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TMI Blog2002 (8) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... 02 (although in the Cause Title the date of the impugned order has been shown as 23-4-2002) passed by the learned District Consumer Disputes Redressal Forum (hereinafter referred to as "Forum"), South 24 Parganas arising out of Execution Case No. 19 of 2001. The C.O. No. 1238 of 2002 was directed against the impugned order No. 14 dated 23-4-2002 passed by the said Forum arising out of Execution Case No. 18 of 2001. The C.O. No. 1259 of 2002 was directed against the impugned order No. 9 dated 23-4-2002 passed by the learned Forum arising out of Execution Case No. 59 of 2001. 3 . It appears from the record that the O.P. No. 1 was a depositor with the O.P. No. 2 and it was alleged before the Forum by the O.P. No. 1 that the O.P. No. 2 was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned threatening the present petitioner qua Managing Director to comply with the earlier order passed by the Forum. 4. At the very outset when the revisional applications have been taken up for consideration the question of maintainability of these revisional applications has been challenged by the O.P. No. 1 and accordingly the maintainability point of these revisional applications has been taken up for consideration. 5. Mr. Protik Prakash Banerjee, the learned counsel appearing for the petitioner has taken me through the provisions of section 446 of the Companies Act, 1956. He submits further that the present petitioner is not a company and he was only the erstwhile Managing Director of the O.P. No. 2, Mr. Banerjee has also taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l under the Consumer Protection Act, the application under article 227 of the Constitution is maintainable against the order impugned. Mr. Banerjee has also referred to the ratio decided in the case of Whirlpool Corporation v. Registrar of Trade Marks AIR 1999 SC 22 in which it was inter alia held that the existence of alternative remedy is not a constitutional bar to the High Court s jurisdiction under Article 226 of the Constitution. It was also held by the Hon ble Apex Court in that case that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. 7. Mr. Probal Kr. Mukherjee, the learned counsel appearing for the O.P. No. 1 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed the appeal filed and whereupon the depositor approached District Forum under section 27(1) of the Consumer Protection Act, 1986 by filing penalty petition. The second category of cases are those where the depositor filed a penalty petition before the District Forum for implementation of the order in consumer dispute case and there the petitioner did not approach the State Commission which ( sic ) the Appellate Forum. The third category of cases are those where the orders of the Appellate Forum are challenged by the petitioner. One of the points for consideration in that case was whether the provisions of Reserve Bank of India Act and the Companies Act oust the jurisdiction of the District Forum/State Commission to give redressal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first. The provisions of section 446 of the Companies Act reads as below : "Suits stayed on winding up order. (1) When a winding up order has been made or the Official Liquidator has been appointed as provisional liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding up order, shall be proceeded with, against the company, except by leave of the Court and subject to such terms as the Court may impose ." [Emphasis supplied] 11. During his arguments Mr. Mukherjee, the learned counsel for the O.P. submits before me that the High Court passed the order for winding up of the Company on 11-2-2002 whereas the order of the Forum was passed on 26-2-2002. Mr. Mukherjee tries to impress upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d so the point No. 1 is decided in favour of the petitioner. 13. Now, I shall take up the second point for consideration. The case laws cited by the learned counsel for both the parties rather go to show that despite the provisions of the Reserve Bank of India Act and even the Companies Act the proceeding of the depositor before the Forum is quite maintainable. I like to make it clear here that section 446 of the Companies Act deals with the stay of the proceeding pending on the date of winding up order. But in view of my decision as regards the first point hereinbefore I am inclined to hold that despite the alternative remedy provided in the Consumer Act itself, the present proceeding is quite maintainable in view of the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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