State Consumer Disputes Redressal Commission

West Bengal

BHABANI BHAVAN (GROUND FLOOR)

31, BELVEDERE ROAD, ALIPORE

KOLKATA – 700 027





S.C. CASE NO. RC/09/11



DATE OF FILING: 03/02/2009

DATE OF FINAL ORDER: 24.07.2009


PETITIONER


Anil Kumar Todi

S/o Niranjan Lal Todi

Residing at 2, Queen’s Park

P.S. – Ballygunge, Kolkata – 700 019



OPPOSITE PARTIES



1) Sri Monilal Banerjee

S/o Dalim Banerjee

Vill, P.O. & P.S. – Jaypur

Dist. – Purulia

2) M/s. K.B. Enterprises Authorised Dealer

“Khajana Power Tiller”, R.B.A. Sarkar Road

Near Kamala Takij Cinema, Purulia

P.O., P.S. & Dist. – Purulia

3) Supreme Leasing Limited Unit Khajana

Agricultural Equipments Ltd.

63, Rafi Ahmed Kidwai Road

Flat No.7 (1st floor), Kolkata – 700 016



BEFORE : HON’BLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT

MEMBER : MR. A.K. RAY



FOR THE PETITIONER : Mr. U.C. Jha, Advocate

FOR THE OPPOSITE PARTIES: Mr. F. Bandyopadhyay, Advocate(No.1)

Mr. N.R. Mukherjee, Advocate (No.2)



: O R D E R :


HON’BLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT





This Revision Application was filed challenging Order No.72 dated 19.11.2008 passed by District Consumer Disputes Redressal Forum, Purulia in Execution Case No.39/2003 whereby the Revisionist’s Application for expunging his name from the records, was rejected. The OP1 being the complainant filed complaint case against the OPs 2 & 3 and also against West Bengal Seeds Corporation. The proceeding was numbered as District Forum Case No.37/1997 at the Forum at Purulia. The complaint case was finally disposed of by order dated 30.01.2003 whereby the complaint was allowed and OPs 1 & 2 were directed to arrange to rectify and remove defects found in the power tiller being the subject matter of the dispute and to replace the power tiller or to refund to the entire consideration money to the complainant. The complainant filed Execution Case No.39 of 2003 against the OPs 2 & 3 as Judgment Debtor Nos.1 & 2. The OP2 filed Revision Case No.16/R/2006 before this Commission which was disposed of with a direction that the Forum to procure attendance of Judgment Debtor No.2 being the Respondent No.3 here and, thereafter, to proceed with the Execution Case in accordance with law. The Forum below passed order dated 30.6.06 directing the Decree Holder to take steps for issuing process against Judgment Debtor No.2. Thereafter the Forum issued warrant of arrest against the present Revisionist.

The present Revisionist filed application before the Forum below praying for recall of the warrant of arrest as well as the order directing issuance of warrant of arrest against him on various grounds. One of the grounds for challenging the issuance of warrant of arrest was that the present Revisionist filed Form No.32 and resigned from the office of Director of the OP3 Supreme Leasing Ltd. w.e.f. 28.3.2000 i.e. even before the date of the decree by the Forum.

The said application was disposed of by Order No.52 dated 28.3.2007 whereby the said application was dismissed and warrant of arrest was again issued. This consequence was mainly on the ground that the petitioner failed to produce the original certified copy of the Form No.32 at the time of hearing.

Challenging the said order dated 28.3.2007 passed by the Purulia Forum, the present Revisionist moved this Commission in revisional jurisdiction giving rise to case no.23/R/2007 which was decided by this Commission on 07.9.2007 dismissing the Revision Application on the ground that the petitioner failed to produce certified copy of Form No.32 despite opportunity given and, therefore, there was no wrong in the order impugned.

After the certified copy of the Form No.32 became available to the petitioner he filed another application before the Forum below praying for recall of the warrant of arrest against him and also for expunging his name from the records. The said application was heard in a contested proceeding and by order dated 19.11.2008 the Forum below rejected the application. Challenging the same the present Revision was filed.

Heard Mr. U.C. Jha, the Ld. Advocate for the Revisionist, Mr. F. Bandyopadhyay, the Ld. Advocate for the OP No.1 and Mr. N.R. Mukherjee, the Ld. Advocate for the OP No.2.

The contention of the Revisionist mainly is that the Execution Case was filed u/s.25 of the Consumer Protection Act when already the Consumer Protection Act has been amended modifying the execution procedure by Section 25 and Section 27 empowering the Forum in execution proceeding to issue arrest warrant. The provisions of Section 27 therefore are not available in the said Execution Case as the same was not filed u/s.27. It is stated that Section 25 of the Act after amendment empowers a Forum only to exercise limited power of issuing a certificate to the collector concerned and is available only in case of a final order passed by an order imposing financial liability on the OPs.

