9911796707
TMI Blog2006 (8) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... um (hereinafter 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 Dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court at Kolkata ordering the winding 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 affai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commission where it appears to the National Commission that such State Commission has exercised 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contemplated by section 25 and, therefore, the pendency of winding up proceedings will not come in the way of the Commission passing orders 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 orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justified in treating the appeal preferred by the petitioner as a revision petition particularly when no reason whatsoever have been given by the State Commission in treating the appeal filed by the petitioner as a revision petition. Therefore, we are of the view that the impugned order on the aspect of treating the appeal preferred by the petitioner as the revision petition cannot be sustained. 8. Normally, this would have necessitated the remand of the matter to the State Commission. However, we have considered the matter on the merits and found that in view of the judgment of the Division Bench of this Court in Ravi Kant s case ( supra ), there is no merit in the plea of the petitioner that after the winding up order, proceedings under section 27 of the Act would not lie. We are, therefore, of the view that no useful purpose will be served by remanding the matter in view of the concluded position of law. We also record our appreciation of the work put in by the amicus curiae , Shri Maulick Nanavati. 9. Accordingly, the writ petition is dismissed but with the above clarification in respect of powers of the State Commission under sections 15 and 17(1)( b ) of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
