ORDER

(Passed on – 09^th   August, 2018)

As per Hon’ble President  Mr. Shekhar Muley.

1.                    The non applicant/ Opposite Party (OP) is charged u/s 27 of the Consumer Protection Act ( the Act, for short) for willful disobedience of the order passed by the forum against him.
2.                    The complainant had filed a consumer complaint against the OP bearing Complaint Case No. 151/2006. It was allowed on 17/1/2007 and the OP was directed to execute sale deed of flat No. 303 and deliver its possession to the complainant and the complainant was directed pay balance amount of the flat to the OP. Besides the OP was further directed to pay compensation of Rs. 5000/- and cost Rs. 1000/- to the complainant. The order was to be complied within 30 days from receipt of copy of the order. The complainant has alleged the OP failed to comply the order within given time and thereby he willfully disobeyed the order. Hence, he filed the instant application for taking action against the OP.

3.                     The O.P. appeared in response to the summons. Particulars of the offence punishable u/s 27 of the Act are explained to him. He has pleaded not guilty and claimed trial.

4.                    The complainant examined himself. Some documents are filed on record. Statement of the O.P. u/s 313 Cr. P.C. is recorded. His defence is that the complainant failed to pay balance amount within time, therefore he did not execute sale deed. Besides, the present application is said to be barred by limitation. The O.P. examined two witnesses, namely Ravi Shastri and Santosh Moon. 

5.                    Following points arise for our consideration and we have given our findings thereon for the reasons given below.

                        POINTS                                                          FINDINGS

1. Whether the execution of sale deed                                Yes

                    was subject to payment of balance

                    amount by the complainant?

2. Whether provisions of Sec. 468 (2) (c)                                    Yes

                    Cr. P.C. are  applicable to the application

                    u/s 27 of the Act ?

3.  If yes, whether present proceeding                               Yes

                    is barred by limitation ?

4. Whether non compliance of the order

                   by the OP is willful disobedience ?                                No

5. Whether the OP is liable to

                   be punished ?                                                                  No

6. What order ?                                                          As per final order.

7.               Points no. 1 & 4:-            Both these points, being interlinked, are discussed together. The OP has not denied that he has not executed sale deed in favour of the complainant. His counsel contended that the reason fro non execution of sale deed is due to failure of the complainant to pay balance amount of the flat. Clause 2 of the operative part of the order is as under:

         वि.प.ने, तक्रारकर्त्‍याला फ्लॅट क्र. 303 चा ताबा देऊन विक्रीपत्र करुन द्यावे व तक्रारकर्त्‍याने फ्लॅटची उर्वरित रक्‍कम वि.प.ला द्यावी.

            सदर आदेशाची अंमलबजावणी आदेशाची प्रत प्राप्त झाल्‍याच्‍या दिनांकापासून 30 दिवसाच्‍या आत करावी.

8.                      This particular direction is being interpreted differently by the complainant and OP. According to the OP unless the complainant pays balance amount he is not supposed  to execute sale deed. Whereas the complainant says payment of balance amount and execution of sale deed both were to be performed simultaneously at the same time. It is thus contended on behalf of the complainant that payment of amount is not a condition precedent to execute sale deed.

9.                    Generally, whenever a person executes sale deed of a property he first ensures that he receives entire consideration from the buyer before executing sale deed. Once sale deed is executed the vendor has very little chance to obtain balance amount, unless their relations are that much cordial. Once  sale deed is executed it is presumed that entire consideration is paid. Therefore, we are unable to accept that the OP was to execute sale deed before receiving balance amount. Even if it is assumed that both complainant and OP were to perform their part at the same time, the question is whether the complainant has shown his readiness to pay balance amount. In this respect there is no letter or communication from him to the OP for receiving balance amount and for executing sale deed for almost over one year.

10.                    Counsel for the complainant pointed out the notice dated 14/1/2008 sent to the OP after the order was passed by the forum. Almost one year after passing of the order this notice was issued for compliance of the order. Ex. 24 is the postal acknowledgement of the notice which bears signature of the receiver. However, the OP has strongly denied having received this notice, denying signature on the acknowledgement. Obviously the signature of the receiver appearing on the acknowledgement is not of the OP. The complainant has not proved who signed the acknowledgement. Since there is serious dispute on the signature and there is no evidence on this point it cannot be said with certainty that the notice was received by the OP.

