Con­sumer Fo­rum Can­not Re­view, Set Aside, Stay, or Change Its Own Or­der

The­court•oflawacro••the­world­make•omea­maz­ingdeci•ion•tha­tought­tobe­made­bythe peo­ple. ~ Anony­mou•

Consumer Voice - - Contents - Dr Prem Lata, Con•umer Awak­en­ing For­mer Mem­ber, CDRF-Delhi

It hap­pen• quite of­ten. Many in­di­vid­ual• and or­gani•ation• reach con•umer fo­rum• with a reque•t or an ap­peal to re­view, take back, revi•e or put a •tay on it• or­der. Such ap­peal• are gen­er­ally backed with many rea•on•, excu•e• and ju•tifi­ca­tion•, and •ome­time• even con­tra­dic­tory deci•ion• or judge­ment• of higher court•. In or­der to un­der•tand how con•umer court• re•pond, we vi•ited a few ca•e• de­cided in the re­cent pa•t and found out that a con•umer fo­rum could nei­ther re­view nor change it• own or­der, nor could it hold back it• ex­e­cu­tion in any •it­u­a­tion. For ex­am­ple, if a fo­rum court make• a for­mal ver­dict a•king a de­fen­dant to pay X amount in com­pen•ation, the fo­rum can­not take back or re­view it• or­der. The fo­rum al•o doe• not re•erve any power to put on hold or i••ue a •tay or­der on the ex­e­cu­tion of it• or­der. Not ju•t thi•, the de­fen­dant too can­not go to the •ame fo­rum with a re­view reque•t. Hence, if a ver­dict ha• been made, the de­fend­ing party will have to pay the X amount or ap­peal again•t it at a fo­rum of a higher level.

The mat­ter of Kam­lesh Aggarwal ver­sus Narain Singh Dab­bas and Oth­ers is an ex­em­plary case that started at the district fo­rum and trav­elled up to the na­tional fo­rum, be­fore fi­nally get­ting set­tled at the Supreme Court.

Kam­lesh Aggarwal filed a case be­fore the Ghazi­abad District Con­sumer Dis­putes Re­dres­sal Fo­rum against Navchetna Sahkari Awas Samiti Ltd (re­ferred to as Samiti) for not al­lot­ting and reg­is­ter­ing a plot in her name as com­mit­ted. The com­plainant stated that the Samiti, through a ran­dom res­o­lu­tion, had can­celled her Samiti mem­ber­ship due to de­fault in pay­ment by her. This can­cel­la­tion also re­sulted in non-al­lot­ment of the plot.

The District Fo­rum, af­ter con­duct­ing an en­quiry, ac­cepted the com­plaint and di­rected Navchetna Sahkari Awas Samiti to al­lot the said plot in her favour and also to reg­is­ter the same in her name within three months from the date of the or­der. Since there was no ap­peal filed against the or­der, Kam­lesh Aggarwal filed an ex­e­cu­tion pe­ti­tion be­fore the District Fo­rum to ex­e­cute the or­der and re­quested it to pun­ish the re­spon­dents un­der sec­tions 25 and 27 of the Act.

How­ever, a strange twist in the case ap­peared just be­fore the or­der could be ex­e­cuted. A per­son named Gu­lab Singh filed an ap­pli­ca­tion for im­plead­ment be­fore the District Fo­rum, stat­ing that he was al­ready in posses­sion of the plot in ques­tion. The plot was al­lot­ted to him by Navchetna Sahkari Awas Samiti, who were de­fen­dants in the case.

Singh stated that a civil suit filed by him on the same mat­ter was pend­ing in the civil court. Look­ing into this ap­peal, the District Fo­rum vide its or­der in 2006 held that its ear­lier or­der be­came null and void and stated that the com­plainant should ap­proach the civil court. Only if Gu­lab Singh’s suit was re­jected by the civil court the ex­e­cu­tion pro­ceed­ings could be heard by the District Fo­rum.

Ag­grieved, Kam­lesh Aggarwal ap­proached the State Con­sumer Dis­putes Re­dres­sal Com­mis­sion, Luc­know. The State Com­mis­sion, in 2007, held that there was no op­tion open to the District Fo­rum to re­view the ‘same mat­ter’ on any merit and di­rected the lat­ter to pro­ceed afresh with the ex­e­cu­tion pro­ceed­ings on its ear­lier or­der.

