Per Smt Jayashree D Yengal, Hon’ble Member
This revision petition is preferred by the original opponent feeling aggrieved by the orders dtd.09.12.2010 & 19.04.2011 passed by the Addl. District Consumer Forum, Nagpur in Misc. Case No.EA/10/80, thereby issuing show cause notice and non-bailable warrant against the revisionist / original o.p. in the said execution proceedings.
The brief facts giving rise to this revision petition are:-
1. Order dtd.15.01.1998 came to be passed by the Addl. District Consumer Forum, Nagpur in consumer complaint No. CC/96/435 (Old) – CC/97/504 (New) partly allowing the complaint and directing the revisionist company / original o.p. to remove technical defects in the car to the satisfaction of the non-applicant / original complainant and to pay an amount of Rs.8,628/- alongwith interest @ 18% from 31.12.1996. The Forum further granted compensation Rs.5,000/- towards mental & physical harassment and Rs.500/- towards litigation expenses.
2. On 28.02.2006, the revisionist - company / org. o.p. was wind up vide order passed by the Hon’ble High Court, Karnataka in the Company Petition No.120/97 C/w 64/96, 18/97, 117/97, 145/97 & 146/03 and further the Official Liquidator was directed to take over the assets of the Company.
3. On 08.12.2010 the non-applicant / org. complainant filed an application u/s 27 of Consumer Protection Act bearing No. EA/10/80, thereby implicating the present applicant in the said proceedings for the non-compliance of the order dtd.15.01.1998 and further praying for criminal action against the present revisionist.
4. The Addl. District Consumer Forum, Nagpur was pleased to issue Show Cause Notice to the applicant on 09.12.2010 and further on 19.04.2011 the Addl. District Consumer Forum issued non-bailable warrant against the present applicant.
5. Against these orders dtd.09.12.2010 & 19.04.2011 passed in execution proceedings by Addl. District Consumer Forum, Nagpur that the original opponent has come before this Commission in revision.
4. Adv. Mr Bhardwaj for the revisionist vide this revision petition prayed for quashing the execution proceedings in EA/80/2010 on the ground that since the Company is wind up on 29.02.2006 vide order passed by Hon’ble High Court, Karnataka and the Official Liquidator has taken the charge of assets of the company, the execution proceedings against the company is not tenable, Official Liquidator being the necessary party. Therefore, the proceedings be quashed. In support of this contention, he has filed copy of judgement and order dtd.28.04.2006, passed by the National Commission in Revision Petition No.1424/1996 – Sipani Automobiles Ltd Vs. Inderdeep Singh, which reads as under:-
“The learned counsel appearing on behalf of Sipani Automobiles Ltd., presently known as Maestro Motors Ltd. has shown us an order dated 28th February, 2004 passed by the Karnata High Court. It appears that the Karnataka High Court has appointed an Official Liquidator and he was directed to take over the assets of the Sipani Automobiles Ltd. Since this is a certified copy of the order, we take not of it.
Presently the appeals would not be maintainable unless the appellant takes permission under Section 446 of the Companies Act from the Karnataka High Court or the concerned Tribunal to pursue the matter. Even the Sipani Motors on their own in absence of Official Liquidator cannot pursue the appeal. Therefore, both the parties are directed to seek appropriate direction from the Karnataka High Court or the concerned Tribunal to pursue their appeals.
But both the parties are however at liberty to implead the Official Liquidator as a party but that by itself would not be sufficient to proceed without requisite permission of the concerned Court under Section 446 of the Companies Act.”
5. Although, it is not disputed that the order passed by Addl. District Consumer Forum, Nagpur is dtd.15.01.1998 and till date it has not been complied with and the original complainant has also failed to file execution of the impugned order till 2010 the legal developments, arising in the intervening period namely, the winding up order, passed by the Hon’ble High Court, Karnataka, renders the execution proceedings untenable as the Official Liquidator has stepped into the shoes of the Managing Director of the Company and also no permission appears to have been sought as per section 446 of the Companies Act from the Karnataka High Court. Therefore, on this ground, itself, the execution proceeding is not tenable and under the circumstances, the proceedings need to be quashed.
Hence, we pass the following order:
ORDER
i. Revision Petition bearing No.RP/11/25 is allowed.
ii. Proceedings under the Misc. Case No. EA/10/80 against the Revision Petitioner Ridhkaran S/o Bharudan Sipani is quashed.
iii. No order as to cost.
iv. Copy of this order be supplied to the parties.
Pronounced on 08.12.2011.
