Bombay High Court
Shoeb Asad S/O Shakeel Ahmad vs Sunitkumar S/O Kashinath Bhaumik on 21 June, 2022
Bench: V. G. Joshi
Order 2106wp384.22
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 384/2022.
Shoeb Asad Shakeel Ahmad.
-VERSUS-
Sunitkumar Kashinath Bhaumik,.
Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
Shri J.M. Gandhi, Advocate for the Petitioner.
.....
CORAM : VINAY JOSHI, J.
DATE : JUNE 21, 2022.
Heard learned Counsel for the petitioner.
2. The petitioner, a seller of open plot has challenged
the judgment and order dated 03.04.2018 passed by the
District Consumer Forum, Nagpur on a complaint filed by the
respondent. The District Consumer Forum has partially
allowed the complaint and directed the petitioner in the
alternate form to pay the earnest amount along with interest
within stipulated period. Due to non-compliance of the order,
the respondent has filed execution petition in terms of Section
27 of the Consumer Protection Act. In the said proceeding, a
non-bailable warrant was issued against the petitioner. When
the petitioner applied for cancellation of the said non-bailable
warrant, it was rejected, as well as the cash surety of
Rs.30,000/- was forfeited. This order passed inRAKESH
the GANESHLAL
executionDHURIYA
21.06.2022 17:36
Rgd.
Order 2106wp384.22
is also subject matter of challenge in this petition.
3. The learned Counsel for the petitioner would
submit that the subject matter of dispute pertains to sale of an
open plot. According to him the petitioner was not indulging
into construction business, and therefore, the transaction does
not falls within the purview of the Consumer Protection Act.
In support of said contention reliance is placed on the
judgment of Supreme Court in case of Ganeshlal vrs. Shyam
(2014) 14 SCC 773.
Moreover, it is argued that when the judgment and
order passed by the Court is without jurisdiction it is a nullity,
and therefore, it can be set aside at any stage in any
proceedings. In support of said contention, the petitioner
sought to rely on the judgment of Supreme Court in case of
Kiran Singh and others .vrs. Chaman Paswan and others (AIR
1954 SC 340).
On the point of maintainability of writ petition,
heavy reliance is placed in case of Whirlpool Corporation .vrs.
Registrar of Trade Marks and others (1998) 8 SCC 1. It is
argued that since the penalty clause was invoked on the basis
of an order passed without jurisdiction, it violates the
fundamental right to liberty and therefore, this Court can
step-in in writ jurisdiction. On the similar line, some other
judgments have been relied to impress that despite alternative
remedy, this Court can exercise writ jurisdiction.
4. On facts the learned Counsel for the petitioner
took me through the agreement to impress that the
transaction purely relates to sale of an open plot. The
RAKESH GANESHLAL DHURIYA
21.06.2022 17:36
Rgd.
Order 2106wp384.22
document does not give sense that either the petitioner was
doing construction business or providing constructed housing
service. Having regard to these facts, the matter requires
consideration. Keeping the point of maintainability open,
issue notice to the respondent returnable on 11.07.2022.
5. In the meantime further proceeding in Execution
Application No. EA-150/2018 shall stand stayed.
6. The Consumer Dispute Redressal Forum shall keep
the warrant of arrest in abeyance till further orders.
JUDGE
RAKESH GANESHLAL DHURIYA
21.06.2022 17:36
Rgd.
