DUNCANS INDUSTRIES LIMITED Vs. BISWAJIT ROY

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution of India assailing the order dated April 13, 2009 passed by the State Consumer Disputes Redressal Commission, West Bengal in Case No. RC/ 2009/13 and the order dated June 19,2009 passed by the same Foruum in Execution Case No. 106/2008. The petitioner is a sick industrial company within the meaning of the Sick Industrial Companies (Special Provisions) Act, 1985 and has been registered before the Board for Industrial and Financial Reconstruction (hereinafter referred to as the "BIFR"). The petitioner carries on business for manufacture and sale of fertilizer, cultivation, process and sale of tea. The petitioner has been declared as sick industrial company under the provisions of SICA by the order dated February 21, 2007 of the BIFR. The decree holder/O.P. herein got a decree from the District Consumer Disputes Redressal Forum for the recovery of the sum of Rupees one lakh together with interest. The decree holder/O.P. herein put the decree in execution wherein the Judgment Debtor/petitioner herein appeared and prayed for instalments for payment of the decreetal dues. The Executing Forum after hearing both sides allowed the prayer for instalments. The DHR/O.P. herein being aggrieved filed a revisional application before the State Consumer Disputes Redressal Commission where the application was allowed and the order of the Executing Forum granting instalments was set aside on the ground that the Executing Court could not go behind the decree. The judgment debtor/petitioner herein preferred appeal before the National Consumer Disputes Redressal Commission where the appeal was dismissed. Now the judgment debtor i.e. the petitioner herein has filed the instant application under Article 227 of the Constitution of India praying for quashing of the execution proceeding pending before the learned Executing Forum.

(2.) Mr. Mitra appearing on behalf of the petitioner submits that under Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 (SICA) without the consent of the Board (BIFR) no recovery proceeding is maintainable and no money can be recovered from a sick industry. Mr. Mitra further submits that under Section 25(3) of the Consumer Protection Act any claim for money is to be recovered as arrears of land revenue by collector by initiating a proceeding. Mr. Mitra contends that in the instant case the claim is for money and it is governed by Section 25(3) of the Consumer Protection Act and the Executing Forum has no jurisdiction to issue warrant of arrest for the recovery of the money.

(3.) Mr. Basu appearing on behalf of the O.Ps. submits that when the contention of the judgment debtor regarding instalments was turned down by the National Consumer Disputes Redressal Commission, the said order attained its finality under Section 24 of the Consumer Protection Act and it cannot be reopened in this application under Article 227 of the Constitution of India. Mr. Basu in this connection has referred to the provisions contained in Section 23 and submits that appeal would lie to the Hon'ble Apex Court against the decision of the National Consumer Disputes Redressal Commission. Mr. Basu contends that the application under Article 227 of the Constitution of India is not maintainable. Mr. Basu has referred to and cited a decision reported in AIR 1997 Delhi 182 [Ravi Kant & Ors. v. National Consumer Disputes Redressal Commission & Ors.] and submits that the definition of person as occurring in Section 2(m) of the Consumer Protection Act will include company. Mr. Basu contends that there was a direction from the AAIFR upon the JDR to submit a rehabilitation Scheme before the BIFR and it is not known what scheme has been formulated and under such circumstances there is no scope of interference within the scope or ambit of Article 227 of the Constitution of India. As regards the provision contained in Section 22(1) SICA, Mr. Basu submits that the JDR can approach the BIFR for suspension of order for realization of money. Mr. Basu has referred to and cited a decision reported in 2001 Company Cases page 401 [Deepak Insulated Cable Corporation Ltd. v. Union of India & Ors.] and submits that the claim for realization of money is maintainable and the provision contained in Section 22(1) SICA is not attracted. Mr. Basu submits that penal action under Section 27 of the Consumer Protection Act can well be initiated and a complaint in this regard is not a suit. Mr. Basu has referred to and cited the decisions reported in 2007(136) Company Cases 739 (Madras) [S. Ragavachari v. V. S. Narayanan & Anr.]; 2007 CPJ 353 (NC) [Mahesh Chandra Sharma v. Modern Threads (India) Ltd.]; 2008(5) SCC 339 [Bihar Finance Service House Construction Co-operative Society Ltd. v. Gautam Goswami & Ors.]; AIR 2000 SC 926 [M/s. BSI Ltd. & Anr. v. Gift Holdings Pvt. Ltd. &Anr.]; and SC (Suppl) 2003(2) CHN 179 [State of Karnataka v. Vishwabharathi House Building Co-op. Society & Ors.].