Punjab-Haryana High Court
Arvind Aggarwal vs State Consumer Dispute Redressal ... on 21 December, 2023
Author: Sanjeev Prakash Sharma
Bench: Sanjeev Prakash Sharma
Neutral Citation No:=2023:PHHC:165233
CWP-28258-2023 1 2023:PHHC:165233
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
133
CWP-28258-2023
Date of Decision: 21.12.2023
Arvind Aggarwal
.....Petitioner
Versus
State Consumer Dispute Redressal Commission and Anr.
.....Respondents
CWP-28210-2023
Arvind Aggarwal
.....Petitioner
Versus
State Consumer Dispute Redressal Commission and Anr.
.....Respondents
CORAM: HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Present: Mr. Sahil Vij, Advocate for the petitioner.
****
SANJEEV PRAKASH SHARMA, J. (Oral)
1. The petitioner has preferred this writ petition assailing the order
dated 06.10.2023 (Annexure P-1) passed by respondent No. 1 namely the
State Consumer Dispute Redressal Commission, UT, Chandigarh (hereafter
referred to as 'the Commission') whereby it dismissed the miscellaneous
application moved by the petitioner for deleting his name from the array of
judgment debtors.
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2. Learned counsel for the petitioner submits that a complaint was
filed against M/s Raheja Developers Limited, before the Commission
seeking refund of the amount along with the guaranteed premium, interest,
compensation etc. as the company had delayed in providing services.
Several other allegations were levelled apart from the above in the complaint
and after having considered the said complaint, an order was passed on
21.02.2022 (Annexure P-3) by the Commission, whereby it directed as
follows:-
"In consumer complaint bearing No. 01 of 2021 the
developer/opposite party no.1 was directed as under:
i. To refund the entire amount of Rs.2,13,25,900/- paid by
the complainant alongwith the amount of guaranteed premium
compensation @ Rs. 1400/- per square feet of the area of unit
alongwith interest @18% p.a. from 22.09.2017 (60 days from
completion of 36 months from the date of booking of unit)
without deducting any TDS, within a period of 30 days, from the
date of receipt of a certified copy of this order and failure to do
so shall entail additional compensation of Rs.1000/- per day, till
realization.
It is made clear that in case any amount stood refunded to the
complainant out of the aforesaid amount of Rs.2,13,25,900/- and
guaranteed premium compensation, the same shall be deducted
accordingly, by the developer.
ii. To refund the amount to the complainant, if any, which
stood auto debited from his account by opposite party no.2-
ICICI Bank, towards equated monthly installments alongwith
taxes/miscellaneous charges, on the loan amount, alongwith
interest @12% p.a. from the respective dates of deductions till
realization, as it was the legal obligation of the developer to pay
the said EMIs, as agreed to, under the tripartite agreement and
also MOU aforesaid, which fact has not been disputed by the
developer.
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It is also made clear that the developer-opposite party
no.1 shall repay the entire pending/future EMIs alongwith
taxes/miscellaneous charges, of the loan amount, to opposite
party no.2-ICICI Bank, alongwith up-to-date interest on the loan
account and keep the complainant fully indemnified in this
regard, till the time refund of the aforesaid amount is made to
the complainant.
iii. To pay compensation for causing mental agony and
physical harassment; deficiency in providing service and
adoption of unfair trade practice and also cost of litigation, in
lumpsum, to the tune of Rs.1,50,000/- to the complainant within
a period of 30 days from the date of receipt of a certified copy of
this order, failing which, the said amount of Rs.1,50,000/-, shall
carry interest @ 9% p.a. from the date of passing of this order,
till realization.
In consumer complaint bearing No.02 of 2021 the
developer/opposite party no.1 was directed as under:-
i. To refund the entire amount of Rs.2,00,89,129/- paid by
the complainant alongwith the amount of guaranteed premium
compensation @ Rs.1400/- per square feet of the area of unit
alongwith interest @ 18% p.a. from 22.09.2017 (60 days from
completion of 36 months from the date of booking of unit)
without deducting any TDS, within a period of 30 days, from the
date of receipt of a certified copy of this order and failure to do
so shall entail additional compensation of Rs.1000/- per day, till
realization.
It is made clear that in case any amount stood refunded
the complainant out of the aforesaid amount of to
Rs.2,00,89,129/- and guaranteed premium compensation, the
same shall be deducted accordingly, by the developer.
ii. To refund the amount to the complainant, if any, which
stood auto debited from her account by opposite party no.2-
ICICI Bank, towards equated monthly installments alongwith
taxes/miscellaneous charges, on the loan amount, alongwith
interest @ 12% p.a. from the respective dates of deductions till
realization, as it was the legal obligation of the developer to pay
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the said EMIs, as agreed to, under the tripartite agreement and
also MOU aforesaid, which fact has not been disputed by the
developer.
