STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 12.12.2017
Date of final hearing: 23.08.2023
Date of pronouncement: 01.09.2023
Revision Petition No.133 of 2017
IN THE MATTER OF:
Vimal @ Bimal Lakhotia S/o Sh. Poonam Chand, R/o H.No. 116, Sector-11E, Faridabad, Tehsil Ballabgarh, Distt. Faridabad, Haryana.
....Revisionist
Versus
1. Priyamvada Khare D/o Sh. Yattendra Nath Khare, R/o Qr. No. 1039, Type-4, N.H.-4, NIT, Faridabad, Distt. Faridabad, Haryana.
2. M/s Avaloan Aviation Academy Pvt. Ltd., SCO No. 58-59, Sector-31, Above Reliance Fresh, Near Pristine Mall, Faridabad, through its whole time Director Ms. Anuj Priya Kacker.
CORAM: Naresh Katyal, Judicial Member
Argued by:- Sh. Anirudh Kush, counsel for the petitioner.
None for respondent No.1.
Sh. Dixit Garg, counsel for respondent No.2.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Challenge in this Revision Petition No.133 of 2017 has been invited by Vimal @ Bimal Lakhotia to the legality of order dated 17.10.2017 passed by District Consumer Disputes Redressal Forum-Faridabad (In short “District Consumer Commission”) in Execution Petition No.76 of 2013 vide which: Bailable warrant has been issued against him in a sum of Rs.2,000/- with one surety in the like amount for 22.12.2017.
2. Complaint No. 267 of 2011 titled as “Priyamvada Khare versus M/s Avalon Aviation Academy Pvt. Ltd.” through its Managing Director Mr. Vimal Lakhotia was filed on 13.07.2011 and same was allowed on 09.07.2012. Para No. 6 is the operative part of order dated 09.07.2016. It is reproduced below:-
“6. Resultantly, the respondent is directed to refund an amount of Rs.1,31,918/- to the complainant with interest @9% p.a. from 07.03.2011 (last date of payment of fee) till the date of actual payment.
ii) The respondent is further directed to pay an amount of Rs.40,000/- to the complainant towards the wastage of her one year, mental harassment and litigation expenses.”
3. Execution Petition No. 76 of 2013 was filed by complainant on 08.07.2013. In execution proceedings, warrants were issued against Vimal @ Bimal Lakhotia. In memorandum of this Revision Petition; there is an express averment in ground No. (v) that revisionist appeared and filed affidavit (Annexure P-2) mentioning that: he has no concern with the company i.e. respondent No. 2 nor any family member of revisionist is having any concern with respondent No. 2. Learned District Consumer Commission asked DH to furnish fresh name of Director vide order dated 20.03.2013 (Annexure P-3). In record of this Revision Petition; though affidavit Annexure P-2 has been filed, but same is qua Frahan Khan and relates to Execution No. 108 dated 28.08.2012. More so, order of learned District Consumer Commission dated 20.03.2013 has been mentioned in ground No. 5 as Annexure P-3 but same has not been appended as such along with this Revision Petition. This being so, this Commission cannot consider affidavit Annexure P-2, which does not relate to case of complainant-Priyamvada Khare. However, since specific plea, taken in memorandum of Revision Petition in ground No. (v), as reproduced above, remained uncontroverted from the side of OP No.2, during course of arguments, therefore, judicial notice of quality of above mentioned plea can be taken, which undoubtedly has formed a formidable and acceptable base at legal pedestal.
4. Vimal Lakhotia also filed application for recalling warrants and for deleting his name assigned as Managing Director of JD Company. Application was dismissed on 02.06.2017. In that order (dated 02.06.2017) also, it has been observed in para No. 3 that: “However, in view of the order dated 20.03.2013, DH is directed to file name of another Director of JD till 14.06.2017”. Vimal Lakhotia also filed Revision Petition No. 84 of 2017 earlier before this Commission on 13.09.2017. It was dismissed as withdrawn vide order dated 31.10.2017.
5. Name of other Director of JD-firm was not given by DH in terms of order dated 02.06.2017 passed in execution proceedings or in terms of order dated 20.03.2013. In wake of above situation; vide order dated 17.10.2017 (impugned herein); Bailable warrants were again issued against Vimal Lakhotia.