11.                    At this stage we may turn to the oral evidence of the parties. From cross examination of the complainant it can be seen that he deposited balance amount on 9/7/2008 as per the order. While depositing the amount he did not apply for extension of time of 30 days granted by the forum. He had filed execution application u/s 25 of the Act, but it was later withdrawn on 8/5/2014 without reservation. From his admissions it appears that after all he was not interested to get the sale deed executed, otherwise he would not have withdrawn the execution u/s 25 of the Act. We, however, accept his submission that earlier as per practice, he had filed joint application u/s 25 and 27 of the Act.  But subsequently as per direction in one judgment by the Mah. State Commission, separate applications u/s 25 and 27 are required to be filed. Therefore, he withdrew the application filed u/s 25. But if he was desirous of getting sale deed he should have taken liberty to file separate application U/S 25 subsequently, which he did not do. Now, he is precluded from seeking that remedy.

12.                    The OP through his witnesses, Santosh Mon and S. Ravi Shastri tried to show that they also purchased flats in the same project and on 28/9/2005 they and Manish Thorat were called for execution of sale deed, but Manish Thorat did not turn up. Manish Thorat is name of the complainant. In cross examination they admitted they did not know who was Manish Thorat but the witness, Shastri remembered his name because they waited for him for almost three hours. His evidence inspires confidence. It is not that he filed false affidavit to support the OP nor was it suggested to him.

13.                    The counsel for the OPs submitted that the complainant after having paid initial amount of Rs. 25,000/- in May 2004, did not communicate with the OPs till end of September 2005 nor did pay balance amount. He further submitted that the complainant, in effect, is praying for specific performance of contract and applicability of the Specific Relief Act is not excluded since the the Act is in addition to and not in derogation of any other law for the time being in force. It is stated the complainant never shown his readiness to pay balance amount within time given by the forum. No specific reason is given for such undue delay in seeking execution. The complainant is trying to get the flat for the price prevailing about ten years ago. Since then there has been considerable rise in price. We find substance this argument of the counsel for the OPs. Though the Specific Relief Act is not strictly applicable to the disputes under the Act, it cannot be overlooked that the complainant is also at fault in not complying the direction of the forum within given time. He slept over his right for considerable period and then deposited the balance amount without seeking extension of time. Merely because he was allowed to deposit the amount, it cannot be regarded as an automatic extension of time. Under such circumstances, it can hardly be accepted that he was and is ready to get the sale deed executed. Regarding time to deposit amount granted by the forum, it is contended by the counsel for the OP that it was mandatory, therefore, subsequent deposit of the balance amount in the forum is of no consequence. It is thus contended, the complainant has lost his right under the order as soon as time granted expired by not complying with the order. Reliance is placed on P. R. Yelumali v/s N.M. Ravi MANU/ SC/ 0352/ 2015. Although the judgment was given in different context in a civil suit, law laid down is applicable to the consumer complaint u/s 12 of the Act which is akin to the suit for specific performance of contract. The complainant has not been able to show he was ready to get the sale deed executed. He did not pay balance amount within time nor did communicate with the OP in this regard for over one year. Without paying balance amount the OP was not expected to execute sale deed. As such there was no willful disobedience of the order by the OP.

14.                    We are, thus, of the considered view that the payment of balance amount was condition precedent to execute sale deed. The OP cannot be held guilty of willful disobedience of the order. The points are held accordingly.

15.                    Points No. 2 & 3:-         Both these points being interconnected, are being discussed together. The counsel for the OP contended the proceedings u/s 27 of the Act is essentially criminal in nature as penalty is provided therein for non compliance of the order passed by the forum. He contends, therefore forum has the powers of Judicial Magistrate of the first class for trial of offences under this section. It is therefore contended since the person guilty of non compliance of the order is tried for the offence u/s 27 of the Act, provision of limitation given in Chapter XXXVI of Cr. P.C. are applicable. The offence u/s 27 of the Act is punishable with three years of imprisonment. Therefore as per Section 468 (2) (c) Cr.P.C. period of limitation is three years and the period started on the date of the offence. The counsel then invited our attention to the particulars (Ex.13) wherein date of offence is mentioned as 21/1/2008. The present application was filed on 8/10/2013 i.e. beyond three years and therefore it is submitted, the application is hopelessly barred by limitation.