It is further argued by Mr. Jha, the Ld. Advocate that even if Section 27 applies, the proceeding therein is to proceed following the procedure prescribed for a summary trial a Criminal Court of a Judicial Magistrate of the First Class.

It is further contended by the Ld. Advocate for the Revisionist that earlier order dated 28.3.07 of the Forum below and the order of the State Commission in the earlier Revision No.23/R/07 were passed in the factual background when the certified copy of the Form No.32 was not available and as such not produced. Upon receiving the certified copy of the Form No.32, when the application was filed by the present Revisionist before the Forum below, it became apparent that the Revisionist was not a Director of the company since 28.3.2000 i.e. the date his resignation was effective and, therefore, neither can be proceeded against nor any warrant can be issued against him in respect of any decree/award against the company Supreme Leasing Ltd.

Moreover, it is contended that the earlier order of the Forum is a nullity. It is argued that a proceeding u/s.27 of the Consumer Protection Act has to be conducted as a summary trial following the procedure prescribed in Chapter XXI of the Code of Criminal Procedure which means the procedure prescribed for summons cases before a Criminal Court as contained in Sections 251 to 259 in Chapter XX of the Code of Criminal Procedure. It is argued that in such cases issuance of summons is a compulsory pre-requisite before issuance of warrant of arrest and provisions of Sections 62 and 63 to the Code of Criminal Procedure are relevant in this connection.

The Ld. Advocate for the Revisionist also relied on the judgments in the cases of A.R. Antulay-Vs-R.S. Nayak reported in AIR 1998 SC 1531, Shiv Kr. Chadha-Vs-Municipal Corporation of Delhi reported in 1993(3) SCC 161 and Grindlays Bank Ltd.-Vs-Central Govt. Industrial Tribunal reported in AIR 1981 SC 606.

Mr. F. Bandyopadhyay, the Ld. Advocate for the OP1 contended that the questions urged before this Commission by the Revisionist cannot be considered in this proceeding as those were not raised earlier. It is further pointed out that the present Revisionist filed a Vakalatnama in this very proceeding in the Forum on 18.07.03 describing himself as Director. It is argued that, therefore, the contention of the Revisionist that he was functioning as a Director of the said company even on 18.7.03 i.e. long after the purported resignation on 28.3.2000. Moreover, the findings in the order dated 07.9.07 in Revision being 23/R/2007 operates as resjudicata as self same points were argued in the said revision and were decided by this Commission. Same questions cannot be allowed to be reopened before the same Commission in another proceeding between the same parties. It is argued that findings of this Commission in earlier proceeding between the self same parties, cannot be reopened in the manner it has been sought for.

Mr. N.R. Mukherjee, the Ld. Advocate for the OP2 also argued in the same line and pointed out that findings were arrived at in the earlier revision because the present Revisionist did not produce the copy of the Form No.32 allegedly existing on that day also. It is further contended that the after award has been passed only to delay the proceeding the technical points are being argued in proceedings initiated one after another.

After considering the contentions of the respective parties and perusing the materials on record it appears that main contention of the Revisionist is that he retired from the company against which the award was passed and such retirement being on a date namely 28.3.2000 much before the date of the award, in respect of such an award the Revisionist cannot be proceeded against or arrested. The earlier proceedings on the self same contention admittedly were decided against the Revisionist on the ground that the certified copy of the Form No.32 was not available. But before considering the contention on resjudicata and the effect of producing the certified copy of the Form No.32, we find that the Vakalatnama dated 18.7.2003 was signed by the present Revisionist declaring himself as a Director of the said company. We have no material nor even allegation by the Revisionist that such subsequent Directorship also ever came to an end by resignation or otherwise and, therefore, by the contentions on law advanced on behalf of the Revisionist do not require consideration as those related to the earlier position on a contention of resignation from the office of Director at that stage. The holding of office of Director of company by the present Revisionist as declared by himself in the Vakalatnama showing a relationship between him and the company on 18.7.2003, does not require consideration afresh of the earlier resignation.

As the earlier contentions have been raised on allegation of availability of certified copy of Form 32 and the said resignation has become irrelevant now, other contentions which stood barred by principle of resjudicata in view of order on earlier application of the present revisionist, do not require also fresh consideration.

In view of the above findings no interference is felt required in the present Revision and the same is hereby dismissed.







(A.K. Ray) (Justice A. Chakrabarti)

MEMBER PRESIDENT