The de­fen­dants reached the Na­tional Com­mis­sion, which stood by the State Com­mis­sion’s or­der. The mat­ter then reached the Supreme Court. There, a well-thought-out ver­dict was given that clearly stated the fol­low­ing:

1. Con­sumer fo­rum has no power to re­view its own or­der or set aside an or­der passed by it. Or­der so passed can­not be de­clared null and void by the same district fo­rum.

2. The or­der passed by the district fo­rum in favour of the com­plainant was not chal­lenged by the op­po­site party and hence had fi­nal­ity un­der Sec­tion 24 of the Act. Thus, the or­der can­not be made nonex­e­cutable on tech­ni­cal grounds.

3. The ex­e­cu­tion of the de­cree in the afore­said terms is per­mis­si­ble in law in view of the pro­vi­sions of Sec­tion 13 (4), (6) and (7) of the Act, as the pro­vi­sions of Or­der XXI read with Rule 32 of Code of Civil Pro­ce­dure are ap­pli­ca­ble to the district fo­rum, re­quir­ing it to fol­low the pro­ce­dure for ex­e­cu­tion of the or­der passed by it.

4. In ad­di­tion to the above, an al­ter­na­tive rem­edy is also avail­able to the ap­pel­lant to take pe­nal ac­tion against the con­cerned of­fi­cers of Navchetna Sahkari Awas Samiti, un­der Sec­tion 27 of the Act. In the present case, it was clear that some mis­chief had been played by the of­fi­cers con­cerned.

Fi­nally, af­ter a strug­gle of about eight years, the Supreme Court’s or­der re­lieved Kam­lesh Aggarwal of her mis­eries. She filed the ap­pli­ca­tion be­fore District Fo­rum for ex­e­cu­tion of its or­der of 2003. In May 2010, the District Fo­rum al­lowed the ex­e­cu­tion pe­ti­tion di­rect­ing for com­pli­ance with its 2003 or­der. It fur­ther di­rected the Samiti to pro­vide an al­ter­nate plot to the ap­pel­lant, as re­place­ment for the plot in ques­tion. In case of non-avail­abil­ity of plot, the Samiti would have to pay the amount as com­pen­sa­tion to orig­i­nal com­plainant Kam­lesh Aggarwal, at the cur­rent rate equiv­a­lent to the area of the plot in ques­tion.

The fo­rum also observed that apart from ini­ti­at­ing pro­ceed­ings un­der Sec­tion 27 of the Act, the com­plainant could also in­voke the pro­vi­sions of Code of Civil Pro­ce­dure, 1908, un­der Or­der XXI read with Rule 32, for seek­ing di­rec­tion to the re­spon­dents to get sale deed in re­spect of the plot in ques­tion.

Cir­cum­stances un­der which Con­sumer Court Or­der Can Be Stayed

Sec­tion 24 of Con­sumer Pro­tec­tion Act talks about the fi­nal­ity of the or­der – once the or­der is fi­nal, the con­sumer has a right to get it ex­e­cuted. The ques­tion has been raised time and again as to un­der what cir­cum­stances the ex­e­cu­tion of con­sumer court or­der can be stayed.

The Na­tional Com­mis­sion had dis­cussed this is­sue in the mat­ter of Shree­nath Cor­po­ra­tion & Oth­ers ver­sus Nilka­mal V Pa­tel & Oth­ers, re­fer­ring to sec­tions 24, 25 and 27 of the Act.

Sec­tion 24 con­firms that ‘every or­der of a district fo­rum, the state com­mis­sion or na­tional com­mis­sion shall, if no ap­peal has been pre­ferred against such or­der un­der the pro­vi­sion of this Act, be fi­nal.’ This sec­tion does not men­tion any stay or ad­mis­sion of the ap­peal. Here, the word ‘pre­ferred’ re­quires thor­ough

in­ter­pre­ta­tion and dis­cus­sion.

In the case of Shree­nath Cor­po­ra­tion, the Na­tional Com­mis­sion re­lied upon a num­ber of judge­ments pro­nounced by the apex court and ex­plained in its judge­ment in Au­gust 2015 that ‘if a per­son against whom an or­der is passed by the district fo­rum, state com­mis­sion or the Na­tional Com­mis­sion as the case may be, fails or omits to com­ply with the or­der, he can be pro­ceeded against un­der Sec­tion 27 of the Act even if he has filed an ap­peal against the or­der. Only if the said or­der has been stayed by the su­pe­rior fo­rum, the fo­rum can hold ex­e­cu­tion.’

