JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)

          Several complaints were filed before the State Commission, Gujarat, against the appellants before us.  In the aforesaid complaints, order was passed by the State Commission, Gujarat on 30.01.2012 for payment of various amounts by the appellants to the complainants.  Being aggrieved from the aforesaid order of the State Commission dated 30.01.2012, the appellants preferred separate appeals before this Commission.  In the said appeals, being First Appeal Nos. 91 to 104 of 2012, the appellants also filed applications seeking stay of the order passed by the State Commission on 30.01.2012.  Vide order dated 15.05.2012, this Commission, stayed the operation of the order impugned in the aforesaid appeals till next date, subject to the appellants depositing 50% of the awarded amount (principal amount) within three months from the date of the order, with the State Commission.  It was also directed that on being deposited, the said amount shall be kept with the State Commission in a Fixed Deposit, with a nationalized bank.  Still aggrieved, the appellant approached the Hon’ble Supreme Court, by way of Special Leave Petitions.  The Hon’ble Supreme Court, vide interim order dated 27.08.2012, directed that the appeals pending before this Commission shall not be dismissed on account of non-payment of the amount which this Commission had directed to be deposited.  According to the learned counsel for the appellants, eventually the Special Leave Petitions, after being converted into Civil Appeals were dismissed by the Hon’ble Supreme Court on 07.07.2014.

          The learned counsel for the appellants also states that in the aforesaid disposed of appeals, applications have been filed by the appellants, praying to the Hon’ble Supreme Court that either the direction for depositing of cash, passed by this Commission may be converted into direction for furnishing the FDR of the amount in question or in the alternative, the time for making deposit, in terms of the order of this Commission may be suitably extended.  The learned counsel for the appellants submits that aforesaid applications are yet to be heard.

2.      Since, the appellants had not complied with the order, passed by the State Commission, the complainants filed applications, seeking initiation of proceedings under Section 27 of the Consumer Protection Act, against the appellants.  Notice of the said applications was given to the appellants, which opposed the said proceedings, inter-alia, on the ground that they had preferred appeals against the order of the State Commission and had also filed applications in those appeals, seeking stay of the proceedings in the applications under Section 27 of the Act.  It was also submitted by the learned counsel for the appellants that since they had preferred appeals before this Commission, against the order of the State Commission, the said order had not become final in view of the Section 24 of the Consumer Protection Act and consequently, the proceedings under Section 27 of the Act were not maintainable.

3.      The State Commission, vide impugned order dated 09.05.2014, rejected the prayer made by the appellants and held that the proceedings under Section 27 of the Act were maintainable.  Being aggrieved from the aforesaid order of the State Commission dated 09.05.2014, the appellants are before this Commission.

4.      It is an admitted position that the appellants have not complied with the order of the State Commission dated 30.01.2012.  It is also an admitted position that the appellants have not complied with the interim order, passed by this Commission on 15.05.2012 in the appeals filed, against the order of the State Commission dated 31.01.2012.  It is also an admitted position that the appeals filed by the appellants against the interim order of this Commission dated 15.05.2012 had been dismissed by the Hon’ble Supreme Court.  Since, the interim stay granted by this Commission on 15.05.2012 was a conditional order, subject to the appellant depositing 50% of the principal amount awarded by the State Commission, within three months from the date of the said order, and appellants did not comply with the said condition, there is no stay of the order of the State Commission either from this Commission or from the Hon’ble Supreme Court.  In these circumstances, the complainants are entitled to initiate action against the appellants, inter-alia, under Section 27 of the Act.

5.      The contention of the learned counsel for the appellants is that till the time the appeals are pending before this Commission, the order passed by the State Commission does not become final in terms of Section 24 of the Act, and consequently the proceedings under Section 27 of the Act cannot be initiated.  In support of his contentions, the learned counsel relies upon the decision of the Andhra Pradesh High Court in Maytas Properties Ltd. vs. A.P. State Consumer Disputes Redressal Commission, AIR 2013, Andhra Pradesh 93.