It is also made clear that the developer-opposite party
no.1 shall repay the entire pending/future EMIs alongwith
taxes/miscellaneous charges, of the loan amount, to opposite
party no.2-ICICI Bank, alongwith up-to-date interest on the loan
account and keep the complainant fully indemnified in this
regard, till the time refund of the aforesaid amount is made to
the complainant.
iii. To pay compensation for causing mental agony and
physical harassment; deficiency in providing service and
adoption of unfair trade practice and also cost of litigation, in
lumpsum, to the tune of Rs.1,50,000/- to the complainant within
a period of 30 days from the date of receipt of a certified copy of
this order, failing which, the said amount of Rs.1,50,000/-, shall
carry interest @ 9% p.a. from the date of passing of this order,
till realization."
3. The order was required to be complied with within a period of
30 days however the same was not done and therefore an execution
application was preferred before the Commission under Section 72 of the
Consumer Protection Act read with Order 21 CPC and the petitioner was
shown as judgment debtor/respondent No.6 in the capacity of one of the
additional Directors/Directors. The petitioner upon service having been
effected on him moved an application for deleting his name from the array
of judgment debtor. It was stated by him that he has joined as Assistant Vice
President on 20.01.2021. He was offered directorship as a temporary
arrangement and he worked as a director for less than two months i.e from
28.06.2021 to 25.08.2021. He resigned from the Company on 25.08.2021
and prayed that his name should be deleted. Similar application was moved
in the other complaint case also. Both the applications were heard by the
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Commission and after considering the submissions, the applications were
rejected holding them to be not maintainable.
4. Feeling aggrieved by the said order, the present writ petitions
have been filed.
5. Learned counsel for the petitioner has relied on judgment
passed in the case of Karnataka Housing Board versus K.A.Nagamani, Civil
Appeal No. 4631 of 2019 decided on 06.05.2019 to submit that revision
petition would not lie against the order passed in execution proceedings by
the Commission to the National Commission and therefore the writ petition
would be maintainable against order passed in execution proceedings.
Learned counsel further submits that the Commission has erred in rejecting
the application for deleting the name of the petitioner from array of
judgment debtors and it has also erred to hold that the petitioner was looking
after the affairs of the Company and was responsible for running the project
in question. Learned counsel further submits that as the petitioner had
already submitted his resignation from the post of Director, before the
execution proceedings were initiated by the respondent, he could not have
been impleaded nor could he said to be responsible for the non-execution of
the orders passed by the Commission as he was no more connected with the
M/s Raheja Developers Limited already impleaded as judgment debtor No.
1.
6. Learned counsel submits that the e-mail sent by the petitioner to
the HR Team, very specifically mentions that the applicant has resigned.
Certain aspects mentioned in the letter have been erroneously taking into
consideration for rejecting the application moved by the petitioner for
deleting his name. It is submitted that the said averments made in the
application for resignation are with respect to the complaint made by the
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petitioner to Company of not properly cooperating with them and which has
resulted in petitioner to resign. Once his letter for resignation was taken on
record by the Commission, there was no occasion to continue the petitioner
as a judgment debtor. The application has been wrongly rejected.
7. I have considered the submission and perused the order passed
by the Consumer Commission.
8. At the outset, it is noticed that it is an interim order and there is
no final order passed by the Commission in the execution proceedings. The
Commission has not given any findings with regard to the liability of the
petitioner as a Director of M/s Raheja Developers Limited in reference to the
order passed by it in the main complaint case. It is settled law that a person
who is holding the post of Director in the Company can only be treated to
have resigned once the same is notified by the Registrar of Companies i.e
from the said date alone he does not remain on the Board of Directors of the
Company. Section 168 and 169 of the Companies Act, 2013, are reproduced
as follows:
"168. Resignation of director.-(1) A director may resign from
his office by giving a notice in writing to the company and the
Board shall on receipt of such notice take note of the same and
the company shall intimate the Registrar in such manner, within
such time and in such form as may be prescribed and shall also
place the fact of such resignation in the report of directors laid
in the immediately following general meeting by the company:
Provided that a [director may also forward] a copy of his
resignation along with detailed reasons for the resignation to
the Registrar within thirty days of resignation in such manner
as may be prescribed.
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(2) The resignation of a director shall take effect from the date
on which the notice is received by the company or the date, if
any, specified by the director in the notice, whichever is later:
Provided that the director who has resigned shall be
liable even after his resignation for the offences which occurred
during his tenure.
(3) Where all the directors of a company resign from their
offices, or vacate their offices under section 167, the promoter
or, in his absence, the Central Government shall appoint the
required number of directors who shall hold office till the
directors are appointed by the company in general meeting.
169. Removal of directors.-- (1) A company may, by ordinary
resolution, remove a director, not being a director appointed by
the Tribunal under section 242, before the expiry of the period
of his office after giving him a reasonable opportunity of being
heard:
[Provided that an independent director reappointed for second
term under sub-section (10) of Section 149 shall be removed by
the company only by passing a special resolution and after
giving him a reasonable opportunity of being heard.]
