the National Commission in the case of Ashish Kumar Biswas v. DDA and Others, II (1996) CPJ 154 (NC)=1986-96 National Commission & Supreme Court on Consumer Cases Part II 2299. In that case, the National Commission held that the basic order could not be amended, modified or varied in the proceedings under Section 27. THE directions contained in the majority order, if carried out, would result in unjust enrichment to the petitioner/complainant and would cause undue loss to the respondent/opposite party. THEre is neither justice nor morality in the contention of the petitioner/complainant that he is only interested in getting back the price paid by him for the dish antenna and he is not at all bothered to return the dish antenna in the same condition in which it was when the original order in O.P. No. 347/1993 was passed. If the respondent/opposite party returns the price of the dish antenna to the petitioner/complainant the latter should return the dish antenna. It will be against canons of equality and the principles of natural justice to direct the respondent/ opposite party to return the price of the dish antenna when there is no chance of his getting back the dish antenna from the petitioner/ complainant it would amount to double jeopardy to the respondent/opposite party. Be that as it may, a perusal of the records shows that in this case, the Original Petition was posted for hearing only once and finding no representation for the opposite party on that day, the opposite party was set ex-parte about which the opposite party was absolutely unaware. Thereafter, ex-parte final order was passed. Thus, it is clear that no reasonable opportunity was given to the respondent/ opposite party to represent his case before casting a heavy financial burden on him.
Secondly, there is no independent expert evidence, except the self-serving statement of the petitioner/complainant to prove that the dish antenna was not functioning properly. The dish antenna is a sensitive plant or equipment and its functioning depends upon how it is handled and maintained. In the case on hand, the complaint was filed at the fagend of the warranty period.
THIRDLY, and this is very important that the respondent/opposite party has asserted that the dish antenna was purchased by the petitioner/ complainant for commercial purpose, in the sense that the petitioner/complainant was running a cable T.V. network to cater to the needs of hundreds of customers. Admittedly, the petitioner/complainant had another dish antenna also and this is evident from the order in O.P. No. 347/1993 itself, the relevant portion of which is reproduced below : "The complainant has purchased extra parts for the dish antenna, but he is making use of them for another dish antenna." The dish antenna is a costly plant or equipment and to run a Cable T.V. network with the help of two or more dish antennae require the services of a number of employees and investment of a large amount. Even so, the petitioner/complainant''s self-serving statement that if was for the purpose of self-employment'' was taken for granted and the ex-parte order was passed on that basis only. Fourthly, the respondent/opposite party''s petition requesting to set aside the ex- parte order, which was filed within a few days from the date of passing the ex-parte final order, was summarily rejected by the Commission on the ground of lack of jurisdiction. Thereafter, on the directions of the Madras High Court, the respondent/opposite party''s petition to set aside the ex-parte order was entertained, only to be dismissed.
FIFTHLY, the learned Counsel to whom the respondent/opposite party entrusted his case, did not even advise the latter to file appeal in this case on merits before the National Commission against the ex-parte order. Thus, the case of the respondent/ opposite party seems to be a case of failure of justice from the beginning. I am aware that any of the five points mentioned by me in the preceding paragraphs cannot undo the ex-parte order which has now become final. But, in appreciation of the matter before this Bench now, these are relevant facts which cannot be totally ignored. In giving effect to an ex-parte order, especially in a case like the one on hand all the relevant facts relating to the transactions are required to be considered in view of the fact that the petitioner/complainant is unable to carry out his obligations enjoined by the order when such obligation is the consideration of the relief granted to him. I hasten to add that my conclusion would not be different even if I did not have these facts before me. As long as the petitioner/complainant is unable to comply with the condition, the changed situation warrants the review of the relief (not review of the order) which should be fair to both the parties. Law does not recognise what is impossible, which in this case is the inability of the petitioner/complainant to return the dish antenna. I would not for this reason penalise him by relieving the respondent/ opposite party completely.
