2012(4) ALL MR (JOURNAL) 35
CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA STATE, MUMBAI
P.N. KASHALKAR, DHANRAJ KHAMATKAR AND NARENDRA KAWDE, JJ.
Shri Shivaji Manohar Pawale Vs. Shri Ashik K. Upadhey
Revision Petition No. 71 of 2011
2nd May, 2012
Petitioner Counsel: Smt. A P PISE
Respondent Counsel: Mr. G.K.TRIPATHI
Consumer Protection Act (1986), S.27 - Invocation of jurisdiction - Jurisdiction under S.27 can be exercised not only in respect of final orders but also in respect of interim orders.
Section 27 proceeding can be initiated against opponent for its failure to comply with the order. Even interim order passed in a given case can also be subject matter under section 27 of the Consumer Protection Act, 1986. In the instant case certain directions were given by the District Forum to produce original agreement between the parties, since complainant was disputing his signature on the original agreement executed between the parties. He wanted that original document to be sent to the Hand writing expert and for that purpose he had moved an application and District Forum was pleased to allow that application and directed opponent to produce the said agreement which was not produced. Held, even if an interim order is not complied, an action against its non compliance can be taken u/s.27. [Para 6,7]
Cases Cited:
R.B. Upadhyay Vs. State Commission for Consumer Disputes, Mumbai and others, 2010(5) ALL MR 238 =Mh.L.J. 2010(4) 472 [Para 8]
JUDGMENT
Mr. P.N. KASHALKAR, Hon'ble Presiding Judicial Member :- This revision petition filed by the original complainant whose application under section 27 filed against the opponent, on the ground of default committed by opponent in not producing certain documents was dismissed at the admission stage.
2. Facts to the extent material may be stated as under:-
Consumer complaint was filed by Mr.Shivaji Manohar Pawale -revision petitioner against Country Club (India) Ltd. During the pendency of the complaint, complainant moved an application on 06/11/2009 and prayed before the District Consumer Disputes Redressal Forum, Sangli to direct opponent to produce the original agreement executed between complainant and Country Club (India) Ltd. so that the same could be sent to the Hand writing expert at Band Garden, Pune.
3. On this application, after hearing both the parties forum was pleased to allow application on 06/11/2009 and directed opponent to produce original agreement by next date i.e.28/01/2010. This order was not complied with at all and, therefore, complainant filed Execution Application no.233/2010 in the pending complaint and invoked the jurisdiction of the District Consumer Disputes Redressal Forum to take punitive action against the opponent for their failure to comply with the interim order passed by the District Consumer Disputes Redressal Forum by producing original agreement executed between the parties. This complaint was in fact filed for the first time impleading Mr.Ashish K.Upadhye, Assistant Manager, Recovery Department, Country Club (India) Ltd. but the original opponent in the District Consumer Disputes Redressal Forum was The Country Club (India) Ltd.
4. That apart, this application for taking action under section 27 for having committed default by the opponent was rejected before admission of the complaint presented under section 27 of the Consumer Protection Act, 1986, on the ground that the order contemplated under section 27 was final order and not the interim order. Against the order dated 30/11/2010 of rejection of the application presented under section 27 by the complainant, original complainant has filed this revision petition.
5. We heard submissions of Mr.P.D.Pise-Advocate for the petitioner and Mr.G.K.Tripathi-Advocate for the respondent.
6. We are finding that order of rejection of the application presented under section 27 of the Consumer Protection Act, 1986 by the complainant /revision petitioner was erroneously rejected before its admission. Jurisdiction under section 27 can be exercised by the District Consumer Disputes Redressal Forum, by the State Commission or National Commission not only in respect of final order passed in consumer complaint but also in respect of an interim order violated by anybody in the pending proceeding.
7. Section 27 proceeding can be initiated against opponent for its failure to comply with the order. Even interim order passed in a given case can also be subject matter under section 27 of the Consumer Protection Act, 1986. In this case certain directions were given by the District Consumer Disputes Redressal Forum to produce original agreement between the parties, since complainant was disputing his signature on the original agreement executed between the parties. He wanted that original document to be sent to the Hand writing expert, Pune and for that purpose he had moved an application and District Consumer Disputes Redressal Forum was pleased to allow that application and directed opponent to produce the said agreement which was not produced and, therefore, revisionist had rightly invoked jurisdiction of the District Consumer Disputes Redressal Forum by filing an application under section 27 for violation of interim order passed by the District Consumer Disputes Redressal Forum. So District Consumer Disputes Redressal Forum should have considered this application at least for admission but before admission it was pleased to reject application erroneously by order dated 30/11/2010. Aggrieved by that order, this revision petition has been filed by the original complainant.
8. We are finding that order of the District Consumer Disputes Redressal Forum is incorrect, erroneous and bad in law. There is direct judgement by Bombay High Court in the case of R.B.Upadhyay V/s. State Commission for Consumer Disputes, Mumbai and others reported in Maharashtra Law Journal 2010(4) 472 : [2010(5) ALL MR 238], in which it has been clearly held that Expression 'any order' in section 27 must include within its sweep not only final orders, but all orders including interim orders which are also capable of execution under section 25. When this is the law laid down by Bombay High Court, we have got no option but to hold that order passed by the District Consumer Disputes Redressal Forum is bad in law and, therefore, by allowing this revision petition, order of rejection of complainant's application under section 27 will have to be quashed and set aside and forum will have to be directed to re-decide application presented by the complainant under section 27 of the Consumer Protection Act, 1986 after hearing both the parties to the proceeding. Hence the following order:-
ORDER
9. This revision petition is allowed.
Impugned order passed by the District Consumer Disputes Redressal Forum on 30/11/2010 rejecting section 27 application presented by the complainant is hereby quashed and set aside.
Forum is directed to re-decide the said application for admission on merits after hearing both the parties to the proceeding.
Both the parties are directed to appear before the District Consumer Disputes Redressal Forum on 04/06/2012 on which date the District Consumer Disputes Redressal Forum is directed to re-decide the Darkhast proceeding no.233/2010 after hearing both the parties to the proceeding.
Inform the parties accordingly.