9911796707
TMI Blog2006 (8) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... ereinafter referred to as 'the District Forum') for recovery of money and damages by respondent No. 1. The same was allowed against the petitioner by an ex parte order of the District Forum. (b)Respondent No. 1 filed a penalty petition under section 27 of the Act before the District Forum. Section 27 of the Act reads as follows : "27. Penalties.-(1) 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 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: (2) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up of the petitioner-company and appointing the official liquidator. (d)The Tribunal below failed to appreciate that the judgment of the National Commission in Ravikant v. Veena Bhatnagar [1996] CPJ 260 (NC) the National Commission is unequivocally in favour of the petitioner. The National Commission in Ravikant's case (supra) has held that no proceedings against the company after the appointment of a provisional liquidator can be commenced except by the leave of the court. However, if any proceedings are pending on such date these can continue to the date when winding up orders are passed by the court. Therefore, no proceedings under section 27 of the Act could have either commenced or continued after 5-12-2000, when the Calcutta High Court passed orders winding up the petitioner-company and appointing an official liquidator. (e)The Tribunal, below failed to appreciate that under section 27 of the Act a person/trader can be penalized only for wilful default in complying with the orders of the District Forum. Once the High Court of Calcutta ordered the winding up, the petitioner-company is no longer in control of its affairs, monies or assets. It cannot disburse any amount and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. ****** (g)No appeal or petition is maintainable under the Act against the orders passed by the State Commission under section 17(1)(b) of the Act to the National Commission. (h)The Act as it stood when the impugned order was passed on November 10, 2002, did not specifically provide for an appeal against the order passed under section 27 of the Act. Therefore, the only available remedy to the petitioner against the order passed under section 27 of the Act, would have been an appeal under section 15 of the Act. As the respondent has erroneously re-registered the appeal filed by the petitioner under section 15 as a petition under section 17(1)(b) of the Act, the petitioner does not have any remedy by approaching the National Commission. 4. Learned counsel for the respondent submitted as follows : (a)The present writ petition has no merit in the light of the decision of this Court in Lunar Diamonds v. Consumer Disputes Redressal Forum [WP(C) No. 4383 of 1999 and C.M. No. 8432 of 1999, dated 8-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs under section 27 of the Act. Thus, this plea of learned counsel for the petitioner that a winding up order bars proceedings under section 27 of the Act has no substance. 6. Learned counsel for the petitioner has relied upon the judgment of the National Commission in the case of Ravikant (supra) to submit that no proceedings against a company under section 27 of the Act after the appointment of the provisional liquidator can be commenced except by the leave of the court. The relevant portion of the judgment reads as follows : "Admittedly, no winding up order has been passed of the two companies. The State Commission considered the provisions of section 446 of the Companies Act and held in our view rightly that from the reading of sub-section (1) of section 446 of the Companies Act it is evident that no proceedings against a company after the appointment of a provisional liquidator can be commenced except by the leave of the court. However, if any proceedings are pending on such date these can continue till the date when winding up order are passed by the court. The proceedings before the State Commission thus could continue in spite of the fact that a provisional liquidator has ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