IN the light of what is stated above, it would be a travesty of justice if the respondent/ opposite party is directed to return the price of the dish antenna without ensuring that he is getting back his dish antenna. The learned Counsel for the respondent/opposite party pleaded that if at least, the dish antenna is returned, the respondent/opposite party can sell it and utilise the sale proceeds to pay the remaining balance of the decreed amount to the petitioner/ complainant. It needs hardly to be stated that the dish antenna should be returned in the same condition in which it existed when the order in O.P. No. 347/1993 was passed. It is contended that the original order does not say that the petitioner/complainant shall give back the dish antenna in the same condition as it was at the time of the order. To counter such a superficial argument, it is enough to say that the original order does not say that the dish antenna could be returned in a damaged or useless condition, even after the price amount is returned in full, alongwith compensation and interest @ 18% p.a. from the date of sale. If such a contention is stretched a little further, the petitioner/ complainant may go to the extent of saying that the original order does not say that the respondent/opposite partly can enter the former''s premises to take back the dish antenna which is fixed on the second floor of his building and so the latter cannot be permitted to enter his premises for the purpose of taking back the dish antenna. On such an argument, the less said the better.
THE return of the dish antenna is a condition precedent for the return of the price of the plant/equipment. Hence, there is much force in what the respondent/opposite party has stated in his reply filed in E.P. No. 23 /1997, the relevant portion of which is reproduced below : "Payment of money return of the price of the dish antenna to the complainant and taking back the dish antenna by the respondent are integral part of the same portion of the order. If one portion has become incapable of being complied with, it would be inequitable to compel the respondent to comply with his part of the obligation alone." This contention of the respondent/opposite party is quite justifiable and therefore, I uphold it. The petitioner/complainant has contended that because of the delay caused by the respondent/opposite party in taking back the dish antenna, it was damaged. The respondent/opposite party''s efforts to seek remedy from the higher Courts/Forums to set aside the ex-parte order in O.P. No. 347/1993 and to get what he thought and what his Counsel advised him to be justice is his constitutional right. It does not cease to be a right merely because he failed in getting the ex-parte order restored for a hearing on merits. Should he be made to suffer for exercising his constitutional right before the High Court or his right of appeal to the National Commission? I am afraid, to assume that this exercise of his right should lose him the limited right which he had to get back his dish antenna even in the ex parte order. The view that he should lose the right which he had in the ex-parte order, merely because he exercised his constitutional right or appellate right, would tantamount to further punishment. It is not in dispute that the dish antenna was damaged when it was in the custody of the petitioner/ complainant. So long as the petitioner/ complainant is not in a position to return the dish antenna to the respondent/opposite party in the same condition in which it was on the date of passing the original order, he has no locus standi to ask for the execution of the ex-parte order in O.P. No. 347/1993. The petitioner/complainant has to get the dish antenna repaired and return it in the same condition in which it existed on the date of passing the original ex-parte order, before be is entitled to get back the remaining balance of the decreed amount.
In the light of the discussion above and on the facts and in the circumstances of the case, the respondent/opposite party is directed to pay the remaining balance of the decreed amount on return of the dish antenna by the petitioner/ complainant, after it is repaired and brought back to the same condition in which it existed on the date of passing the order in O.P. No. 347/ 1993. If for any reason it is not possible to get the dish antenna repaired by the petitioner/ complainant, the respondent/opposite party will pay 25% of the remaining balance of the decreed amount. In arriving at this quantum, the fact that the dish antenna was utilised by the petitioner/ complainant for eleven months, and it is still in his custody, the warranty period is only one year, the state of depreciation allowable for such plant for one year and a sum of Rs. 94,575/- has already been paid by the respondent/opposite party on 19.3.1996 have been taken into account. Failure to do so will amount to failure or omission on the part of the respondent/opposite party to comply with the original order passed by this Commission and will attract the provisions under Section 27 of. the Consumer Protection Act. Time: One month from the date of receipt of this order. Petition disposed of.