An appeal can be filed against the orders passed under Section 27 of the Consumer Protection Act, 1986 on both facts and law. The prescribed procedure should be followed and the opportunity to raise grievances should be utilized.

JUDGMENT :

1. This petition has been filed under Section 482 of the Cr.P.C. for quashing of the order dated 27th January, 2020 passed by the State Consumer Disputes Redressal Commission, (‘SCDRC’, for short), New Delhi in Execution Petition No. 39/2018.

2. The brief history of the case, may be usefully adverted to at this juncture. The respondent No. 2/Sh. Prashant Somani had filed a complaint in the year 2015 against M/s Harsha Buildcom Pvt. Ltd. (‘HBPL’, for short) and its Director, namely, the petitioner, seeking refund of an amount of Rs. 18,50,000/-. This amount had been deposited by the complainant/respondent No. 2 with the petitioner in March, 2012 for purchase of a commercial premises in a building owned by HBPL. In the complaint, HBPL was accused of unfair trade practice, as it had not given the possession of the property in time, while admitting that, within six months, it was the complainant/respondent No. 2 who had himself sought refund and cancellation of the allotment.

3. During the pendency of the complaint before the SCDRC, HBPL entered a belated appearance and the right to file the written statement was closed. The parties were referred to mediation, but the complainant/respondent No. 2 apparently did not participate in the proceedings. According to the petitioner, though an opportunity to file the written statement was sought, the SCDRC did not grant such an opportunity and allowed the complaint of the complainant/respondent No. 2, directing the petitioner and his Company to refund the entire amount of Rs. 18,50,000/- alongwith interest @ 12% per annum to the complainant/respondent No. 2, awarding a further sum of Rs. 2,00,000/- towards mental agony, pain and harassment. This order was passed on 23rd March, 2018. An appeal was preferred only in December, 2018 with a delay of around 100 days and, therefore, the National Consumer Disputes Redressal Commission (‘NCDRC’, for short) declined to condone the delay vide order dated 13th December, 2018, consequently, dismissing the appeal.

4. In the meantime, the complainant/respondent No. 2 filed an execution petition, on which, notices were issued to the petitioner and his Company on 20th July, 2018. The proceedings in these execution proceedings culminated in the impugned order dated 27th January, 2020, whereby the petitioner was convicted under Section 27 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) and was sentenced to imprisonment of one year or till the payment of the entire amount, whichever was earlier.

5. Mr. Asutosh Lohia, learned counsel for the complainant/respondent No. 2 has raised a preliminary objection that the present petition was not maintainable in view of the fact that the Act provided for a statutory appeal and an hierarchy for filing of the same. It also provided for a limitation period. Reliance has been placed on the judgment of Cicily Kallarackal v. Vehicle Factory, (2012) 8 SCC 524 in support of this contention.

6. It is further argued by learned counsel for the complainant/respondent No. 2 that the very fact that the petitioner had requested suspension of the sentence, to file an appeal under Section 27A(1)(b) of the Act, reflected awareness of the nature of the remedy available to the petitioner, despite which, the present petition had been filed. It is also submitted that the Act is a Code in itself and the prescribed procedure ought to be adhered to.

7. The judgments relied upon by the petitioner, namely, Baburam Prakash Chandra Maheshwari (supra) and M.P. State Agro Industries Development Corpn. Ltd. v. Jahan Khan, (2007) 10 SCC 88 are not applicable to the present matter as those relate to writ petitions filed under Article 226 of the Constitution of India, whereas, the present petition has been filed under Section 482 Cr.P.C.

8. In response to this preliminary objection, Mr. Neeraj Grover, learned counsel for the petitioner, submitted that in Kamlesh Aggarwal Vs. Narayan Singh Dabas, (2015) 11 SCC 661, the Supr