16.                    In reply, the counsel for the complainant opposing the contentions on limitation, contended, the proceedings u/s 27 of the Act is for non compliance of the order of the forum and therefore it is basically execution proceeding for which no limitation period is prescribed under the Act. The counsel further submitted that even if it is assumed that it is an offence for which limitation as provided u/s 468 Cr. P.C is applicable, then the said offence is a continuing one until the OP execute sale deed. As such, the offence cannot be said to be barred by limitation and a fresh period of limitation begins to run during which the offence continues as provided u/s 472 Cr. P.C. It is also contended that since there were litigations, like appeals and Writ petitions, in this matter, the time during which those litigations were fought, has to be excluded.

17.                    Pertaining to this issue, it also important to point out that the OP had filed one application, Ex.11, raising two preliminary objections, viz. bar of limitation and order becoming in-executable, to the maintainability of the present proceedings. That application was rejected by the forum by order dated 19/8/2014. The OP challenged that order by Cri. Writ Petition No. 742/2015 and that petition was allowed on 16/8/2016 and the present execution application was dismissed on the ground that the order passed by the forum became in-executable. Feeling aggrieved by the order, the complainant preferred Criminal Appeal through SLP before Hon´ble Supreme Court.  It was allowed by holding that the High Court was not right and justified in entertaining a challenge to the orders passed by the consumer forum in exercise of its writ jurisdiction. The forum was directed to consider preliminary objections along with the application u/s 27 of the Act without being influenced by the order of the High Court. Thus the point in issue is wide open.

18.                    Upon these rival contentions the foremost point falls for our consideration is what is nature of the proceedings u/s 27 of the Act, whether it is  separate offence or execution of the order of the forum. Section 27 of the Act is captioned as penalties. Plain reading of section 27 of the Act indicates that it is not an execution proceeding of the order of the forum, but an offence for non compliance of the order. Under this Section, mere failure or omission to comply with the order of the forum or Commission, as the case may be, amounts to an offence. Therefore, the Section 27 creates an offence for non compliance of the order of the forum, and as such, an offence, if committed, is required to be punished in an appropriate way in the manner indicated therein. Sub section 2 of section 27 of the Act says that the forum or Commission, as the case may be, shall have power of a Judicial Magistrate of the first class for the trial of offences under this Act. Under the Act, except Sec. 27  no other offence is defined. So it can be said that except Sec. 27, there is no other offence provided under the Act. Thus the powers of a Judicial Magistrate are vested for conducting trial of offence punishable under this section only. Therefore, the application u/s 27 of the Act, may not be in the strict sense be called as one taken in execution proceedings. If that being so, the proceedings u/s 27 must be presumed to be an offence and not an execution of the order of the forum. It may be stated that by punishing the person guilty of non compliance of the order, the order of the forum is not executed. Section 27 is a remedy in criminal Law.

19.                    As a corollary to the first point is, whether the provisions of Sec. 468 Cr.P.C are applicable to the application u/s 27 of the Act. Counsel for the complainant denying this proposition has taken aid of the judgment in the case of Prem Chandra Varshney v/s Murarilal Sharma, 2008 (1) CPR 199 (NC). Two important points were answered in that judgment that (a) Consumer Protection Act provides no limitation period for filing execution application and Regulation 14(1) (iv) would not apply to execution proceedings, and (b) Execution application can be simultaneously filed u/s 25 and 27 of the Act. We are concerned with the first point only as to bar of limitation. In that case execution application was filed and one of the objections taken by the OP was that the execution application was barred by limitation by virtue of Regulation 14 (1) framed under the Act. It was held that Regulation 14 (1) (iv) would not apply to execution proceedings and no limitation is provided for filing execution application. Same law is laid down in Shri Dhananjay Nagesh Naik v/s Shri Sudam Gopal Pednekar, 2012 (2) CPR 264 (NC). But it is not clear from these judgments whether the execution application was filed u/s 25 or 27 of the Act. Nevertheless, from what has been discussed in the judgments, it gives fair idea that the rulings were given pertaining to applications to execute the decree or order and not for punishing the OP for non compliance of the order.