6. Feeling aggrieved; he filed present Revision Petition.
7. Learned counsel appearing for revisionist has contended that revisionist did not raise any contest to the consumer’s complaint. He was wrongly projected as Managing Director of M/s Avalon Aviation Academy Pvt. Ltd. (JD-firm) in the array of memo of parties and this fact came to his knowledge when he received warrants issued by learned District Consumer Commission in execution proceedings. It is urged that JD/firm (M/s Avalon Aviation Academy Pvt. Ltd.-respondent No.2 herein) was only a tenant in the premises of revisionist. It is also urged that M/s Avalon Aviation Academy Pvt. Ltd. filed written statement and evidence by way of affidavit of its Director namely Ketan H. Shah in consumer’s complaint. It is further urged that in terms of orders dated 20.03.2013 and 02.06.2017; DH was required to file name of another Director of JD/firm namely M/s Avalon Aviation Academy Pvt. Ltd., which was not done and impugned order dated 17.10.2017 was passed, whereby Bailable warrants against revisionist were again issued.
8. Learned counsel appearing for respondent No.2 herein-M/s Avalon Aviation Academy Pvt. Ltd. could not put forward any convincing argument to counter the submissions made on behalf of revisionist. He has only urged that execution proceedings are still pending before learned District Consumer Commission and simultaneously also endorsed that name of fresh Director of M/s Avalon Aviation Academy Pvt. Ltd. was not filed by DH in the execution proceedings in terms of order dated 20.03.2013 and 02.06.2017.
9. Vide order dated 14.12.2017 passed by this Commission implementation of impugned order 17.10.2017 qua issuance of Bailable warrants against Vimal Lakhotia has been stayed. On imparting subjective analysis to the rival submissions; this Commission is of firm opinion that impugned order dated 17.10.2017 is legally not sustainable. As per un-rebutted fact, pleaded in memorandum of this Revision Petition (Ground No. (v); affidavit dated 20.03.2013 of revisionist was filed before learned District Consumer Commission in execution proceedings, as per which neither revisionist nor any of his family member has any concern with respondent No. 2 i.e. JD/Firm-M/s Avalon Aviation Academy Pvt. Ltd. Likewise, revisionist has not contested the main complaint before Hon’ble Forum which was contested by respondent No. 2 through its Director Ketan H. Shah who has filed the written statement and evidence by way of affidavit (Note: Ground No. ii of Revision Petition). Taking note of above facts, learned District Consumer Commission in execution vide its order passed on 20.03.2017 asked DH to file name of another Director of M/s Avalon Aviation Academy Pvt. Ltd. Identical is the type of recital of Para No. 3 of order dated 02.06.2017 passed by learned District Consumer Commission. Compliance of this order was not done by DH and order dated 17.10.2017 got the light of its day vide which Bailable warrants were again issued against revisionist.
10. At legal pedestal, Bailable warrants are only issued to secure the presence of any JD/respondent, so that the legal proceedings to get the order executed, should continue its pace, meaningfully. It is for no other purpose. In the present case, as it is so apparent from file of this Revision Petition that Bailable warrant has been issued against Vimal @ Bimal Lakhotia, by projecting him to be Managing Director of M/s Avalon Aviation Academy Pvt. Ltd. in the execution proceedings. This has been done, only because in the consumer complaint M/s Avalon Aviation Academy Pvt. Ltd. has been sued through Managing Director and revisionist has been projected as Managing Director. Palpably, the error qua name of Managing Director had been brought to the notice of Executing Court by revisionist through his affidavit dated 20.03.2013. The whole process of materializing the relief granted to DH through order dated 09.07.2012 passed in consumer complaint has landed in jeopardy. Revisionist cannot be called upon in execution proceedings to answer the relief granted to DH in consumer complaint in the light of his affidavit dated 20.03.2013, particularly when revisionist had not raised any contest in the proceedings of consumer’s complaint in his alleged capacity as Managing Director of M/s Avalon Aviation Academy Pvt. Ltd. He has been wrongly projected as Managing Director of JD-firm. As per the memorandum of this Revision Petition (ground No. ii); consumer complaint was contested by Ketan H. Shah who had filed written statement and evidence by way of affidavit. Consequently, issuance of Bailable warrants against revisionist-Vimal @ Bimal Lakhotia through impugned order dated 17.10.2017 is a gross illegality.
11. This being so, impugned order dated 17.10.2017 cannot sustain at legal pedestal. It suffers from illegality and accordingly set aside. This Revision Petition is allowed. DH/Priyamvada Khare will now furnish fresh name and address of Managing Director of JD-firm namely M/s Avalon Aviation Academy Pvt. Ltd. in the execution proceedings to enable the Executing Court/learned District Consumer Commission to proceed ahead as per law.
12. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
13. File be consigned to record room.
Date of pronouncement: 01st September, 2023
Naresh Katyal
Judicial Member
Addl. Bench-II
