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S. MOORTHY versus L. ALPHONES

High Court of Madras

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S. Moorthy v. L. Alphones - Civil Revision Petition (NPD) No.2550 of 1999 [2003] RD-TN 183 (7 March 2003)



In the High Court of Judicature at Madras

Dated: 07/03/2003

Coram

The Hon'ble Mr. Justice P. SATHASIVAM

Civil Revision Petition (NPD) No.2550 of 1999
and
C.M.P.No.14578 of 1999

S. Moorthy .. Petitioner

-Vs-

1. L. Alphones
2. A.L.R. Peter .. Respondents


Revision Petition filed under Article 227 of the Constitution
of India against the order dated 29.01.1997 made in E.P.No.37 of 1996 in
O.P.No.73 of 1993 on the file of the District Consumer Disputes Redressal
Forum, Tiruchi.

For petitioner : Mr. V. Vijayshankar

For respondents : Mr. B. Rajendran

:ORDER



The above civil revision petition is filed under Article 227 of the Constitution of India against the order passed in E.P.No.37 of 1996 in O.P.No.73 of 1993 on the file of District Consumer Disputes Redressal Forum, Tiruchi, in and by which the petitioner was ordered to suffer simple imprisonment for a period of six months.

2. The case of the petitioner is briefly stated hereunder: Till the petitioner was arrested on 02.08.1999 and produced before the District Forum, the petitioner was not aware of any of the proceedings. Only after applying copies of the complaint in O.P.No.73 of 1993 filed by the respondents, order passed by the District Forum on the said complaint on 15.10.1993 along with the order passed in E.P. No.37 of 1996 dated 29.01.1997, he came to know that an ex parte order was passed in the complaint of the respondents dated 15.10.1993. It is further stated that the respondents had entrusted the petitioner with the task of providing labour contract for constructing a house for them for a sum of Rs.86,000/- and a sum of Rs.70,000/- had been paid by them to the petitioner, the petitioner had completed the work only to the tune of Rs.39,000/- and in spite of the request by them, the petitioner did not carry out the remaining work, resulting in the complainants suffering damage to the tune of Rs.50,000/- due to the non performance of work by the petitioner. Hence, the respondents claimed a sum of Rs.81,000/- (Rs.31,000/- towards balance of work and Rs.50,000/- towards damages). Because of his nature of work and he being a labourer, who undertakes petty labour/ contracts, the petitioner was not aware of the proceedings before the District Forum, therefore could not effectively contest the same, the entire proceedings in O.P., and the Execution Petition including the order of arrest were passed ex parte. The Consumer Forum had acceded its jurisdiction in entertaining the complaint and passing an order without due opportunity to the petitioner, which is in gross violation of cardinal principles to be followed before effecting civil arrest and sentencing him to jail for six months. The proceedings of the District Forum thus wholly illegal and arbitrary. Since the State Consumer Forum, which is the appellate authority was not functioning due to non filling up of vacancies at the relevant time, having no other remedy filed the revision under Article 227 of the Constitution of India.

3. Heard, Mr. V. Vijayshanker, learned counsel for the petitioner and Mr. B. Rajendran, learned counsel for the respondents.

4. The only point for consideration in this revision is, whether the District Consumer Disputes Redressal Forum, Tiruchi is justified in passing an order sentencing the petitioner to suffer simple imprisonment for six months and ordering arrest?

5. It is seen that by order dated 15.10.1993, after setting the opposite party, namely, the petitioner herein as ex parte, the District Forum allowed the complaint of the petitioners therein and directed the respondent to pay a sum of Rs.31,000/- towards the balance of the amount and also to pay a sum of Rs.50,000/- as damages from 05.08.19 90 at the rate of 24 interest per annum and also costs of the petition to the petitioners therein. There is no dispute that the said order dated 15.10.1993, is an ex parte order. Based on the said order, the respondents herein filed E.P.No.37 of 1996 before the District Consumer Disputes Redressal Forum on the ground that the award has not been complied with by the petitioner herein. Even in the execution proceedings, the petitioner did not appear. On 29.01.1997, the District Redressal Forum has passed the following order. "Heard petitioner's counsel. The award of this Forum has not been complied with by the opposite party. Hence the Opposite Party (i.e.) S. Moorthy is sentenced to suffer simple imprisonment for six months. Issue arrest warrant. "

6. It is not clear, whether in the Execution Petition No.37 of 1996 the petitioner herein was served with notice or not. By stating that the earlier award of the Forum has not been complied with by the Opposite Party (petitioner herein), the Forum has sentenced him to suffer simple imprisonment for six months and also issued warrant of arrest. Mr. Vijayshanker, learned counsel appearing for the petitioner would contend that though an elaborate procedure as provided under Order XXI Rule 37 to 40 of the Code of Civil Procedure (in short "CPC") are not provided in the Consumer Protection Act, 1986 (in short "the Act") and Consumer Protection Rules, 1987 (in short "the Rules") made thereunder, in the absence of specific exclusion, the District Redressal Forum is expected to follow those provisions before ordering arrest. In this regard, it is relevant to refer Section 27 of the Act, which speaks about Penalties.

"Section 27. Penalties

Where a trader or a person against whom a complaint is made (or the complainant) fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person (or complainant) 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 two thousand rupees but which may extend to ten thousand rupees, or with both: PROVIDED that the District Forum, the State Commission or the National Commission, as the case may be, may, if it is satisfied that the circumstances of any case so require, impose a sentence of imprisonment or fine, or both, for a term lesser than minimum term and the amount lesser than the minimum amount, specified in this section. " It is true that as per the said provision, if the complainant fails to comply with the order made by the District Forum, he shall be punishable with imprisonment for a term which shall not be less than one month and which may extend to three years or with fine which shall not be less than Rs.2,000/- which may extend to Rs.10,000/- or with both. As per the proviso, it would be open to the District Forum or the other parties if it is satisfied to impose lesser punishment than the minimum prescribed.

