THE HON'BLE SMT JUSTICE T.MEENA KUMARI & THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY WRIT PETITION NO:24533 OF 2010 DATED:5.10.2010 Between: M/s Maytas Properties Ltd. .....PETITIONER AND A.P.State Consumer Disputes Reddressal Commission & others. .....RESPONDENTS This Court made the following : THE HON'BLE SMT JUSTICE T.MEENA KUMARI & THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY WRIT PETITION NO:24533 OF 2010 ORDER: ( Per the Hon’ble Smt. Justice T.Meena Kumari) This writ petition is filed by the petitioner seeking to declare that the proceedings in E.A.No:12 of2010 in C.C.No:30 of 2009 on the file of the 1st Respondent-Commission, filed under section 27 of the Consumer Protection Act, 1986 as not properly instituted and as not maintainable and also declare that a resort to the provisions of section 27 of the Consumer Protection Act 1986 cannot be made directly for the enforcement of any order passed by the Consumer Forum and to dismiss E.A.12 of 2010 in C.C.No:30 of2009. The grievance of the petitioner is that due to the unavoidable circumstances and because of the orders of the Courts, the Hill County Project could not be completed in time and the flat could not be delivered to the 2nd respondent within the stipulated time, as a result of which, the 2nd respondent filed C.C.30 of 2009 before the 1st respondent-Commission and the 1st respondent-Commission passed an order on 30.4.2010 directing the petitioner to pay an amount of Rs.63,37,984/- with interest at 12% p.a. from 4.8.2008 till the date of realization together with compensation of Rs.5,00,000/- and costs of Rs.5,000/-. Challenging the said order, the petitioner preferred an appeal in F.A.No:189 of 2010 before the National Commission and the said F.A was partly allowed setting aside the order of penalty of Rs.5,00,000/-. Aggrieved by the order of the National Commission confirming the order of the State Commission, the petitioner preferred S.L.P.26256 of 2010 before the Supreme Court and the said S.L.P was dismissed on 27.9.2010 without granting leave. While so, the 2nd respondent filed a penalty petition in E.A.No:12 of 2010 purportedly under section 27 of the Consumer Protection Act. It is the further grievance of the petitioner that the right of seeking enforcement of the order of the Commission is provided under Section 25 of the Act and without filing the petition under the said Provision the 2nd respondent has directly filed the penalty petition under Section 27 of the Act. The petitioner appeared through an Advocate and tendered a counter affidavit along with a petition in I.A.No:2125 of 2010 before the State Commission challenging the maintainability of the execution petition under Section 27 of the Act. The 2nd respondent also filed I.A.No:1262 of 2010 seeking to implead the Directors of the petitioner-company in their individual capacity and a counter was filed by the petitioner in that regard contending that no person who is not a party to the original order can be added in an execution petition. While adjourning the matter to 1.10.2010, the State Commission passed a docket order on 20.9.2010 issuing a Non Bailable Warrant against the petitioner. Having aggrieved by the same, the present writ petition is filed by the petitioner. Heard the learned counsel. It is to be noted that the petition in I.A.No:2125 of 2010 filed by the petitioner challenging the maintainability of the execution petition under Section 27 of the Act and the petition in I.A.No:1262 of 2010 filed by the 2nd respondent seeking to implead the Directors of the petitioner-company in their individual capacity, are pending before the State Commission and at this stage of the proceedings, the order under challenge has been passed by the State Commission. It is contended by the learned Counsel for the petitioner that without filing an application under section 25 of the Act, the petition filed by the 2nd respondent in E.A.No:12 of 2010 under section 27 of the Act, is not maintainable and therefore, the petitioner filed an application in I.A.No.2125 of 2010 raising the question of maintainability and pending adjudication of such issue, the order passed by the State Commission, though the petitioner is represented through the Counsel, is not sustainable under law. In view of the pendency of the E.A and the I.A filed by the petitioner as to the maintainability of the E.A under section 27 of the Act and the I.A filed by the 2nd respondent seeking to implead the Directors of the petitioner company in their individual capacity, we feel that the findings, if any on these aspects may become subjudice and apart from that, it may cause prejudice to either of the parties. But, however, in view of the fact that non-bailable warrant has been issued against the petitioner, though the petitioner is represented by the Advocate, it is to be examined as to whether the order impugned herein is sustainable under law. In this regard, it is relevant to go through the provisions of Section 27 (2) of the Act, which reads as under: “Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the District Forum or the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of the First Class for the trial of offences under this Act, and on such conferment of powers, the District Forum or the State Commission or the National Commission, as the case may be, on whom the powers are so conferred, shall be deemed to be a Judicial Magistrate of the First Class for the purpose of the Code of Criminal Procedure, 1973 (2 of 1974).” In the light of the above provisions, even assuming that the 1st respondent-Commission can be construed as a Judicial Magistrate of First Class, it is not known as to why the 1st respondent-Commission has failed to assign the reasons for issuing the N.B.W in consonance with the provisions of Section 87 Cr.P.C., which confers powers to issue a warrant in lieu, or in addition to summons. Irrespective of the fact as to whether the order impugned herein, amounts to contravention of the provisions of section 87 Cr.P.C or not, keeping in view the nature of the proceedings before the 1st respondent-Commission as well as its stage and in view of the principles of natural justice, it is just and proper to stay the execution of the N.B.W against the petitioner while directing the 1st respondent- Commission to dispose of the E.A and its connected I.As., to put a quietus to the litigation. At this stage, the learned Counsel for the petitioner sought liberty to raise all the contentions that were urged in this writ petition, before the 1st respondent-Commission. Accordingly, this writ petition is disposed of directing the 1st respondent to dispose of the E.A and its connected I.As pending before it within a period of six weeks from the date of receipt of a copy of this order. However, it is made clear that the execution of the N.B.W issued against the petitioner shall be stayed. The petitioner is at liberty to raise all the contentions that were urged in this writ petition, before the 1st respondent-Commission. ___________________ Justice T.Meena Kumari ___________________ Justice G.V.Seethapathy Date:5.10.2010. nn THE HON'BLE SMT JUSTICE T.MEENA KUMARI & THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY WRIT PETITION NO:24533 OF 2010 (Order of the Division Bench delivered by Smt.Justice T.Meena Kumari) DATED:5.10.2010