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Dr. Punam Dahiya v/s M/s. Parker Estates Developers

    Appeal Execution No. 82 of 2018

    Decided On, 22 July 2021

    At, National Consumer Disputes Redressal Commission NCDRC

    By, MEMBER

    For the Appellant: Vikas, Advocate. For the Respondent: Nemo.

Judgment Text

Taken up through video conferencing.

Heard the learned counsel for the appellant.

Perused the material on record.

1. This matter is titled "APPEAL EXECUTION No. 82 of 2018".

"APPEAL EXECUTION" has been written in ink, after partially erasing "REVISION PETITION" (which was earlier printed).

The subject on the title page is written (printed) as "REVISION PETITION AGAINST THE IMPUGNED ORDER DT. 16/02/2018".

The party which has come before this Commission is written (printed) as "Petitioner" (and not 'Appellant').

In para 7 it is inter alia written (printed) "- - - the present petition is being filed by the petitioner - - -".

The Section of The Consumer Protection Act, 1986, under which this matter has been brought before this Commission, is not mentioned.

2. Learned counsel submits that initially he had preferred "(Execution) Revision Petition", but, on "oral advice" by the Registry of this Commission, has changed it to "Appeal (Execution)".

Learned counsel further submits that he cannot specify the Section(s) of the Act 1986 under which this matter has been filed before this Commission.

3. A miscellaneous application, MA No. 01 of 2018, has been placed on the case-file, being an application "for re-opening the Execution petition and for issuing further directions".

The State Commission disposed of the said MA vide its Order dated 16.02.2018 in E.A. No. 52 of 2016 in C.C. No. 305 of 2011.

A copy of the E.A. has not been filed.

The Order dated 16.02.2018 of the State Commission has been impugned before this Commission.

The said Order reads as below:

"16.02.2018 "MA-01/18 "File taken up today on application for reopening of execution moved by DH consigned on 15.05.2017 as satisfied.

"Present: Ms. Nidhi Jain, Counsel for the DH.

"The main grievance of the DH is regarding wrongful deduction of TDS amounting to Rs.3,91,793/-. Irrespective of the facts whether TDS was deductable or not, refund of the same can be claimed by DH only. JD after depositing the same in income tax, cannot claim the refund thereafter.

"Other figure of Rs.2,17,609/- is stated to be on account of difference in calculation of interest. DH should have verified the same at the relevant time, it cannot be reopened after about one year. The application is dismissed."

4. A perusal of the State Commission's Order shows that the issues raised related to deduction of TDS and calculation of interest. The State Commission declined to re-open the execution proceedings after about one year, and dismissed the miscellaneous application.

5. Execution proceedings, to execute an Order that has attained finality within the meaning of Section 24 Finality of orders of the Act 1986, whether for Enforcement under Section 25(3), or for Penalties under Section 27(1), are distinctively different from adjudication of a 'consumer dispute', are separate independent proceedings.

'consumer dispute' is defined in Section 2(1)(e) of the Act 1986 (" "consumer dispute" means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint") Section 21(b) Jurisdiction of the National Commission is in relation to a 'consumer dispute' (" - - - to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission - - -").

6. Remedy against an Order passed under Section 25(3) Enforcement, or under Section 27(1) Penalties, in execution of a final Order (decree), in the separate independent execution proceedings, does not lie under Section 21(b) of the Act 1986.

7. An appeal against an order of the State Commission passed in the adjudication of a 'consumer dispute' lies under Section 19 Appeals, whereas an appeal against an order of the State Commission passed in proceedings under Section 27 does not lie under section 19 Appeals but lies under Section 27A Appeal against an order passed under section 27.

8. A plain reading .of the State Commission's impugned Order of 16.02.2018 makes it clear that it is not an order of punishment, for imprisonment or fine or both, as could have been passed under Section 27 Penalties.

As such, Appeal (Execution) thereagainst does not lie under Section 27A.

9. Thus, neither any (Execution) Revision Petition against the impugned Order dated 16.02.2018 of the State Commission (which was passed on a miscellaneous application seeking to re-open execution proceedings conducted and closed by the State Commission and in which the issues related to deduction of TDS and calculation of interest) would lie under Section 21(b), nor Appeal (Execution) against the said Order would lie under Section 27(1).

10. Looking at the matter from the point of view of (Execution) Revision Petition, the revisional jurisdiction of this Commission can be invoked under Section 21(b) of the Act 1986 only apropos "consumer disputes" and not in respect of separate independent proceedings of execution under Section 25(3) or under Section 27(1).

Looking at the matter from the point of view of Appeal (Execution), the appellate jurisdiction of this Commission can be invoked under Section 27A of the Act 1986 only apropos an order passed under Section 27(1) and not in respect of an order passed under Section 25(3).

Thus, loo

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king at it either way, the matter brought before this Commission is not maintainable under Section 21(b) or under Section 27A of the Act 1986. 11. The matter is dismissed as not maintainable. This Commission has not gone into the merits of the matter. As such, remedy can be sought in the appropriate forum or the appropriate court as per the law. 12. The Registry is requested to send a copy each of this Order to all the parties in the matter and to their learned counsel within three days. The stenographer is requested to upload this Order on the website of this Commission immediately.