DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> EA No. 34 of 08-09-2009<br /> Decided on : 12-10-2009 <br /> <br /> Gurvinder Singh S/o Sh. Gurdev Singh R/o VPO Mehma Sarja, District Bathinda 151 201.<br /> .... Complainant/Applicant<br /> Versus<br /> <br /> Sh. Narinder Singh, Shop Nobel Informatique, Behind Hotel Bahia Fort, Bahia Fort Road, Bathinda.<br /> ... Opposite party/Respondent<br /> <br /> Complaint under Section 27 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM <br /> <br /> Sh. George, President<br /> Dr. Phulinder Preet, Member<br /> Sh. Amarjeet Paul, Member<br /> <br /> For the applicant : Complainant in person <br /> For the respondent : None<br /> <br /> O R D E R<br /> <br /> GEORGE, PRESIDENT<br /> <br /> 1. Sh. Gurvinder Singh, complainant (here-in-after referred to as 'applicant') has moved this Forum against the opposite party (here-in-after referred to as 'respondent') for making an order of punishment under Section 27 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') on the ground that the respondent has failed and omitted to comply with the order dated 21-04-2009 made by this Forum wherein the opposite party was ordered to refund a sum of Rs. 3850/- being the price of printer sold to the complainant and a sum of Rs. 400/- paid by him to his representative for installation thereof alongwith interest 9% P.A. from the date of receipt of copy of copy of this order. The opposite party was also burdened in the sum of Rs. 2,000/- on account of mental tension and harassment suffered by him and another sum of Rs. 1,000/- on account of cost of filing of complaint within the period stipulated above. <br /> 2. On receipt of complaint, show cause notice was issued to the opposite party but despite dasti service on 30-09-2009, the opposite party did not appear before this Forum and as such, exparte proceeding were taken against him.<br /> 3. As per the order of this Forum in CC No. 342 of 23-12-2008 decided on 21-04-2009, the allegations against opposite party No. 2 were dismissed and complaint was accepted against opposite party No. 1 i.e. the opposite party in the present case. The opposite party was directed to refund a sum of Rs. 3850/- being the price of printer sold to the complainant and a sum of Rs. 400/- paid by him to his representative for installation alongwith interest @9% P.A. from the date of sale i.e. 12-06-2008 till actual payment. The opposite party was further directed to comply the said order within a period of one month from the date of receipt of copy of this order. The opposite party was also directed to pay a sum of Rs. 2,000/- on account of mental tension and harassment suffered by the complainant and another sum of Rs. 1,000/- on account of cost of filing of the complaint, within the period stipulated above. <br /> 4. That the copy of this order was sent to opposite party vide Despatch No. 847 dated 12-05-2009 through speed post vide postal receipt No. SPEE 784592145IN dated 12-05-2009 meaning thereby that the opposite party must have received the copy of the order on or before 15-05-09. Accordingly, the opposite party was to comply with the order referred to here-in-above within a period of one month i.e. on or before 15-06-2009. The opposite party in fact has intentionally omitted to comply with the order and therefore,a the complainant had to move this Forum vide his execution application dated 08-09-2009 under Section 27 of the 'Act' for enforcing the order passed by this Forum referred to above. <br /> 5. That a show cause notice dated 15-09-2009 was issued to the opposite party Sh. Narinder Singh, alongwith copy of complaint whereby he was informed that a complaint titled Gurvinder Singh Vs. Narinder Singh was decided by this forum vide order dated 21-04-09 against him and copy of the same was delivered to him on 12-05-2009 and he was directed to comply with the order of this Forum within a period of 30 days from the date of receipt of copy of the said order. It was further informed that the complainant has filed an application under Section 27 of the Act and therefore, he was directed to show cause on 06-10-2009 by appearing in person as to why he be not punished under Section 27 of the 'Act'. It was also clarified in the said show cause notice that if he failed to appear on the said date, exparte proceedings shall be taken against him. This show cause notice was duly served Dasti upon him and he received show cause notice alongwith copy of complaint on 30-09-2009. <br /> 6. That on 06-10-2009 despite due service, opposite party did not appear before this Forum to show any cause as to why he could not comply with the order of this Forum within a period of 30 days from the date of receipt of copy of the order. He was accordingly proceeded against exparte.<br /> 7. We have heard the complainant in person and perused the entire record of the case.<br /> 8. It appears from the order in CC No. 342 of 23-12-2008 decided on 21-04-2009 that in the proceedings under Section 12 of the 'Act' i.e. the main complaint, the opposite party Sh. Narinder Singh did not appear to contest the allegations and therefore, exparte proceedings were taken against him. It appears that despite receiving show cause notice dated 15-09-2009 wherein he was not only informed, about the order of this Forum dated 21-04-2009 which he was required to comply but he was also informed that in case he will not appear in person to show cause on the date fixed i.e. 6-10-2009, the proceedings shall be taken against him exparte.