Bombay High Court
Sachin S/O Ramdas Mittal And ... vs Rashmi W/O Milind Bujone on 25 April, 2022
Bench: Avinash G. Gharote
2504 APL 1039 of 2021.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO.1039/2021
Shri Sachin s/o Ramdas Mittal and another
...Versus...
Mrs. Rashmi w/o Milind Bujone
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --- -
Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ----- ------------ -
Shri A.S. Samdekar, Advocate for applicants
Shri Vivek Awchat, Advocate for respondent
CORAM : AVINASH G. GHAROTE, J.
DATE : 25/04/2022
1. Heard Shri Samdekar, learned Counsel for the
applicants and Shri Awchat, learned Counsel for the
respondent.
2. The application challenges the orders dated
12/04/2018 and 02/03/2021, by which, in a proceeding
under Section 27 (1) of the Consumer Protection Act, 1986
(for short, "the C.P. Act, 1986" hereinafter), issuance of
summons to the applicants, who are the respondents therein,
are sought to be quashed.
3. Shri Samdekar, learned Counsel for the
applicants, submits that before issuing the summons, there is
no finding rendered by the learned Forum, regarding the
2504 APL 1039 of 2021.odt
default, being wilful or without sufficient means, and
therefore, the impugned orders need to be quashed and set
aside. Reliance is sought to be placed upon Dayle De'souza
Vs. Government of India through Deputy Chief Labour
Commissioner, (C) and others, AIR 2021 SC 5626 and Maksud
Saiyed Vs. State of Gujarat and others, (2008) 5 SCC 668 in
support of the said contention.
4. Shri Awchat, learned Counsel for the respondent
opposes the application and submits that the applicants, have
suffered an order from the District Consumer Forum, dated
06/02/2017 (pg.10), in which, in a consumer complaint case
filed by the respondent, the learned Consumer Forum has
directed the applicants to refund an amount of Rs.15,61,000/-
with interest @ 9% per annum from 17/07/2013, till its
refund along with Rs.20,000/- for harassment and Rs.10,000/-
costs. He, therefore, submits that on account of
non-compliance with the aforesaid order, proceedings under
Section 27 (1) of the C.P. Act, 1986 were initiated, in which,
by the impugned orders, summons have been issued to the
applicants and there is nothing wrong with the impugned
orders, considering which, the application needs to be
dismissed.
5. It is not disputed that the present respondent had
filed Complaint Case No.CC./95/2016 against the present
2504 APL 1039 of 2021.odt
applicants on account of the applicants having executed an
agreement on 03/09/2011, for sale and purchase of a flat to
be built by the present applicants for a total consideration of
Rs.19,00,000/-. A finding has been rendered that an amount
of Rs.15,61,000/- was received by the present applicants from
time to time from the respondent and since they had failed to
comply with the said agreement, the respondent/original
complainant was liable to refund the aforesaid amount under
the final order dated 06/02/2017.
6. It is this final order dated 06/02/2017, which has
been put for enforcement in Execution Application (EA)
No.32/2018 by the respondent, in which, the impugned orders
summoning the applicants have been passed, for
non-compliance of the order dated 06/02/2017.
7. Prima facie, the existence of the final order dated
06/02/2017, passed by the learned District Forum is not in
dispute. It is also admitted by learned Counsel for the
applicants, that this order has not been challenged in any
further proceedings before the State Commission or the
National Commission in appeal under the provisions of the
Consumer Protection Act, 1986, as a result of which, the same
has become final and binding upon the applicants. It is also
not disputed by learned Counsel for the applicants that
compliance with the order dated 06/02/2017 has not been
2504 APL 1039 of 2021.odt
done by the applicants, except for deposit of an amount of
Rs.2,00,000/- or odd before the learned Consumer Forum in
E.A. No.32/2018. It is thus apparent that the order dated
06/02/2017 has not been complied with. Non-compliance of
an order passed by the Forum/Commissions has been made a
penal offence under the provisions of Section 27 (1) of the C.P.
Act, 1986, punishable with imprisonment up to three years
and fine up Rs.10,000/-. The provisions of Section 27 (2) of
the C.P. Act, 1986, which are pari materia with the provisions
of Section 72 (2) of the Consumer Protection Act, 2019
mandate that for the trial of offences under Section 27 (1) of
the C.P. Act, 1986, the learned Forum/Commissions have been
deemed to be Judicial Magistrate First Class, also under the
Code of Criminal Procedure and Section 27 (3) of the C.P. Act,
1986 further mandates that such a trial has to be of a
summary nature. That being the position, in my considered
opinion, in view of the admitted position that there has been
no compliance with the order dated 06/02/2017, passed by
the learned Forum, except for deposit of the aforesaid amount,
as stated on record, no fault can be found in the impugned
orders, which merely issue summons to the respondents.
A perusal of the complaint under Section 12 of the Consumer
Protection Act (pg.47) indicates, that in para 2, the status of
the applicant nos.2 and 3 as Directors of the applicant no.1
has been stated, so also in para 5 thereof, it has been
specifically averred that the applicant no.2 being one of the
2504 APL 1039 of 2021.odt
Directors of the company, was a signatory to the registered
agreement of sale dated 03/09/2011. The final judgment
dated 06/02/2017 indicates that the present applicants did
not appear before the District Forum in spite of notice having
been served upon them and therefore, there is no statement of
defence or any pleas raised by them. It is, therefore, apparent
that any plea regarding the default being not wilful or the
applicants having not complied with the order dated
06/02/2017 in spite of having sufficient means are not the
pleas, which are available to the present applicants at the
stage of issuance summons by the learned Forum, where it is
only to consider whether there is an order and it is not
complied with, both of which positions, are extant, in the
present case. Reliance upon Dayle De'souza and Maksud
Saiyed (supra) by the learned Counsel for the applicants are
clearly misplaced for the reason that the proceedings in the
instant matter are not governed by the Code of Criminal
Procedure, but by the provisions of Section 27 (2) and (3) of
the C.P. Act, 1986, which specifically prescribe for trial of
offences under Section 27 (1) of the C.P. Act, 1986 in a
summary manner, considering which, they have no
applicability to the present matter.
8. In view of the above discussion, I do not find any
perversity in the impugned orders, as the trial of the offence
under Section 27 (1) of the C.P. Act, 1986 is still in the offing
2504 APL 1039 of 2021.odt
and in case it is so permissible in law, all the pleas, which are
raised in the present application, for quashing, may be
available to the applicants in the proceedings under Section 27
(2) of the C.P. Act, 1986. The criminal application is therefore
dismissed.
(AVINASH G. GHAROTE, J.)
Wadkar
Digitally signed bySHAILENDRA
SUKHADEORAO WADKAR
Signing Date:25.04.2022 17:15
