Oral Order: (R. Lakshminarasimha Rao, Member)
1. The revision petitioner is 3rd party to the proceedings before the District Forum. The revision is challenge to the order of the District Forum dated 3.01.2013 restraining her from making payment of Rs.2,50,000/- to the first respondent/opposite party.
2. The second respondent filed compliant in C.C.No. 54 of 2011 against the respondent no.1 claiming refund of an amount of Rs.1,00,000/- and the District Forum allowed the complaint on 25.08.2009 awarding refund of the amount of Rs.1,00,000/- with interest @9% p.a. and a sum of Rs.25,000/-towards compensation. As the first respondent had not preferred appeal, the order of the District Forum became final.
3. The second respondent filed execution petition in E.A.No. 10 of 2012 on 25.04.2012 under the provisions of Section 27 of the Consumer Protection Act for prosecution of the first respondent on account of non-compliance of the order of the District Forum. The District Forum stated to had issued warrant against the first respondent and the learned counsel for the second respondent submitted that the warrant is pending execution against the first respondent.
4. During pendency of the EA, the second respondent filed a petition in I.A.No. 1 of 2013 on 3.01.2013 seeking for attachment of Flat No.206 which the first respondent agreed to sell to the petitioner and the District Forum has passed the following order:
After the main CC is disposed off and the petitioner has filed a petition under section 27 of CP Act the provisions as that of summary trial followed in Criminal Court should be followed. Hence, by following the provisions of Rule 83 of Cr.P.C. it is hereby ordered that a balance of sale consideration payable by Smt Yadav Sai Lakhsmi, W/o Yadav Seshagiri, residing of flat no.206, Venkataramana Towers, Chenna Reddy Colony, near Kendriya Vidyalaya School is hereby attached to the extent of Rs.2,50,000/- Rupees two lakhs and fifty thousand only) and the said Sai Lakshmi is hereby restrained from making payment to the extent of rS.2,50,000/-. It is further directed that Smt .Yadav Sai Lakshmi should deposit the said amount into this Form on or before 21.01.2013.
5. The revision petitioner has filed objection that the District Forum ought not to have proceeded under Section 83 of Cr.P.C. without following the mandate of Section 82 of Cr.P.C. which prescribes for publication of notice or written proclamation. The petitioner has contended that she paid part of sale consideration of the Flat no.206 to the first respondent and expressed her readiness to pay balance sale consideration and the first respondent has postponed to execute sale deed on the premise that the landlord had disputes with him and the landlady filed CCNo.88 of 2010 against him which is pending disposal on the file of the District Forum, Thirupathi.
6. The petitioner submitted that the first respondent is absconding and she has to pay the balance sale consideration after availing loan from the LIC Housing Corporation which would release the loan amount after the sale deed is executed and the order of attachment issued under Section 83 of Cr.P.C. is bad in law and it cannot be made applicable to the penal proceedings under Consumer Protection Act in view of Section 27 of the Consumer Protection Act and sought for setting aside the order of attachment.
7. The District Forum has passed order on 15.03.2013 modifying the direction to deposit the amount before it in view of Section 83 of CrPC prescribing the sale proceeds of the attached property to be deposited before the State and the District Forum held the rest of its order as valid, the operative portion of the order reads as under:
Lastly the counsel for the 3rd party objector contended that only in the event of respondent agreeing to execute the sale deed, the 3rd party objector is under obligation to pay the balance of sale consideration and unless and until the amount is paid, the respondent may not execute the sale deed. Legally the respondent still stands to be the owner and in fact this Forum has restricted the attachment only to the extent of the amount due and payable and in fact the forum could have attached the entire property and only to safeguard the interest of present petitioner, an interim attachment is ordered nad no hardship is caused to the resent petition. Hence, it is held that the objections are not sustainable and accordingly it is held that attachment is valid and will be subsisting till the respondent is secured nad the order directing the 3rd party/objector to deposit the amount in the forum is held not valid and modified into that effect. This petition is closed with the above modification. No costs.
