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2019 DIGILAW 291 (HP)

Ajay Vohra v. Dila Ram

2019-03-18

P.S.RANA, SUNITA SHARMA, VIJAY PAL KHACHI

body2019
JUDGMENT P.S. Rana (R), President. - Present order shall dispose of revision petition filed by nonexecutant against order dated 21.02.2018 passed by Learned Executing Forum in Execution Petition No. 6-A/2015 titled Dila Ram v. Ajay Vohra Director of Accord Plantation Limited Unit of Blue Peak. Brief facts of matter: 2. Complainant Dila Ram filed consumer complaint No. 517/2003 against opposite party pleaded therein that opposite party launched scheme and invited consumers to invest money with opposite party with promise to pay higher rate of interest. It is pleaded that complainant invested a total sum of Rs. 110000/- (One lac ten thousand). It is further pleaded that on maturity complainant was entitled to sum of Rs. 220000/- (Two lac twenty thousand). It is further pleaded that opposite party did not refund the amount to the complainant as promised despite various demands. Learned District Forum disposed of Consumer Complaint No. 517 of 2003 on dated 20.07.2004 and ordered opposite party-finance company to refund the amount of Rs. 220000/- (Two lac twenty thousand) with interest @12% per annum with effect from the date of filing of complaint till actual payment is made. Learned District Forum further ordered that opposite party would pay Rs. 1000/- (One thousand) as litigation costs which would be paid within a period of forty five days from the date of receipt of copy of order. 3. Thereafter complainant filed Execution Application No. 8 of 2013 against Ajay Vohra Director of Accord Plantation Limited Unit of Blue Peak personally with the request to issue recovery certificate against the non executant and punish the non-executant under section 27 of Consumer Protection Act 1986. Learned Executing Forum on dated 07.01.2015 held that Execution Petition is not executable. Learned Executing Forum further ordered that Executant could seek fresh execution against the Guarantor/Director of the Company. 4. Executant Dila Ram filed M.A. No.917/2014 before H.P. State Consumer Commission and H.P. State Consumer Commission disposed of M.A. No.917/2014 on dated 01.01.2015 and State Commission directed the Executing Forum to dispose of Execution Petition expeditiously within three months from the date of receipt of copy of order. 5. Thereafter Executant filed fresh Execution Petition No. 6-A of 2015 on dated 23.02.2015 against Ajay Vohra personally in the capacity of Director of Accord Plantation Limited Unit of Blue Peak. 5. Thereafter Executant filed fresh Execution Petition No. 6-A of 2015 on dated 23.02.2015 against Ajay Vohra personally in the capacity of Director of Accord Plantation Limited Unit of Blue Peak. On dated 21.02.2018 Executant submitted before the learned Executing Forum that property of non-executant is situated in Jirakpur District SAS Nagar (Mohali) Punjab. Learned Executing Forum issued certificate for recovery of amount as arrears of land revenue under section 25 of Consumer Protection Act 1986 to Collector. Learned Executing Forum ordered that as and when amount would be received from the Collector concerned Executant would be informed accordingly. Learned Executing Forum consigned the Execution Petition to record room. 6. Feeling aggrieved against order dated 21.02.2018 passed by learned Executing Forum revisionist/nonexecutant Ajay Vohra Director of Accord Plantation Limited Unit of Blue Peak filed present revision petition before State Commission. 7. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully. 8. Following points arise for determination in present revision petition. 1. Whether revision petition filed by revisionist is liable to be accepted as mentioned in memorandum of grounds of revision petition and whether State Commission has powers to set aside or recall its earlier order dated 03.08.2006 passed in M.A. No.498/2006 under Consumer Protection Act 1986. 