Shri Abhay Kumar Singh vs Shri Tushar Dhananjay Mandlekar on 28 October, 2010

State Consumer Disputes Redressal Commission

Shri Abhay Kumar Singh vs Shri Tushar Dhananjay Mandlekar on 28 October, 2010

CONSUMER DISPUTES REDRESSAL COMM

CONSUMER DISPUTES REDRESSAL COMMISSION

MAHARASTHRA STATE

(MATTER FROM
CIRCUIT BENCH, NAGPUR)

Suo Motu
R.P.No.2010/35 Date of Filing: 28/10/2010

In C.C.no.09/559

District Forum: Nagpur

Date of Order: 28/10/2010

1.

Shri Abhay Kumar Singh, Appellants s/o Late Shri Ram Niwas Singh,
(Org. Opp.parties) M/s. SBI Cards and Payment Services Pvt. Ltd., At 11, Parrliament Street, New
Delhi.

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 Shri Abhay Kumar Singh vs Shri Tushar Dhananjay Mandlekar on 28 October, 2010

2. Shri Milind Deshpande, Manager, M/s. GE Money Financial Services Ltd., Sanskriti Sankul,
Second Floor, Jhansi Rani Chowk, Sitabadi, Nagpur.

3. Shri Kunal Sahani, Propreitor, M/s. Sai Financial Services Ltd., Chaudhary Cutpiece Centre,
Swami Samarth Sankul, Gokul Peth, Nagpur V/s.

Shri Tushar Dhananjay Mandlekar, Respondent S/o Shri Dhananjay

Mandlekar, (Org.Complainant) R/at-L-37, Yashwant Nagar, Nagpur.

Quorum: Justice Mr.S.B.Mhase, Honble President Mr.P.N.Kashalkar, Honble Judicial Member

Smt.S.P.Lale, Honble Member.

Present: Adv.Mr.J.M.Baphna for Appellants.

Respondent in person.

:-ORDER-:

Per Justice Mr.S.B.Mhase, Honble President:

This suo motu revision petition taking cognizance of the an order passed by District Consumer
Disputes Redressal Forum, Nagpur in execution petition no.10/72 on 09/08/2010. By this order
District Consumer Disputes Redressal Forum has granted exemption for dated 09/08/2010 to
revision petitioner no.1 to appear before District Consumer Disputes Redressal Forum.

This order is objected mainly on the ground that revision petitioner no.1 was not initially party to
the complaint no.09/559 and that an amount of `7,000/- which was directed to be paid in said
complaint, has been already paid, and thus, there was no cause for filing execution application

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 Shri Abhay Kumar Singh vs Shri Tushar Dhananjay Mandlekar on 28 October, 2010

under Section 27 of Consumer Protection Act, 1986.

In complaint no.09/559 opponent no.1 was/is described as, SBI Card and Payment Services Pvt.
Ltd., SBI legal head office, 11 Sansad Marg, New Delhi-110001. In addition to opponent no.1 there
were two other opponents in the said complaint. The said complaint was decided on 29/12/2009
and it was directed to the opponent in the said complaint that towards credit card in question no
amount should be claimed and recovered and by way of mental harassment `5,000/- were granted
to the complainant and cost of `2,000/- was also granted. It is to be noted that though it is directed
that said amount shall be paid within period of 30 days. There was/is no further penal interest
charged in case of laps of said period of 30 days. Therefore, ultimate payment which was/is to be
given and to be paid under the said order was/is `7,000/-. It is to be noted that while filing such
application under Section 27 name of the revision petitioner no.1/Abhay Kumar Singh has shown as
Chief Executive, SBI Card and Payment Services Pvt. Ltd.. However in the complaint this Abhay
Kumar Singh was/is not shown as opponent and/or representative of opponent no1. Complaint was
filed as against the private limited company only and in complaint it has not stated as to who should
represent the said opponent. Therefore, grievance of the revision petitioner was/is that he was not
party to the said proceedings and it is an error on the part of the complainant to add him directly as
a party in the execution application. We find substance in the said contention. Therefore, it was an
error on the part of the complainant to join Abhay Kumar Singh directly as party to the criminal
complaint.

In fact, Abhay Kumar Singh was not party to the said proceeding. In respect of corporate bodies or
co-operative societies whenever complaint is filed under Section 27 of Consumer Protection Act,
1986 the opponents are required to follow the procedure as laid down under Section 305 of Cr. P.C.
and the same view has been taken by the State Commission in case of Revision Petition
no.60//2010, M/s. Kesari Tours Private Ltd., V/s. Mr.Harishchandra Babulal Daspute decided on
06/05/201. The application under Section 27 should have been filed only as against the SBI Card
and Payment Services Pvt. Ltd and two others as were shown as parties in the complaint and the
said private limited company would have followed Section 305 of Cr.P.C. and nominated its
representative to represent in said proceeding. Therefore, it is not necessary in each and every case
the Chief Executive Officer of the said company or corporate body shall appear before Consumer
Fora. It is further to be noted that in respect of corporate body, under these circumstances the
punishment of imprisonment cannot be imposed as against representative nominated under Section
305 Cr.P.C. Only punishment of penalty can be imposed and that too not against the person, who
represented said body but it will be said punishment against said corporate body and Forum has
overlooked this provision and committed an error in directing Abhay Kumar Singh to remain
present before District Consumer Disputes Redressal Forum.