8. Aggrieved by the order of the District Forum, the petitioner has filed the Revision contending that the District Forum exercised jurisdiction not vested in it and that the District Forum has no power to issue order of attachment even when the first respondent is absconding and that the order of attachment issued against the property of the petitioner will not have any effect on the first respondent and he can conveniently avoid to comply with the order of the District Forum.
9. The petitioner has contended that spirit of Section 82 and 83 of Cr.P.C. are the modes provided by the statute to compel the violator to surrender or comply with the order. It is contended that the order of attachment issued attaching the property of third party will not have any effect on the first respondent and it will cast untenable stigma on the property of the third party.
10. The point for consideration is whether the order of the District Forum suffers from misappreciation of facts or law?
11. The second respondent filed EA.No.10 of 2013 seeking for punishment of the second respondent against whom the District Forum has passed the order on 9.3.2012 allowing the complaint filed by the second respondent. The penalty proceedings would also lie with the District Forum as couched under Section 27 of the Consumer Protection Act without giving any scope for interpretation. For benefit of better appreciation, we re-produce Section 27 of the Consumer Protection Act.
27. Penalties. -
(1) Wherea trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person or complainant 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 two thousands rupees but which may extend to ten thousand rupees, or with both:
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974), the District Forum or the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of the first class for the trial of offences under this Act, and on such conferment of powers, the District Forum or the State Commission or the National Commission, as the case may be, on whom the powers are so conferred, shall be deemed to be a Judicial Magistrate of the first class for the purpose of the Code of Criminal Procedure, 1973 (2 of 1974).
(3) All offences under this Act may be tried summarily by the District Forum or the State Commission or the National Commission, as the case may be.
12. During pendency of the aforementioned proceedings, the second respondent has filed petition for attachment of the property of the first respondent and the District Forum passed the order attaching the amount of Rs.2,50,000/- which is due from the revision petitioner towards balance sale consideration of the Flat bearing number 206. The District Forum observed that the revision petitioner has been residing in the Flat bearing no.206 and yet it proceeded to issue attachment order. Section 25 and 27 of the Consumer Protection Act are two independent provisions. Section 25 of the CP Act is purely civil in nature whereas Section 27 of the Act is of penal nature.
13. The District Forum issued warrant of arrest against the first respondent and thereafter on filing of the petition in I.A.No. 1 of 2013 by the second respondent, the District Forum passed the order of attachment to the extent of Rs.2,50,000/- payable by the petitioner to the first respondent. The attachment order was passed by the district Forum by applying Section 82 of Cr PC which in our view is in excess of its power.
14. The Consumer Protection Act provides for execution of the Order by invocation of Section 25 and for punishment of the person against whom the order is passed by means of Section 27 of the Act. The complainant’s plea can be considered if the opposite party is shown to have disobeyed or not complied with the direction issued by the District Forum. The very filing of the execution application by the opposite party establishes its intention to obey the order in its true spirit. The nature of the relief granted by Section 25 and Section 27 of the Consumer Protection Act is quite different and Section 27 provides for punishment for non-compliance of the order passed against the person who had suffered the order. Section 25(3) of the Consumer Protection Act reads as under:
25(3) Where any amount is due from any person under an order by a District Forum, State Commission or the National Commission, as the case may be, the person entitled to the amount may make an application to the District Forum, the State Commission or the National Commission, as the case may be, and s
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uch District Forum or the State Commission or the National Commission may issue a certificate for the said amount to the Collector of the district (by whatever name called) and the Collector shall proceed to recover the amount in the same manner as arrears of land revenue. 15. The second respondent ought to have filed a separate application under the provisions of Section 25 (3) of the Consumer Protection Act in case he intended to seek for attachment of property of the first respondent The amount that the first respondent is ordered to pay can be recovered by application of provisions of Revenue Recovery Act by the District Collector concerned. The District Forum ought to have issued certificate for the amount due in terms of its order from the first respondent, to the District Collector for recovery of the amount and it had exceeded its jurisdiction and as such the order passed in Cr.M.A.No. 01 of 2013 is liable to be set aside. 16. In the result, the revision petition is allowed setting aside the order dated 5.03.2013. There shall be no order as to costs.