HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This appeal has been filed under section 73 of the Consumer Protection Act, 2019 ( in short, ‘the Act’) challenging the impugned order No. 39 dated 10.01.2023 passed by the Learned District Consumer Disputes Redressal Commission, North 24 Parganas at Barasat ( in short, ‘the District Commission’) in connection with Execution Application No. 1/2018 filed by the Respondent / Dhr by which the application for exemption of interest as imposed by the District Commission was rejected with a cost of Rs.500/- payable to the Dhr.

2. The short fact is that Respondent / Dhr. Susmita Dutta filed a complaint case against the Appellant / Jdr. and the said complaint case was allowed on 22.11.2017. The Appellant was directed to refund Rs.1,50,000/- (Rupees one lakh and fifty thousand) only to the Respondent / Dhr. within 30 days from the date of the order along with interest @ 8% per annum which shall be calculated from the date of receipt of the amount till realization. The Appellant was further directed to pay a sum of Rs.15,000/- (Rupees fifteen thousand) only as compensation and Rs.5,000/- (Rupees five thousand) only as litigation cost to the Dhr./Complainant / Respondent within 30 days from the date of this order failing which an amount shall carry an interest @ 8% per annum till realization.

3. The Appellant / Jdr. did not comply with the said order of the District Commission in a reasonable time and order of the District Commission has not yet been vacated or set aside by any higher Forum. The Respondent / Dhr. /Complainant filed Execution Case to execute the order of the District Commission dated 22.11.2017. The District Commission directed the Appellant / Jdr. to comply with the order passed by the District Commission.

4. In the Execution Case the Jdr./ Appellant appeared before the District Commission and filed an application praying for exemption of the interest as imposed by the Learned District Commission vide judgment and order dated 22.11.2017 in connection with complaint case No. CC/440/2022.

5. After hearing both sides the Learned District Commission has been pleased to reject the said exemption application for making payment of interest filed by the Jdr./ Appellant. Learned District Commission has been pleased to hold that the District Commission cannot go beyond the decree.

6. Being aggrieved by and dissatisfied with the order this appeal has been preferred. It is the contention of the Appellant / Jdr. that the District Commission has committed error in rejecting the petition dated 10.01.2023 filed by the Appellant / Jdr. The District Commission failed to apply its judicial mind at the time of passing the impugned order dated 10.01.2023. The District Commission failed to appreciate the fact that one person should not be charged with double interest once upon the principal amount @ 8% per annum, again interest on compensation and litigation cost.

7. The Learned Commission should have passed the order by allowing the petition dated 10.01.2023 and the Learned District Commission may exempt the interest @ 8% per annum upon compensation and litigation cost. As such, the Appellant / Jdr. has prayed for setting aside the impugned order dated 20.01.2023 passed by the District Commission.

8. Sub section 1 of section 72 of the Consumer Protection Act, 2019 runs as follows :-

“Whoever fails to comply with any order made by the District Commission or the State Commission or the National Commission, as the case may be, 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 twenty-five thousand rupees, but which may extend to one lakh rupees, or with both.”

9. Section 73 of the Consumer Protection Act, 2019 runs as follows :-

“73. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, where an order is passed under sub-section (1) of section 72, an appeal shall lie, both on facts and on law from -

(a) the order made by the District Commission to the State Commission;

(b) the order made by the State Commission to the National Commission; and 

(c ) the order made by the National Commission to the Supreme Court.

(2) Except as provided in sub-section (1), no appeal shall lie before any court, from any order of a District Commission or a State Commission or the National Commission, as the case may be.

(3) Every appeal under this section shall be preferred within a period of thirty days from the date of order of a District Commission or a State Commission or the National Commission, as the case may be:

Provided that the State Commission or the National Commission or the Supreme Court, as the case may be, may entertain an appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period of thirty days.”

10. From the conjoint reading of section 72 (1) and 73 it is clear that an appeal under section 73 can lie before the State Commission on facts and law if an order of conviction and sentence is passed under section 72(1) of the Act by the District Commission as against an order of conviction and sentence made by the State Commission, an appeal can be preferred to the National Commission and order of conviction and sentence passed by the Hon’ble National Commission would be appealable before the Hon’ble Supreme Court.  It appears that this instant appeal has been filed challenging an order of rejection of the application filed by the Jdr. and not any order of sentence and imprisonment.

11. It further appears that no order of sentence or imprisonment has been assailed before this Commission and has not been brought on record. As such, this appeal under section 73 of the Act is a premature one since the appeal is maintainable only if the order of sentence or imprisonment is passed and not a mere rejection of the application filed by the Jdr.

12. It, therefore, appears that the District Commission by the impugned order has merely rejected the application filed by the Jdr. / Appellant by which the Jdr. / Appellant prayed for exemption of the interest as was imposed by the District Commission at the time of passing the judgment. Therefore, the appeal under section 73 of the Act is not maintainable against an order rejecting the application filed by the Appellant / Jdr.

13. Moreover, it appears that this appeal has been filed in order to condone the delay of 43 days. Office has submitted a report that this appeal has been filed with a delay of 43 days. To explain the delay the Appellant / Jdr. has stated in the application that in getting the certified copy of the impugned order and thereafter in preparing the instant appeal few days of delay was caused. Considering the application for consideration of delay we find that the complainant has not explained the cause of delay properly. So, the delay in filing the appeal cannot be condoned.  

14. Therefore, considering the facts that this appeal has been preferred against an order of rejection of application filed by the Jdr. and not for an order of penalty under section 72 of the Act and the fact that the application has been filed with a delay of 43 days, we are of the view that this appeal deserves to be dismissed in limini as not maintainable. In the result, the appeal is, therefore, dismissed in limini as not maintainable with no order as to costs.

15. The appeal is, thus, disposed of accordingly.