Apart from this, if it is factually correct that on 25/03/2009 the cheque of `7000/- has been given
by the opponents to the complainant, then the monetary claim as per decision of complaint no.
09/559 is satisfied and application under Section 27 cannot be filed. The so called injunction not to
recover any amount will operate in respect of amount which are claimed and tried to be recovered
from the opponents for period prior to filing of complaint i.e. any amount claimed by the opponent
for a period prior to filing of complaint cannot be recovered by opponent. But if said credit card is

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 Shri Abhay Kumar Singh vs Shri Tushar Dhananjay Mandlekar on 28 October, 2010

being used during the pendency of the complaint and/or after the decision of the complaint,
amounts which are due on the said credit card, can be recovered by the opponent no.1. The
execution application simply states that said order i.e. of injunction is not obeyed, however, the
amount which can be claimed on the basis of bills for the period subsequent to filing of complaint
cannot be recovered. However, the complainant nowhere states that amounts reflected in the said
bill were for period prior to the filing of complaint. Therefore, in absence of such statement, it is an
error to proceed in the execution petition and especially in the facts and circumstances when the
amount of `7,000/- has been paid. Therefore, we find that District Consumer Disputes Redressal
Forum is proceeded with an execution application in an arbitrary manner without following the
procedure. Therefore, District Consumer Disputes Redressal Forum is hereby directed that District
Consumer Disputes Redressal Forum shall find out whether the amount which respondents are
trying to recover on the basis of SBI card are for the period subsequent to the filing of complaint and
if those amount are subsequent to the filing of complaint, they cannot be a subject matter of the
injunction. If it is only found that those amounts are of period prior to the filing of complaint and in
spite of injunction, the revision petitioners are trying to recover it, then and then only District
Consumer Disputes Redressal Forum can proceed for execution procedure as laid down under
Section 27 for violation of injunction granted in the main complaint. However, prima-facie we do
not find any such contention raised in the execution petition. Said clarification may be asked from
the complainant. Apart from that opponents/revision petitioners are hereby directed to follow the
procedure laid down under Section 305 of Cr.P.C only if, it is found that the execution can proceed
for violation of the injunction order. We further direct that if it is found that there is no violation of
injunction order and amount of `7,000/- has been paid, then District Consumer Disputes Redressal
Forum shall close down the execution. District Consumer Disputes Redressal Forum can proceed in
the execution only if it is noticed that amounts which are claimed by opponents are related to the
period prior to the filing of the complaint. In that event opponent no.1-revision petitioner shall
follow the procedure as laid down under Section 305 of Cr.P.C. The revision petitioner nos. 2 and 3
were already parties to the original proceedings and they have been made parties to the execution
petition also and therefore, there is no difficulty so far as the opponent nos. 2 and 3 are concerned.
We make it clear that the procedure which have been followed by the District Consumer Disputes
Redressal Forum is not in consonance with the procedure which we have laid down in case
no.A.No.09/1190 Amir Ali Tharani V/s. Rajesh Sukhtankar and suo motu revision petition no.10/35
decided on 27/09/2010 . Therefore, District Consumer Disputes Redressal Forum is directed to
channelize the procedure in the light of the judgments which are circulated to them. Hence, we pass
the following order:-

:-ORDER-:

1. Suo motu revision petition no.10/35 stands allowed.

2. District Consumer Disputes Redressal Forum shall find out as to whether the amount of
`7,000/- has been received by complainant. The District Consumer Disputes Redressal Forum shall
obtain particulars of bills which are being recovered by opponent on the basis of use of credit card

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 Shri Abhay Kumar Singh vs Shri Tushar Dhananjay Mandlekar on 28 October, 2010

and shall obtain particulars from complainant in respect of use of credit card. If it is found that the
said SBI credit card was/is used by complainant to purchase goods in the market or otherwise for a
period subsequent to the date of institution of complaint, the application under Section 27 be
dismissed. Said execution application may proceed only if the complainant satisfies prima-facie that
the recovery being carried out by opponent company is for a period prior to filing of original
complaint only. The District Consumer Disputes Redressal Forum shall keep in mind provisions of
Section 305 Cr.P.C. and implement them as observed in the order, in case original opponent no.1
shall follow procedure as stated in Section 305 Cr.P.C.

3. Parties are left to bear their own costs.

4. Copies of the order herein be furnished to the parties as per rule.

(S.P.Lale) (P.N.Kashalkar) (S.B.Mhase) Member Judicial Member

President Nbh

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