Chapter: 7.1 Enforcement of orders

Enforcement of orders passed by Consumer Fora

Status as to execution of an order, post 2002 amendment of the Act:
The 2002 amendment enables the Consumer Forum to pass an interim order and provides that a Consumer Forum may ensure compliance of the order by attachment of property and sale if required, in case non- compliance of the order continues beyond 3 months. Further, an order passed by the Consumer Forum may be executed by certifying the amount due to the District Collector who shall proceed to recover the amount as arrears of land revenue.

Hon'ble Commission, Delhi has in fact referred to S. 27 of the Act in laudatory terms as follows:
Section 27 is thus the kingpin of consumer jurisdiction, which stands proudly apart from the ordinary and now notoriously tardy Civil process. Without the sanction of this Section perhaps, the Consumer Jurisdiction would only be a paper tiger lacking teeth altogether.'

While the State Commission has noted the stand of the District Forum that unless a 'stay' order is passed by the Superior Commission, mere filing of an appeal or revision of a petition does not prevent proceedings u.s 25 or u.s. 27, it has not adequately dwelt on this aspect, or on the provision of S. 24 which says that when an appeal is filed, the order of the lower authority is not final. It appears that the State Commission has noted the stand taken by the District Forum approvingly. When a District Forum passes an order against a doctor or say a manufacturer, dealer, trader, financial institution or insurance company granting compensation to a purchaser, hirer or insured in respect of defective goods or deficiency in service, quite often such firms/ bodies seek legal opinion on the scope of filing an appeal. In case legal opinion indicates that the order in question is erroneous and that there are reasonable chances of succeeding in an appeal, an appeal is generally filed. An appeal has to be preferred within a period of THIRTY DAYS of the order.

'DATE OF ORDER' MEANS DATE OF KNOWLEDGE OF ORDER'

As, many large organizations with multiple layers of decision-making are hard pressed for time, the first question relates to the time constraint prescribed u.s.15 of the Act.

The Hon'ble National Commission has held in the case of:
M/ S HINDUSTAN PAPER CORPORATION LTD.
PETITIONER V/S.M/S. DHIR COPY HOUSE AND ANR (RESPONDENT):
Revision Petition No.37 of 1992 and also in R.P.No.48 of 1992 that the date of the order referred to in section 15 of the Consumer Protection Act, 1986, means date of knowledge. The Hon'ble National Commission has followed the decision of the Supreme Court in the case of RAJA HARISHCHANDRA RAJ SINGH V/S. THE DEPUTY LAND ACQUISTION OFFECER, AIR, 1961 S C 1500 and in MADANLAL V/ S STATE OF U.P. &ORS AIR 1975 S. C. 2085.

After considering the question in detail, the National Commission accepted the contention of the appellant that the date of the order is the date of communication of the order. Date of the order:

National Commission has held in Union of India & Ors V/S Ramesh Kumar III (1995) CPJ 67 (NC) that 'date of the order' actually means date of communication of a certified copy of the carder Tin order is required to be annexed the said order.

The Supreme Court has held in Housing Board Colony, Welfare Association and Others (1995) 5S.C.C. 672 that the expression, 'date of Eke order' means the date on which a copy of the order was made available and the period of limitation prescribed with regard to filing an appeal shall be construed as commencing from the date of communication of the order in the manner laid down in the rules framed under the Act.

Date of the order for the purpose of compliance of the order:
In the event an order is passed directing a party to comply within a specified period from the date of the order, a similar question arises. Though there does not appear to be any discussion on this aspect, it appears to us that such an order is analogous to the one where limitation is to be counted from the date of the order. Further even if an order or operative part of the order is passed in open court it is arguable to say that a party aggrieved from such an order should have reasonable opportunity of examining the order to avail of expert advice and to prefer an appeal against the order. Thus we are of the view that 'date of the order' even with reference to compliance of the order has to be read as the date on which a certified copy of the order is served or posted to the party concerned.
 
Sufficient cause for condonation of delay
The expression 'sufficient cause' means genuine reasons on account of which appellant could not prefer an appeal within the stipulated time which enables the Commission to exercise judicial discretion while condoning delay.

State Commission Rajasthan has held in Rajasthen State Insurance and G.P.R. Department V/s Radhey Shyam Goyal (1992) I C.P.R. 275 (S.C., Raj) that it is incumbent upon the appellant to explain each day of default beyond the terminus line of the prescribed period of limitation. Further, the State Commission of Rajasthan has held in the above mentioned case that even a much larger body like the State is no different from a private litigant for the purpose of condonation of delay against the limitation bar.

Supreme Court had observed in Collector, Land Acquisition, Anantnag V/s Mst. Kataji and others AIR 1987 S.C. 1353 that. while considering condonation of delay, a Court has to keep in mind that a 'State' represents public interest and delay may be condoned in appropriate cases in an even handed manner. Thus so far as consumer Jurisdiction is concerned, the 'State' does not appear to enjoy any special status or privileges.