6.      A bare perusal of Section 27 of the Act would inter-alia show that wherever a person against whom a complaint is made, fails or omits to comply with “any order” of the District Forum, the State Commission or the National Commission, as the case may be, he 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.  The use of the expression “any order” in sub-section (1) of Section 27 of the Act, leaves absolutely no doubt or ambiguity with respect to the legislative intent.  Had the intention of the legislature been to initiate penalty proceedings under Section 27 of the Act, only in the event of a person, failing or omitting to comply with a final order, the legislature would have expressly stated so in the body of the sub-section, particularly when the expression final was used in Section 24 of the Act.  Moreover, the word “order” in sub-section (1) of Section 27 of the Act has been expressly amplified by use of the preceding word “any”, which would mean that the proceedings under Section 27 of the Act can be initiated, in case there is a failure or omission in compliance with an order,  of District Consumer Forum, State Commission or National Commission, as the case may be  irrespective of whether it is an interim order, intermediate order or a final order.

7.      If we accept the contention of the appellants that only a failure or omission in compliance of a trial order can lead to initiation of penalty proceedings under Section 27 of the Act, that may result in a situation where an order passed by the District Forum or the State Commission or the National Commission may remain unexecuted for an indefinite period, despite there being no stay against execution/implementation of the said order.  For instance, if an order is passed by the District Forum and the person against whom the order is made challenges the same, by way of an appeal, but the State Commission in the facts and circumstances of the case, declines to stay the execution/implementation of the order of the District Forum, or the appellant does not comply with the condition, subject to which the order impugned in the appeal is stayed, the complainant will not be able to execute the order through the process of imposition of penalty under Section 27 of the Act, despite the fact that the appellate forum did not find any justification for staying the execution/implementation of the said order, or the appellant himself invites its execution by not fulfilling the condition imposed by the Appellate Forum, while staying the said order.

8.      The learned counsel for the appellant next contends that unless the person in whose favour the order is made by the District Forum, the State Commission or the National Commission as the case may be, take steps for its execution in terms of Section 25 of the Act, the proceedings under Section 27 of the Act for imposition of penalty on account of non-compliance of the said order would not be maintainable.  Again, we find no merits in the submission.  There is no such restriction in sub-section (1) of the Section 27 of the Act.  In our view, the Act provides two simultaneous remedies to the person in whose favour the order is made by a Consumer Forum and the remedies are independent to each other.  It is for the person in whose favour an order is made by the Consumer Forum to decide whether he wants to proceed under Section 25 of the Act or Section 27 of the Act or under both the aforesaid provisions of the Act.  The legal right conferred upon the person in whose favour the order is made cannot be restricted by giving the interpretation suggested by the learned counsel for the appellants.

9.      We find that while rejecting the plea taken by the appellants, the State Commission relied upon the decision of the Allahabad High Court in Allahabd Development Authority vs. District Consumer Protection Forum, AIR 2006 71.  In the aforesaid case, a dispute was raised by the opposite party that since they had filed an appeal against the order passed against them, the said order had not become final and therefore, no proceedings under Section 27 of the Act could be initiated against them.  The Hon’ble High Court, referring to the decision of the Hon’ble Supreme Court in Atmaram Properties vs. Federal Motors 2005 (1) SCC 507 and an analysis of the provision of the Act came to the conclusion that there was no bar against initiation of the proceedings under Section 27 of the Act merely on account of an appeal having been preferred by the aggrieved party.  The order of the Allahabad High Court, to the extent the State Commission found it relevant reads as under:-

  “4.     Having given our anxious consideration to the various pleas raised by the Ld. Counsel for the petitioners, we are of the considered opinion that even though under Section 24 of the Act, it has been provided that an order passed by the District Forum would be final, if no appeal has been preferred against such an order under the provisions of the Act, it does not imply that if an appeal has been preferred against the order passed by the District Forum, the order of the District Forum cannot be executed or action cannot be taken be executed or action cannot be taken for its violation or non compliance.  For ready reference, Section 24 of the Act is reproduced below:-

  “24.  Finality of orders:- Every order of a District Forum, the State Commission or the National Commission shall, if no appeal has been preferred against such an order under the provisions of this Act, be final.”