2. Final order. Findings upon point No.1 with reasons: 9. Submission of learned Advocate appearing on behalf of revisionist/non-executant that liquidation order of Accord Plantation Limited already stood passed by Punjab and Haryana High Court in Company Petition No.222 of 2003 and Execution Petition against Ajay Vohra Director of Accord Plantation Limited personally was not maintainable and on this ground revision petition be allowed is decided accordingly. On dated 03.08.2006 H.P. State Consumer Commission passed order in M.A. No. 498/2006 which is quoted in toto: 03.08.2006 ORDER M.A. No.498/2006 This is an application filed by Mr. Thakur Advocate alongwith copy of the order passed by the Learned Company Judge of the Punjab and Haryana High Court in Company Petition No.222/2003 whereby Official Liquidator has been appointed as Provisional Liquidator so far assets of the Accord Plantations Ltd. is concerned. Whereas it is admitted case of the parties that in the order passed by the State Commission in Original Complaint No.10/2000 amounts due and outstanding payable by Accord Plantation and the Companies are also included. Whereas it is admitted case of the parties that in the order passed by the State Commission in Original Complaint No.10/2000 amounts due and outstanding payable by Accord Plantation and the Companies are also included. As such this execution can''t proceed against Accord Plantation Ltd. In view of the above admitted position that Provisional Liquidator having been appointed qua Accord Plantation Ltd., as such so far as the prayer made in M.A. No.498/2006 to initiate the execution against said company i.e. Accord Plantation Company is concerned, the same is rejected, however it can continue only against its guarantors/Directors. This execution will however proceed in accordance with law, so far amount for recovery of Rs. 162000/- payable by companies other than Accord Plantations are concerned Mr. Sharma submitted that he will file necessary application for sale of the already attached property in terms of order dated 08.06.2006. List this case on 28.08.2006. Sd/- Sd/- Sd/- President Member Member 10. H.P. State Consumer Commission has specifically mentioned in a positive manner vide order dated 03.08.2006 that Execution Petition against the company i.e. Accord Plantation Limited would not continue. H.P. State Consumer Commission further ordered that Execution Petition would continue only against its Guarantor/Director. State Commission further ordered on dated 03.08.2006 that Execution would however proceed in accordance with law for recovery of Rs. 162000/- (One lac sixty two thousand). In view of direction of H.P. State Consumer Commission cited supra Executant filed fresh Execution petition against the Director of Accord Plantation Limited namely Shri Ajay Vohra personally. It is held that State Commission has held on dated 03.08.2006 in M.A. No. 498/2006 that execution proceedings against Guarantor/Director would proceed in accordance with law. Shri Ajay Vohra did not challenge order of H.P. State Consumer Commission dated 03.08.2006 passed in M.A. No. 498/2006 cited supra. Order dated 03.08.2006 passed by State Commission in M.A. No.498/2006 has attained stage of finality. It is well settled law that H.P. State Consumer Commission is not legally competent to review or recall its own earlier order. H.P. State Consumer Commission in its earlier order dated 03.08.2006 has held that execution petition against the Guarantor/Director would proceed in accordance with law. Admittedly present Execution Petition has not been filed against the Company i.e. Accord Plantation Limited but has been filed against Ajay Vohra personally in the capacity of Director of Company. See 2018 (2) CPJ 31 NC Mohd. Admittedly present Execution Petition has not been filed against the Company i.e. Accord Plantation Limited but has been filed against Ajay Vohra personally in the capacity of Director of Company. See 2018 (2) CPJ 31 NC Mohd. Shaffan vs. Kotak Mahindra Bank Ltd. & Anr. See 2011 (9) SCC 541 (Apex Court) titled Rajeev Hitendra Pathak & Ors. vs. Achyut Kashinath Karekar & Anr. See 1998 (2) CPC 374 NC titled New India Assurance Company Limited vs. M/s. Surya Credit Limited & Anr. See 2017 (1) CPR 705 NC titled Global Health Private Limited & Anr. v. Nisarg Shailesh Shah. 11. It is also proved on record that Learned Additional Sessions Judge (Central-01) Delhi in C.C. No.75/09 convicted Ajay Vohra and others under the SEBI Act 1992. It is proved on record that learned Additional Sessions Judge (Central-01) on dated 26.03.2010 sentenced Ajay Vohra for RI for 6 months and also imposed fine of Rs. 1000000/- (Ten lac) each upon accused No. 2 to 5. Learned Additional Sessions Judge further held that in default of payment of Rs. 1000000/- (Ten lac) each accused No. 2 to 5 would undergo SI for 3 months. It is proved on record that Criminal Appeal No.442 of 2010 was filed before the High Court of Delhi by Ajay Vohra & Ors. under the Securities and Exchange Board of India Act 1992 and same was dismissed by the Hon''ble High Court of Delhi on dated 29.01.2014. State Commission is of the opinion that final liquidator has been appointed by Punjab and Haryana High Court against the Accord Plantation Limited. 