Further, the National Commission has held in R.S.R.T.C. V/s Dunger Chand, J (1995) CPJ 37 (NC) that when the State Commission condones delay at its discretion, there is no scope for interference by the National Commission. The National Commission has also held in National Insurance Co. Ltd. V/s. M/s. Venus Traders & Anr 1994 (1) CPR 468 (NC) that, limitation prescribed under the Carriers Act is not applicable to complaints filed under the Consumer Protection Act.

Right to appeal is unfettered
The National Commission has held in The New India Assurance Co. Ltd. V/s. The Sangamner Bhag Sahakari Sakhar Karkhana Ltd., R.P. No. 723 of 1994 that the statutory right of appeal which is unconditional cannot be abridged by the imposition of any condition as regards payment of costs or deposit of the amount payable under the order appealed against. With the above observational the National Commission set aside the impugned order of the State Commission, Maharashtra, requiring the petitioner to deposit the decretal amount payable by him under the order of the District Forum before the State Commission for payment to the complainant as a precondition for admission of appeal. However, 2002 amendment has incorporated admission procedure, as set out in S. 19A even in respect of appeal. This provision enables, by necessary implication, disposal of an appeal at the stage of admission itself.

Despite filing an appeal, appellants are frequently faced with proceedings for execution of the order appealed against and also penal proceedings even in cases where appeals are admitted by a superior authority.

Whether an appeal is maintainable in respect of orders passed under Sections 27?
The Consumer Protection Act does not provide for an appeal against an order passed by a redressal agency under Section 25 of the Act. However, by incorporating S. 27A, the 2002 amendment enables the affected party to prefer an appeal even in respect of an order passed u .s 27 of the Act.

State Commission, Delhi has held in MRS. SUMAN LATA vs. ANAND CONSTRUCTION (DELHI) PVT. LTD, .II- 1993 CPJ 352, as follows:

'It is relevant to mention that, under section 27, sentence of fine or imprisonment or both can be awarded by courts under the Act. It is well settled that the Commission or Forum can discover from the language of an enactment the true intention of the legislature. Normally the court has no power to give to the language of an Act either a wider or a narrower meaning. So the Commission is of the opinion that no appeal is maintainable against the order of the District Forum passed under section 27 of the Act to the State Commission.'

Legal aspects and practical difficulties:
Appellants fear that, in case decretal amount is paid to the complainant, even if the appellant succeeds before the State Commission, recovery of the amount will not be easy. While penal provision acts as a deterrent for the traders, manufacturers, dealers, banks and insurance companies as it holds out a threat for their well established reputation, the effect of proceedings u.s. 25 & 27 is much less in the case of ordinary consumers. Considering the above, there is a need to evolve and lay down appropriate rules for depositing the whole or a part of the decretal amount with the concerned Consumer Forum while preferring an appeal against the said order.

Section 24 that deals with finality of the order of the District Forum provides in effect that an order of the lower authority is final if no appeal is preferred against such 'order' under the provision of the Act.

Section 25 deals with enforcement of the order by a District Forum, State Commission or National Commission. This section provides that every order made by the Forum, State Commission and National Commission may be enforced as if it is a decree of a Civil Court in a suit. In the event Consumer Courts are unable to enforce the order, the section provides that such order may be sent office of the opponent company is situated. It is important to note that the section enables Consumer Courts to enforce every order passed by them. It is also relevant to note that the Act confers summary jurisdiction and that Consumer Courts have the obligation of enforcing their own orders if they are satisfied that the opposite party has failed to comply with their orders without a valid reason.

Section 27 is a penal provision which provides for imprisonment for minimum period of one month but which may be extended upto THREE years and / or with a fine in the range of Rupees TWO THOUSAND to Rs. TEN THOUSAND. This raises a very important question, whether Section 27 of COPRA can be invoked without resorting to Section 25 and whether Section 25 and Section 27 can be invoked simultaneously. When we examine the scheme of the Act, it appears that penal provision would be invoked when the opposite party neglects to comply with the order of Consumer Forum. In the event a notice / summons is issued, calling upon the opposite party to comply with the order, penal provision may logically follow upon failure of opposite party to comply with the order if no reasonable ground is made out for non-compliance with the Consumer Forum despite notice. Further the principles of natural justice require that the opposite party should be given an opportunity to say why the penal provisions should not be invoked against him.

Grant of stay orders
The State Commission, Delhi has held in an appeal filed by M/s Gupta Enterprises (In A. 50/91 Complainant: Mrs. Shakuntala Gupta) that, enforcement of an order of the District Forum can be stayed against furnishing Bank Guarantee to the District Forum.