  5.      It is well settled that mere preferring of an appeal would not operate as stay of an order appealed against.  The Apex Court in the case of Atmaram Properties (P) Ltd. vs. Federal Motors (P) Ltd. (2005) 1 SCC 705, had held as follows:-

  “8.     It is well settled that mere preferring or an appeal does not operate as stay on the decree or order appealed against nor on the proceedings in the court below.  A prayer for the grant of stay of proceedings or on the execution of decree of order appealed against has to be specifically made to the appellate court and the appellate court has discretion to grant an order of stay or to refuse the same.  The only guiding factor, indicated in rule 5 aforesaid is the existence of sufficient cause in favour of the appellant on the availability of which the appellate court would be inclined to pass an order of stay.  Experience shows that the principal consideration which prevails of the appellate court is that inspite of the appeal having been entertained for hearing by the appellate court, the appellant may not be deprived of the fruits of his success in the event of the appeal being allowed.  This consideration is pitted and weighed against the order paramount consideration: why should a party having succeeded from the court below be deprived of the fruits of the decree or order in his hands, merely because the defeated has chosen to invoke the jurisdiction of the superior forum.  Still the question which the court dealing with a prayer for the grant of stay asks itself is, why the status quo prevailing on the date of the decree and/or the date of making of the Application for stay be now allowed to continue by granting stay, and not the question why the stay should be granted.”

6.         Even in the case of Shree Chamundi Mopeds Ltd. vs. Church of South India Trust Association (1992) 3 SCC 1: (AIR 1992 SC 1439), the Apex Court has held that wherein operation of the order has been stayed by the court, it only means that such an order would not be operative from the date of its passing.  It would not mean that the order stayed had been wiped out from existence and the order of stay granted pending disposal of a case comes to an end with the dismissal of the substantive proceeding and it is the duty of the court in such cases to put the parties in the same position they would have been but for the interim orders of the court.

7.         Thus, in view of the authoritative pronouncement of the Apex Court, referred to above, the first plea of Shri Paul that as the appeal has been preferred before the State Commission against the order dated 7-10-1996 passed by the District Forum, no action for its non compliance or violation can be taken by the District Forum, has no merits and is hereby rejected.”

10.    The Act aims to protect the economic interest of a consumer as understood in commercial sense as a purchaser of goods and in the larger sense of user of services.  The purpose of the Act being to provide speedy relief to the Consumer, the interpretation suggested by the learned counsel would not be in consonance with the said objective, since it would allow an unscrupulous defaulter to deny the rightful dues of a Consumer, merely by filing an appeal, howsoever meritless it may be, dispose of or hide his assets so as to avoid enforcement under Section 25 of the Act and then escape the penal provisions of Section 27 of the Act, by pleading that his appeal being pending, no proceedings under the said Section can be initiated against him.

11.     For the reasons stated in above, we are of the considered view that if a person against whom an order is passed by the District Forum, the State Commission or the National Commission as the case may be, fails or omits to comply with the said order, he can be proceeded against under Section 27 of the Act, even if he has filed an appeal against the order made against him, provided of course that the said order has not been stayed by a superior forum.  In the case before us, though the appeals filed by the appellants against the order of the State Commission dated 31.01.2012 are pending, there is no stay of the said order since the appellant has not complied with the condition, subject to which the stay of the said order was granted by this Commission.  Consequently, the proceedings under Section 27 of the Act are maintainable against the appellants.  We find no merit in the appeals and the same are hereby dismissed.