The ba­sis of the above clar­i­fi­ca­tion by the Na­tional Com­mis­sion was pri­mar­ily the 2005 case of At­maram Prop­er­ties ver­sus Fed­eral Mo­tors, where Supreme Court had held thus:

‘There was no bar against ini­ti­a­tion of pro­ceed­ings un­der Sec­tion 27 of the Act merely on ac­count of an ap­peal hav­ing been pre­ferred by the ag­grieved party. A prayer for grant of stay of pro­ceed­ings or on ex­e­cu­tion of or­der has to be made specif­i­cally to the ap­pel­late court and court has dis­cre­tion to grant an or­der of stay or refuse. Merely pre­fer­ring an ap­peal does not op­er­ate as stay on the de­cree nor on the pro­ceed­ings of the court. Fur­ther, all courts must take note that even if an ex­e­cu­tion of an or­der is “stayed”, its ex­is­tence is not wiped.’

Notes for Con­sumers When can a con­sumer file ex­e­cu­tion pe­ti­tion?

Con­sumer fo­rum sends cer­ti­fied copy of the or­der af­ter the or­der is is­sued. Com­plainant has to wait for 30 days from the date he re­ceives a cer­ti­fied copy of the or­der. Con­sumer may write to/con­tact the other party for com­pli­ance with the or­der even be­fore 30 days. Con­sumer can file an ex­e­cu­tion pe­ti­tion only if or­der is not com­plied with af­ter 30 days’ ex­piry.

What does the court do af­ter re­ceiv­ing ex­e­cu­tion pe­ti­tion?

Court is to send no­tice to the op­po­site party for ap­pear­ance be­fore the court. If no­tice is not served, it is sent again. The court also al­lows the com­plainant to serve the same per­son­ally (the process is called dasti in court jar­gon). No war­rants can be is­sued un­til the no­tice is served to the com­plainant. No­tice can be served through publication (in news­pa­pers) if it can­not be served by post or dasti.

How are the war­rants is­sued?

Once a no­tice is served but op­po­site party fails to appear, a bail­able war­rant can be is­sued for non-ap­pear­ance. The war­rant is then sent to po­lice for ex­e­cut­ing ar­rest if bail has not been ob­tained. Non-bail­able war­rant can be is­sued when op­po­site party does not appear af­ter re­ceiv­ing bail­able war­rant. Non-bail­able war­rant, too, is served through po­lice.

When is a per­son de­clared to be a pro­claimed of­fender?

• When po­lice fails to ar­rest the cul­prit (as s/ he may be evad­ing ar­rest) af­ter non-bail­able war­rant has been is­sued, the per­son is de­clared to be a pro­claimed of­fender and can be ar­rested at any place in the coun­try by the po­lice. There is also a pro­vi­sion of at­tach­ing and sell­ing the prop­erty of pro­claimed of­fend­ers for re­cov­ery of the dec­re­tal amount.

What is the cer­tifi­cate for re­cov­ery?

Com­plainant also has the op­tion to get a cer­tifi­cate from the fo­rum for rev­enue de­part­ment, for get­ting the re­cov­ery done from the judge­ment debtor in a man­ner that the govern­ment’s rev­enue is re­cov­ered.

Are there lim­i­ta­tions for fil­ing ex­e­cu­tion pe­ti­tion?

There is no time limit pro­vided specif­i­cally in the Act but the Na­tional Com­mis­sion has made cer­tain or­ders hold­ing that court will have the dis­cre­tion to de­cide whether ex­e­cu­tion pe­ti­tion can be en­ter­tained if filed too late.

Can the court refuse to ad­mit ex­e­cu­tion pe­ti­tion?

There is a time limit for de­stroy­ing the old record and this varies from court to court as per their hi­er­ar­chy. If the pe­ti­tion is filed af­ter the lapse of the set pe­riod, the court may refuse to ac­cept the same. In some cases, fil­ing ex­e­cu­tion pe­ti­tion af­ter years serves no pur­pose de­pend­ing upon the na­ture of or­der and cir­cum­stances of the case at the time the or­der was passed.

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