<br /> 9. From the facts and circumstances as are emerging from the record, it appears that Sh. Narinder Singh has adopted an adamant and uncooperative attitude not to respond to the summons/show cause notice issued to him from time to time to appear before this Forum and to explain his circumstance as to why the complaint was moved against him under Section 12 of the 'Act' and thereafter despite copy of order was sent to him by speed post as referred to above, he did not care to comply with the same, within the stipulated time. <br /> 10. That the adamant attitude of the opposite party as is emerging from the record of the case makes it clear that it is not a accidental or unintentional omission on his part rather the record available with us reveals and leaves no doubt in our mind that the opposite party despite receiving the copy of this order by speed post and also show cause notice dated 15-09-2009 in person, failed and omitted to comply with the order referred to above intentionally and therefore, he has made himself liable for an appropriate action under Section 27 of the 'Act'. <br /> 11. We are conscious of the fact that the legislature while enacting Consumer Protection Act was mindful of the delays, that are caused by the judgement debtors at the time of execution. So it is in its wisdom enacted Section 27, so that a decree holder, if he so wishes, can prosecute the judgement debtor, in case he fails to pay the decretal amount. If the matter is viewed from this angle, it is evident that Section 25 and 27 are in the nature of execution proceedings and constitute independent remedies. The decree holder can avail any of them at his will. It does not mean, that he cannot avail of the other remedy, if by availing of one remedy, he fails to recover the amount and thus, we are of the considered view that an application under Section 27 of the 'Act' is maintainable by the decree-holder against a judgement debtor, inspite of the fact that a remedy by way of execution is available to him under Section 25 of the 'Act'. Similar view has been taken by the Hon'ble State Consumer Disputes Redressal Commission, Delhi in the case titled Om Prakash Bhatia Vs. Deepu Chits Pvt. Ltd., & Ors. 1992(I) CPR 671 = 1993(I) CPJ 567.<br /> 12. We are also conscious of the fact that proceedings under Section 27 of the 'Act' are criminal in nature. So, it is the duty of the Forum, before taking any punitive action under Section 27 of the 'Act', to provide adequate opportunity to judgement debtor/opposite party to defend. <br /> 13. That in the present case, the opposite party not only avoided to contest the allegations raised against him in the main complaint where he was proceeded against exparte but he also did not care to enquire about the proceedings initiated against him after he received copy of the judgement sent to him by this Forum through speed post and thereafter he further appears to have shown his no concern and passive attitude to comply with the order of this Forum when he was issued a show cause notice dated 15-09-2009 which was received by him in person (dasti). Therefore, we are satisfied that this Forum has discharged its obligation and provided the opposite party adequate opportunity to defend himself.<br /> 14. We are also conscious of the fact that in a criminal case judgement wherein accused is to be sentenced in general, has to be pronounced in his presence seeking and affording him opportunity of being heard on the quantum of sentence. Further in the present case, the facts and circumstances are totally different where the conduct of the opposite party is such that he is avoiding his appearance before this Forum from the very beginning and in case the proceedings under Section 27 of the 'Act' pending before us are deferred to procure the present of the opposite party for pronouncing judgement in his presence, it will further cause undue delay in the disposal of the proceedings. If the opposite party would have been serious for adequately defending himself, he would have definitely appeared before this Forum in response to show cause notice which he received in person and therefore, taking assistance from proviso of Sub section (6) of Section 353 of the Code of Criminal Procedure, in order to avoid undue delay in disposal of the proceedings, we are of the opinion that it is a fit case where judgement can be pronounced notwithstanding absence of the opposite party.<br /> 15. After taking into consideration continuous adamant attitude of the opposite party not only to avoid proceedings before this Forum but also not responding to the show cause notice and willful omission to comply with the order of this Forum, the conduct of the opposite party is such which does not move us to take a lenient view as he has failed and also omitted to comply the order of this Forum with impunity. Taking into consideration all pros and cons, facts and circumstances and the adamant attitude of the opposite party, we proceed to sentence the opposite party to undergo simple imprisonment for two months and also to pay a fine of Rs. 10,000/-. In case of default of payment of fine, the opposite party shall further undergo imprisonment for a period of three months.<br /> Pronounced :<br /> 12-10-2009 <br /> <br /> (George)<br /> President<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member <br /> <br /> (Amarjeet Paul) Member