How an error in order results into “No order’

It’s the most painful thing for a consumer who wins the case after putting all efforts, energy and time and it becomes null and void due to an error in understanding the real person who is to be punished. It happened with a complainant in the matter of H.K. Singla vs. Avtar Singh Saini & Ors. who had filed a complaint against secretary Chandigarh State Bank of Patiala Employees Co-operative USE Thrift & Credit Society, claiming maturity amount along with interest on his deposit with the Society. District consumer court passed an order in favour of consumer directing the society to pay the maturity amount with interest @10% per annum along with compensation to the tune of rupees ten thousand to the complainant .Since society had gone in liquidation ,they went in appeal before the state commission .State commission Chandigarh dismissed the appeal finding no error in the district consumer forum order .Now complainants comes back to the consumer forum for execution of the order under section 27 of the act .and District forum in the absence of payment of decretal amount, orders two years imprisonment and rupees 5000/- fine . Aggrieved by this order, respondent again goes to the State commission for staying the order of imprisonment. State commission passed an interim order staying the operation of order of imprisonment subject to payment of decreetal amount within eight weeks. Defendants failed to comply this order also and they filed appeal against the order of State commission before the National commission .National commission confirmed all the orders of lower courts below dated 08.11.2012 passed in First Appeal Nos.652/12; 653/12; 654-656/12; 657/12 It was held by the National Commission that district forum rightly ordered for imprisonment under section 27 of the act for non-compliance of its order, State commission rightly gave an opportunity to the opposite party to pay the decretal amount within specific period and conditionally stayed the operation of imprisonment. With this observation, National Commission dismissed the appeal holding all orders passed by the lower commissions correct

Case now comes to the Supreme Court as the case H.K. Singla Vs. Avtar Singh Saini & Ors.[Civil Appeal No. 11969 of 2018 arising out of S.L.P. (C) No.17357 of 2013] [Civil Appeal No. 11970-11972 of 2018 arising out of S.L.P.(C) Nos. 17360-17362 of 2013] [Civil Appeal No. 11973-11974 of 2018 arising out of S.L.P.(C) Nos. 17358-17359 of 2013] which were finally decided by  R. Subhash Reddy, J.on December 14, 2018

Supreme Court while looking into the matter closely found errors committed by the courts below Supreme court Observed as hereunder-

1.      District court in its order fixed the liability of secretary, Chandigarh State Bank of Patiala Employees Co-operative USE Thrift & Credit Society, to repay the deposited amount with interest to the complainant but did not make secretary liable in his individual capacity. Hence he could not be imprisoned under section 27 of the act in the absence of he made party by name or on behalf of societyfixing personal liability.

2.      State commission while staying the order of imprisonment in 2013 with condition to pay the decreetal amount did nothing to correct the error though this interim order continued from time to time. It was the State commission to decide there and then as to whether any order for jail can be passed against the society for non –compliance of the order

3.      National commission also did not interfere in the order passed below but did not specify whom to send to jail under section 27 of the act

4.      Under the circumstances Supreme Court suspended the order of the district forum to the extent of imprisonment of secretary of the society

5.      This is also observed that society has gone in liquidation and liquidator has been appointed, complainant is given liberty to take necessary steps to recover the decreetal amount as ordered by the district court in accordance with law.

As per the practice under law, in cases of suits/claims/complaints filed by the corporate,authorities  or units, they are to be filed through name and person authorized by the authority under the document of power of attorney to sign the documents etc. Further it needs to be supported by resolution passed in an individuals favour to deal with specific case by virtue of holding power of attorney from the authority. In the case above, nothing had been brought on record and case has not been filed through individual name. Secretary is an office and officer may change and the next man cannot be held responsible in his individual capacity for the deeds of his predecessor  

This is one case where consumer has run from pillar to post for obtaining an order in his favour and yet failed. There are numerous situations when consumer suffers left with no remedy at the end such as-

·         At times consumer forum does not have the jurisdiction to admit the case but case is admitted. This objection taken in the beginning is to be addressed first. But Case goes on till end  and finally it is dismissed for want of jurisdiction

·         At times forum issues notice again to the parties after order has been pronounced pointing out some mistake and re-opens the case whereas only a corrigendum can serve the purpose to correct the mistake

·         Appearance of proxy counsels without knowing the case or without file for taking adjournment is not discouraged by the consumer commissions   . Hon'ble Supreme court in the matter of Sanjay Kumar vs State Of Bihar & Anr decided on 28 January, 2014 wherein three –judge bench comprising Bench: B.S. Chauhan, J. Chelameswar, M.Y. Eqbal In Special Leave Petition (Crl.) No.9967 Of 2011 had ordered as hereunder ;

“In the instant case the counsel appearing in the court for the petitioner designated himself merely has a proxy counsel. The Advocate- on-record (for short AOR) had no courtesy to send, at least, a slip mentioning the name of the counsel who has to appear in the court. Thus, in such a fact-situation, we had no advantage even to know the name of the counsel who was appearing in the court.”

“In such a chaotic situation, any Arzi, Farzi,, half- baked lawyer under the label of proxy counsel a phrase not traceable under the Advocates Act, 1961 or under the Supreme Court Rules, 1966 etc., cannot be allowed to abuse and misuse the process of the court under a false impression that he has a right to waste public time without any authority to appear in the court, either from the litigant or from the AOR,(advocate on record) as in the instant case.’

Its high time now for the consumer commission to set right the procedure and especially when new act is coming soon with full force in operation

Dr Prem Lata

 

 

 

Previous

Next