20.                    On the other hand, the counsel for the OP has referred to one judgment passed by the Mah. State Commission in F.A No. A/07/881, Surendra Ramanarayan Shivhare v/s Bombay Stock Exchange Ltd. on 29/11/2012. Upholding the order passed by the forum, it was held that provisions of Sec. 468 of Cr. P.C. are applicable to the application u/s 27 of the Act.

21.                    Interestingly, one judgment, Satyasheel Avinash Akole  and othrs v/s Sanjay Prabhakar Shimpi II (2018) CPJ 85 (Maha), cited by the counsel for the complainant to negate the OPś contention about limitation, on the contrary, supports the case of the OP.  It is held therein that proceedings u/s 27 of the Act is criminal prosecution and for this offence punishment provided is three years as per Cr. P.C. However in that cases applications were filed within three years and therefore the same were held to be within limitation.

22.                    After consideration of the facts and law laid down in above referred judgments, we are of the opinion that the proceedings u/s 27 of the Act are essentially criminal offences and are to be dealt with in accordance with the provisions of Cr. P.C. It, therefore, follows that the offence being punishable with three years imprisonment limitation to take cognizance of such offence is three years as prescribed u/s 468 (2) (c) Cr. P.C.

23.                     Now, the question is when the offence took place for the purpose of applying the bar of limitation or is there continuing cause of action. As per the particulars the offence explained on 6/9/2014, offence took place on 21/1/2008 and is recurring since then. This date is reckoned from the date of receipt of notice sent by the complainant to the OP for compliance of the order. We have already held that there is no reasonable and acceptable evidence that the notice was received by the OP.  Presently, it is to be seen whether there is recurring cause of action. Counsel for the complainant argued that since the OP has not executed sale deed as per the order of the forum, the cause to initiate criminal action is recurring one. This contention does not hold water in view of our discussion on the first point. Once the decree has become in-executable because of failure to pay balance amount within stipulated time, there remains no question to recurring cause against the OP. The counsel for the complainant tried to get advantage of Section 470 of Cr.P.C. We do not think he could invoke this section. First of all, he was not prosecuting any matter in appeal or revision against the order of the forum. It was all the while the OP, who challenged the prosecution and order. There was no stay or injunction operating against execution of the order or filing application u/s 27 of the Act. Hence, no time can be excluded in computing the period of limitation. Even if it is accepted that the notice was received by the OP, yet the complaint is time barred as it was filed much beyond the period of two years.

24.                  As a result of aforesaid reasoning, both these points are held in the affirmative.

25.                   Point No. 5 :- Since the application u/s 27 is held to be barred by limitation and the order is also held to be in-executable, no liability could be fastened upon the OP. There is no question of willful disobedience of the order by the OP. He has already complied the monetary part of the order by depositing the amount with the forum. Question of execution of sale deed is now out of question as discussed before. It is tried to contend that the OP has created third party interest and thereby committed breach of the order. We do not agree with this contention, because there is no injunction against creating third party interest and moreover, after waiting for considerable time for the complainant to pay balance amount, the OP sold the flat to third person. A considerable amount of the flat was blocked by the complainant. There was ample opportunity for the complainant to pay balance amount to get the sale deed executed. Therefore, under such circumstances,  the OP is not liable for any kind of punishment u/s 27 of the Act. Hence, the point is held in the negative.

26.            Point No. 6 :-       The complainant has failed to establish his case. As a result, the OP deserves to be acquitted. We therefore, pass the following order.

          ORDER

1. The application u/s 27 of the Act is dismissed.
2. The OP is acquitted of the offence punishable u/s 27 of the Act.
3. His bail bonds stand cancelled.

4.