Cooperative Bank Ltd vs Bipradas Kumar & Ors
2023 Latest Caselaw 37 Cal

S/L 12
03.01.2023

Court No.652 SD CO 4305 of 2019

The Chief Executive Officer, Malda District Central Cooperative Bank Ltd.

Vs.

Bipradas Kumar & Ors.

Mr. Sobhendu Sekhar Roy Mr. Amarendra Chakraborty Mr. Arghya Banerjee ... for the Petitioner.

Mr. Avishek Prasad Ms. Sreetama Neogi ... for the Opposite Party No.1.

Being aggrieved by Order No.9 dated 09.9.2019

passed by the learned District Consumer Disputes Redressal

Forum, Malda in Execution Case No.05 of 2018 arising out

of CC/10/2017, present revisional application has been

preferred.

The petitioner contended that the opposite party

herein, as complainant, filed a consumer complaint case

before the District Consumer Dispute Redressal Forum,

Malda, West Bengal praying for a direction upon the

opposite party nos.2 and 3 herein to refund the entire money

of Rs.2,37,116/- along with Rs.50,000/- for mental agony

and harassment within 45 days from passing of the order.

The aforesaid complaint case was came up for hearing

before learned District Redressal Forum, Malda and after

hearing the complainant, the learned Forum was pleased to

dispose of the said application directing the petitioner herein

to refund the earnest money of Rs.2,37,116/- to the opposite

parties herein and also to pay compensation for mental

agony and harassment for Rs.50,000/- within 45 days from

the date of order.

The petitioner herein has not filed any appeal before

the State Consumer Dispute Redressal Commission and now

the opposite party no.1 being the decree-holder in the

complaint case filed an application for execution of the order

dated 18.9.2018 passed by the District Forum. The

petitioner herein had entered appearance on 09.9.2019 and

filed one application for recalling of the order dated

18.9.2018. The said application was came up for hearing

before the learned Forum, when learned Forum after hearing

both the parties was pleased to reject the petitioner's prayer

for recalling of the aforesaid order and was pleased to issue

warrant of arrest against the opposite parties.

Mr. Sobhendu Sekhar Roy, learned counsel appearing

on behalf of the petitioner, contended that the order passed

by the learned Forum is illegal and has been passed without

any reason. The complainant is not a consumer as directed

under the Act as there never existed any transaction for any

goods or services. Opposite party no.1/decree-holder has

obtained the order dated 19.9.2018 by misrepresentation

and suppression of the actual scenario. Learned Forum

ought not to have passed such order issuing warrant of arrest

against the Government service holder who in no way

involved in any transaction and/or causing deficiency of

service. In fact, learned Forum below has exercised its

jurisdiction not vested in it by law and has failed to

appreciate the correct state of affairs.

He further contended that the learned Forum ought

to have given a proper hearing to the application of the

petitioner and should have given reasonable opportunity to

the petitioner herein before passing the order impugned.

Accordingly, petitioner prayed for setting aside the order

impugned.

The petitioner in this context has relied upon a

judgment of this Court passed in CO 1663 of 2021 on

04.11.2022.

Mr. Avishek Prasad, learned counsel appearing on

behalf of the opposite party no.1, submits that the Forum

had passed the impugned order dated 09.9.2019 against all

the opposite parties. However, the opposite party no.3 of the

said case is the petitioner herein who has challenged the

order impugned.

He further contended that from the order impugned,

it is clear that the Forum has clearly held that the opposite

parties are jointly liable to pay the amount awarded by the

Tribunal. From the order passed by the Forum in execution

proceeding being Malda D.F. Execution Case No.05 of 2018,

it appears that the notice of the execution case was duly

served upon the parties and the petitioner/opposite party

no.3 had appeared in the said execution proceeding and also

filed petition for recalling of the order passed by the Forum

on 18.9.2018. However, the said prayer was turned down.

He further submits that from the Order No.3 dated

20.02.2019, it appears that the judgment debtor no.1 after

appearance prayed time to enable the judgment debtor to

pay the awarded amount to the decree-holder. In spite of

such admission made on behalf of the judgment debtors,

they have not taken any initiative for payment of the said

amount and as such, the Forum was justified in issuing

warrant of arrest against the petitioner. Accordingly, the

order impugned does not call for any interference.