7. Mr. Vijayshanker, learned counsel appearing for the petitioner has very much relied on the following decisions. "1. K.AL.RM.RM. Alagappan vs. Rajaguru & Co., (A.I.R. 1985 Madras 353 ); 2. The Manager, Indian Bank, High Court Extension Counter, Madras vs. The District Consumer Disputes Redressal Forum, Madras (1996 (2) M.L.J. 241); and 3.Malaravan and another vs. K. Reghupathy and another (1998 (1) M.L. J. 546). "

8. In the first case, namely, A.I.R. 1985 Madras 353 (cited supra), while considering Sections 51, 55 and Order XXI Rule 37 of CPC, Sathar Sayeed,J., has held that mere simple default by judgment debtor in payment of decreetal amount to the decree holder is not enough for the Executing Court to order arrest of the judgment debtor. The learned Judge further held that the decree holder must prove that the judgment debtor is having enough funds to pay and is purposely evading or delaying to pay the decreetal amount. It is clear from the said decision that an order of arrest of judgment debtor is not an automatic even in the event of default of the decree / order. But, there must be evidence to show that the judgment debtor is having enough funds to pay and is purposely evading or delaying to pay the decreetal amount.

9. In the second case, namely 1996 (2) M.L.J. 241 (cited supra), A.R. Lakshmanan,J., (as His Lordship then was) while considering the orders passed under the Consumer Protection Act and Rules made therein has held that every proceedings before a Consumer Forum shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 of Indian Penal Code and the Forum shall be deemed to be a civil Court for the purpose of Section 195 of Chapter XXVI of the Code of Civil Procedure, 1973.

10. The third decision, namely, 1998 (1) M.L.J. 546 (cited supra), while considering the provisions of Consumer Protection Act and the Rules, S.S. Subramani,J., has observed that,

"6. ..... The opinion expressed by the Consumer Forum that the procedure of civil court will not apply to consumer forum, though to a certain extent is correct, it cannot be said that the procedure will not apply under any circumstances. The Consumer Forum is also a Judicial Tribunal which has also the trappings of court. The principles of natural justice will apply to a quasi-judicial Tribunal. The petitioner's request is for a direction to the complainant to produce certain documents in his custody, which will prove their case. Giving an opportunity to the petitioners to substantiate their case is only an extension of the principles of natural justice. Even if the Civil Procedure Code will not apply, as I said earlier the principles of natural justice contemplate the taking of evidence and also the opportunity to give evidence. If the complainant is in possession of any record, the petitioners (opposite parties) are also entitled to get the assistance of the court or the tribunal to compel him to produce the same, and, in spite of a direction for production of documents if the party fails to produce the same, an adverse inference also can be taken. This principle is not confined to civil courts only. It applies to quasi-judicial tribunals also. "

11. Inasmuch as order of arrest is not an ordinary one and it takes away the personal liberty of a person, I hold that even in the absence of an elaborate procedure, except Section 27 of the Consumer Protection Act, the Forum has to follow certain well established principles including compliance of principles of natural justice, which contemplates the taking of evidence and the opportunity to give evidence. As observed in the decisions referred to above, even though all the provisions of CPC are not applicable, before ordering arrest, the Forum is expected to follow the principles of natural justice. To put it clear, prior to the imposition of penalty within the meaning of Section 27 of the Act, the person concerned must be given an opportunity of being heard in the matter of penalty that may be inflicted against him.

12. Though it is stated that the main order was passed on 15.10.19 93, the Execution Petition has been made only in January, 1997, even then duty is cast on the Forum to afford opportunity of being heard to the opposite party. Merely because the opposite party was set ex parte in the main O.P., the Execution Petition, particularly for sending the opposite party to jail cannot be proceeded with, without affording opportunity to the person affected. The impugned order of arrest and imprisonment for six months does not disclose whether the opposite party - petitioner herein was given such an opportunity as mentioned above. It is also brought to my notice that even though the petitioner offered to pay the amount in easy installments, in the execution proceedings, the District Forum ignoring the same, ordered arrest of the petitioner, without any material except the initial order of the Forum dated 15.10.1993. In a matter like this, particularly, the initial order was passed setting the opposite party ex parte and in the execution petition when the opposite party makes a request for payment of the amount in installments, the Forum is expected to consider the same before imposing penalty or imprisonment in jail. Though the imprisonment is provided under Section 27 of the Act for noncompliance of the Forum's order, considering the consequences of the same, before ordering arrest, the opposite party must be given adequate opportunity either for compliance or for payment of the amount in installments, if the order is relating to payment of money. While passing the order impugned in this revision, the District Redressal Forum has failed to follow none of those conditions. Accordingly, the same is liable to be set aside.

In the light of what is stated above, the order of the District Consumer Disputes Redressal Forum, Tiruchi dated 29.01.1997 passed in E.P.No.37 of 1996 in O.P.No.73 of 1993 is set aside. The Forum is directed to restore E.P.No.37 of 1996 on its file and pass fresh orders on the lines mentioned above after affording opportunity to the petitioner herein. The civil revision petition is allowed. No costs. Consequently, connected CMP., is closed.

Index:Yes

Internet:Yes

kh

To

The District Consumer Disputes

Redressal Forum, Tiruchi.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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