Though the Consumer Protection Act does not contain any specific provision enabling Consumer Courts to grant stay orders, these are often granted. Generally Commissions (State Commission or National Commission) do not grant stay orders against a money decree passed by the lower courts unless it is shown that execution of the improper order will result in gross miscarriage of justice or substantial loss or damage to the appellant or petitioner, or security has been given by appellant for due performance. It is relevant to note that under order 41 Rule 5 of CPC, an appeal does not operate as a stay of proceedings under a decree or order appealed against except so far as the Appellate Curt may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree, but the Appellate Court may for sufficient cause order stay of execution of such decree. Quite often the appellant is called upon to deposit the decretal amount, in full or in part as a condition for grant of stay. We feel such an order is just and equitable to both the parties.

2002 Amendment requires that the appellant has to deposit 50% of the amount awarded in a money decree or Rs. 25000/- in case of an appeal to the State Commission, Rs. 35,000/- in case of an appeal to the National Commission or Rs. 50,000/- in case of an appeal to Supreme Court, whichever is lesser, while preferring an appeal. Thus, the impugned order is stayed automatically till the matter is finally disposed of.

Compliance of the order of lower fora and appeals
Prior to the 1993 amendment, penal provision could be invoked only against a trader or a person who fails to comply with the order of Consumer Court. But by virtue of 1993 amendment penal provision can be invoked even against a complainant. The revised section 27 provides as follow:

'Where a 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 the 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 thousand rupees but which may extend to ten thousand rupees or with both provided that the District Forum, the State Commission or the National Commission as the case may be, may if it is satisfied that the circumstances of any case so require impose a sentence of imprisonment or fine or both, for a term lesser than the minimum term and an amount lesser than the minimum amount specified in this section.

Consequent to the above, in the event a trader, manufacturer, bank, insurance company or a professional like a doctor or lawyer complies with the order of the lower fora prior to or subsequent to filing of an appeal and if such an appellant succeeds in the appeal or Revision Petition, the same can be enforced against the complainant in the same manner in which an order of the Consumer Forum is enforced against the opposite party. In such an event, the appellant will have to initiate proceedings u.s 27 of the Act in the event the complainant fails to comply with the order of the Superior Authority / Tribunal (State Commission or National Commission) where the order of the lower authority is challenged.

2002 Amendment has empowered the Consumer Forum to pass interim orders and provides that a Consumer Forum may ensure compliance of the order by attachment of property and sale if required, in case non- compliance of the order continues beyond 3 months. Further, an order passed by the Consumer Forum may be executed by certifying the amount due to the District Collector who shall proceed to recover the amount as arrears of land revenue.

Further, full bench of Supreme Court considered constitutional validity of Consumer protection Act, 1986 in State of Karnataka v. Vishwabharathi House Building Co. Op. Society & Ors., I(2003) CPJ 1 (SC). The apex court interalia held as follows (abridged):
1. We, therefore, are clearly of the opinion that the said Act cannot be said to be unconstitutional.
2. A bare perusal of S. 25 of the Act clearly shows that thereby a legal fiction has been created to the effect that an order made by District Forum, State Commission or National Commission will be deemed to be a decree or order made by Civil Court in a suit. Legal fiction so created has a specific purpose, i.e., for the purpose of execution of the order passed by the Forum or Commission. Only in the event the Forum or Commission is unable to execute its Order, the same may be sent to Civil Court for its execution. The High Court (Karnataka High Court) was therefore not correct to hold that in each and every case the order passed by Forum/ Commission is required to be sent to Civil Court for its execution.
3. Furthermore, S.27 of the Act also confers additional powers upon the Forum/Commission to execute its order. The said provision is akin to O 39 R 2A of CPC or the provisions of the Contempt Courts Act or S. 51 read with O. 21 R 37 of CPC. Section 25 should be read in conjunction with S. 27. A parliamentary statute indisputably can create a tribunal and might say that non-compliance of its order would be punishable by way of imprisonment or fine, which can be in addition to any other mode of recovery.
4. It is well settled that the cardinal principle of interpretation of statute is that Courts or Tribunals must be held to possess power to execute their own order.
5. It is also well settled that a statutory Tribunal which has been conferred with the power to adjudicate a dispute and pass necessary order has also the power to implement its order. Further, the Act which is a self contained Code, even if it has not been specifically spelt out, must be deemed to have been conferred upon the tribunal all the powers in order to make its order effective.
6.    In Savitri v. Gobin Singh Rawat, AIR 1986 SC 984, it has been held as follows: "... Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim 'ubi aliquid cnceditur conceditur ed id since qua res ipsa issue non protest' (where anything is conceded there is conceded also anything without which the thing itself cannot exist)
7. In regard to construction of S. 25, plain reading of S. 25 shows that Forum/Commission is entitled to execute its order. It is now well settled interpretation of statute that plain language of the statute employed in a section must be given its ordinary meaning.