Considered the submissions made by both the parties.

It appears from the Order No.6 dated 09.9.2019 that

the Forum had taken up for hearing the judgment debtor

no.3/petitioner's petition for recalling the order dated

18.9.2018 and was pleased to reject the said prayer.

However, the petition filed by the opposite party/decree-

holder on 17.7.2019 for issuance of warrant against the

judgment debtors was allowed without assigning any reason.

It is needless to mention that under section 13(5) of

Consumer Protection Act, 1986, every proceeding before the

forum shall be deemed to be a judicial proceedings within

the meaning of section 193 and 228 of the I.P.C. and district

forum shall be deemed to be a civil court for the purpose of

section 195 chapter XXVI of the Code of Criminal Procedure.

Sections 25 and 27 of the Act provides for speedy

enforcement of the orders of the forum, which are in the

nature of execution proceedings of the orders made by the

Redressal authority and Section 25 of the Act provides for

enforcement of such orders by a civil process, as if they are

decree or order of civil court, whereas section 27 of the Act

confers a quasi criminal sanction for their enforcement by

way of punishment with imprisonment or imposition of

monetary penalties. Accordingly section 25 should be read in

conjunction with section 27. There is no other provision for

execution in the Act nor there is any rule to that effect.

Section 25 is divided in two parts, the first part relates to

interim order passed under the authority of Section 13(3B)

while second part relates to recovery of money ordered to be

paid to the applicant by the adversary. Sub-sections (1) and

(2) speak of attachment and sale of the property of the

opposite party who has contravened the interim order. The

relevant provisions for attachment and sale are provided in

order 21 rule 41 to 106 of the Civil Procedure Code.

In the present case, it appears that the opposite

parties/petitioner herein who is bound by the order, failed to

comply with the order during the period of its subsistence,

and as such, the commission in my opinion should have

passed the order for attachment of the property of the

opposite parties herein in order to recover the dues, before

issuance of warrant of arrest against the judgment debtors.

The warrant of arrest in such execution proceeding should be

issued as a last resort and as such, I am of the view that the

commission was not justified in issuing warrant of arrest

without exhausting process of attachment for not complying

the order of the commission regarding payment of decreetal

dues as ordered by the commission.

In this context, reliance has been placed in L & T

Finance Limited vs. Pramod Kumar Rana & Anr.

reported in (2021) SCC Online (SC) 1124 where the

national commission was pleased to issue bailable warrant

for producing the opposite party before the National

Commission on 18.10.2021. In the said proceeding Hon'ble

Apex Court was pleased to held "Be that it may, even the

review application against the order dated 26.08.2021 is

pending before the Tribunal. Therefore, in the facts and

circumstances of the case, issuance of the bailable warrants

against Shri Dinanth Mohandas Dubhashi, the Director of

original opposite party No. 2 was not warranted at this

stage. Bailable warrants are to be issued as a last resort

and only in a case where it is found that the opponent

parties are not co-operating at all and that they are

avoiding appearance before the national Commission

deliberately and /or they are not represented at all either

through their authorized representative or through their

counsel".

In view of above decision and for the reasons stated

above, the Order No.9 dated 09.9.2019 passed by the District

Consumer Disputes Redressal Forum, Malda directing

issuance of warrant against the present petitioner is hereby

set aside. However, it will be open for the commission to

pass further order including attachment of property for

recovery of decreetal dues after giving opportunity to both

the parties to represent their case relating to non-payment

and /or non-appearance before the forum. It will also be

open to the Forum to pass necessary direction to require

presence of the judgment debtors, if required, in future after

compliance of the provisions contemplated in Section 25 of

the Consumer Protection Act read with the relevant

provisions of the Code of Civil Procedure.

It is made clear that I have not expressed anything in

favour of either of the parties, on the allegations made in the

application and present application is allowed to the

aforesaid extent only.

CO 4305 of 2019 is accordingly allowed.

There will be no order as to costs.

Urgent photostat certified copy of this judgment, if

applied for, be supplied to the parties upon compliance with

all requisite formalities.

(Ajoy Kumar Mukherjee, J.)