12. State Commission is of the opinion that Execution petition against Accord Plantation Limited could not continue but in view of direction of H.P. State Consumer Commission dated 03.08.2006 passed in M.A. No. 498/2006 execution proceedings against Guarantors/Directors personally would continue. In view of the fact that present Execution Petition has been filed personally against Ajay Vohra State Commission is of the opinion that order of learned Executing Forum is strictly in compliance of order of H.P. State Consumer Commission dated 03.08.2006 passed in M.A. No. 498/2006 cited supra. 13. In view of the fact that present Execution Petition has been filed personally against Ajay Vohra State Commission is of the opinion that order of learned Executing Forum is strictly in compliance of order of H.P. State Consumer Commission dated 03.08.2006 passed in M.A. No. 498/2006 cited supra. 13. Submission of learned Advocate appearing on behalf of non-revisionist/Executant that Execution petition against Ajay Vohra personally who is Director of Accord Plantation Limited is maintainable in view of direction of H.P. State Consumer Commission dated 03.08.2006 passed in M.A. No.498/2006 and on this ground revision petition be dismissed is decided accordingly. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to interfere in the order of learned Executing Forum in view of directions of H.P. State Consumer Commission dated 03.08.2006 passed in M.A. No.498/2006 that Execution petition against the Guarantors/Directors would continue. State Commission is of the opinion that State Commission is not legally competent to review or recall its own earlier order. Point No.1 is decided accordingly. Point No.2: Final Order 14. In view of findings upon point No.1 above revision petition is decided accordingly. It is further ordered that Learned Executing Forum shall seek the compliance report from concerned Collector under section 25(3) of Consumer Protection Act 1986. It is held that sections 25 and 27 of the Consumer Protection Act 1986 relating to execution were added in Consumer Protection Act 1986 w.e.f. 15.03.2003. It is held that sending of certificate for recovery of amount as arrears of land revenue to Ld. Collector is intermediatory process and Execution petition could not be consigned to record room during intermediatory process of Execution petition. 15. Order of learned Executing Forum that as and when amount would be received from the Collector concerned the Executant would be informed accordingly and order of Executing Forum that file after its due completion be consigned to room are set aside and Execution Petition No.6-A of 2015 is restored to its original number till the same is not fully satisfied by Ld. Executing Forum. It is held that it is the legal duty of Executing Forum to fully satisfy the Execution petition in accordance with law and Executing Forum is not legally competent to consign the Execution petition to record room in the intermediator process of Execution petition. 16. Executing Forum. It is held that it is the legal duty of Executing Forum to fully satisfy the Execution petition in accordance with law and Executing Forum is not legally competent to consign the Execution petition to record room in the intermediator process of Execution petition. 16. It is further ordered that after receipt of compliance report from concerned Collector learned Executing Forum will consign the Execution petition to record room. Order of H.P. State Consumer Commission dated 03.08.2006 announced in M.A. No. 498 of 2006 Annexure-A shall form part and parcel of order. 17. Order passed in the interest of general public and in the ends of justice keeping in view the spirit of Consumer Protection Act 1986 which is consumer oriented approach Act. Order of Ld. Executing Forum is modified accordingly. Files of learned Executing Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Revision petition is disposed of. Pending application(s) if any also disposed of.