[Provided further that] nothing contained in this sub-section
shall apply where the company has availed itself of the option
given to it under section 163 to appoint not less than two-thirds
of the total number of directors according to the principle of
proportional representation.
(2) A special notice shall be required of any resolution, to
remove a director under this section, or to appoint somebody in
place of a director so removed, at the meeting at which he is
removed.
(3) On receipt of notice of a resolution to remove a director
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under this section, the company shall forthwith send a copy
thereof to the director concerned, and the director, whether or
not he is a member of the company, shall be entitled to be heard
on the resolution at the meeting.
(4) Where notice has been given of a resolution to remove a
director under this section and the director concerned makes
with respect thereto representation in writing to the company
and requests its notification to members of the company, the
company shall, if the time permits it to do so,--
(a) in any notice of the resolution given to members of the
company, state the fact of the representation having been made;
and
(b) send a copy of the representation to every member of the
company to whom notice of the meeting is sent (whether before
or after receipt of the representation by the company), and if a
copy of the representation is not sent as aforesaid due to
insufficient time or for the company's default, the director may
without prejudice to his right to be heard orally require that the
representation shall be read out at the meeting:
Provided that copy of the representation need not be sent
out and the representation need not be read out at the meeting
if, on the application either of the company or of any other
person who claims to be aggrieved, the Tribunal is satisfied that
the rights conferred by this sub-section are being abused to
secure needless publicity for defamatory matter; and the
Tribunal may order the company's costs on the application to
be paid in whole or in part by the director notwithstanding that
he is not a party to it.
(5) A vacancy created by the removal of a director under this
section may, if he had been appointed by the company in
general meeting or by the Board, be filled by the appointment of
another director in his place at the meeting at which he is
removed, provided special notice of the intended appointment
has been given under sub-section (2).
(6) A director so appointed shall hold office till the date up to
which his predecessor would have held office if he had not been
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removed.
(7) If the vacancy is not filled under sub-section (5), it may
be filled as a casual vacancy in accordance with the provisions
of this Act:
Provided that the director who was removed from office
shall not be re-appointed as a director by the Board of
Directors.
(8) Nothing in this section shall be taken--
(a) as depriving a person removed under this section of any
compensation or damages payable to him in respect of the
termination of his appointment as director as per the terms of
contract or terms of his appointment as director, or of any other
appointment terminating with that as director; or
(b) as derogating from any power to remove a director under
other provisions of this Act."
9. The other aspects which the Commission yet to take into
consideration is as to whether at the stage when the judgment was passed,
the petitioner was holding the post of Director or not. As these aspects are
yet to be examined, in the opinion of this Court there was no occasion to
assail the order rejecting the application for impleadment. This Court also
finds that the writ petition would not lie with regard to interregnum order
passed by the Commission in execution proceedings which are penal in
nature. For ready reference Section 72 of the Consumer Protection Act, reads
as under:-
"(1) Whoever fails to comply with any order made by the
District Commission or the State Commission or the National
Commission, as the case may be, 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 twenty-five thousand rupees, but which
may extend to one lakh rupees, or with both.
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(2) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), the District Commission,
the State Commission or the National Commission, as the case
may be, shall have the power of a Judicial Magistrate of first
class for the trial of offences under sub-section (1), and on
conferment of such powers, the District Commission or the
State Commission or the National Commission, as the case may
be, shall be deemed to be a Judicial Magistrate of first class for
the purposes of the Code of Criminal Procedure, 1973.
(3) Save as otherwise provided, the offences under sub-section
(1) shall be tried summarily by the District Commission or the
State Commission or the National Commission, as the case may
be."
10. Thus, from the above, it would be seen that the Commission
acts as a Judicial Magistrate for the purpose of Code of Criminal Procedure,
1973 proceedings, would therefore have to be examined accordingly. Once
an order is passed under Section 72 finally, the appeal would lie under
Section 73 to the National Consumer Commission, the judgment relied upon
by learned counsel for the petitioner (supra) is on completely different
aspects. The Supreme Court has held that a revision would not lie against an
order passed in appeal by the State Commission in execution proceedings
whereas the present proceedings are the original proceedings before the
Commission and appeal would lie as per Section 73 to the National
Consumer Commission. Facts of each case have to be therefore examined
independently. Before considering such aspects, the law cannot be as put as
a copy and paste. The contentions of learned counsel for the petitioner are
thereafter found to be misconceived.
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11. Both the writ petitions at this stage, do not warrant any
interference nor the writ petitions are maintainable against interim order(s)
passed in execution proceedings by the Commission. The same are
accordingly dismissed.
(SANJEEV PRAKASH SHARMA)
JUDGE
21.12.2023
Rajeev (rvs)
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
Neutral Citation No:=2023:PHHC:165233
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