IMPORTANT POINT
A person, who is not cited as opp. party in the org. complaint cannot be cited as judgment debtor for the first time in recovery proceedings filed under Section 25 or in any proceedings taken out under Section 27 of Consumer Protection Act, 1986.

P.N. Kashalkar, Member—This appeal is directed against the order dated 12/08/05 passed by District Consumer Forum, South Mumbai in consumer complaint No. 27/04. The appeal is also seeking to challenge issuance of recovery certificate dated 07/10/06 against the appellant in execution proceedings.

2. There is delay of 2 years 4 months and 9 days in filing the appeal. Therefore, appellant has filed an application for condonation of delay. Delay is not deliberate or intentional. As there is legal point is involved in the matter, we deem it fit to condone the delay.

3. Facts to the extent material may be stated as under:

In all 16 complaints came to be filed in District Forum, South Mumbai against M/s. Roofit Industries Ltd. and in some of the complaints besides Chairman, Shri Suresh G. Motwani and Director, Shri Vinod G. Motwani were also added as co-respondents. In one of the two complaints Shri Kishore G. Motwani & Nitish Nigam & Co. were also made opp. parties. All these 16 complainants were decided by common order passed by District Consumer South Mumbai on 12/08/05. By the said order opp. parties were directed to refund certain amounts of the complainants within time specified in the operative order. The Company and its Directors did not bother to pay the said amount to all the depositors and therefore, a recovery proceeding was initiated by filing execution No. 14/06. In the said recovery application copy of which is at page 73 (Exh.-C), opp. parties were shown as 1) M/s. Roofit Industries Ltd. 2) Mrs. Suresh G. Motani 3) M/s. J.M. Morgan Stanly 4) Mr. Kilge. So, these four were the opp. parties/judgment debtors against whom recovery proceeding was filed and Section 25 application was thus moved against them. Vide Exh-D President of District Forum- South Mumbai passed order issuing process under Section 27 of Consumer Protection Act, 1986 and that process was issued against M/s. Roofit Industries, Mr. Suresh G. Motwani, J.M. Morgan Stanley Retail Ser. Ltd. Vide Exh-E at page-100, certificate of recovery under Section 25(3) of Consumer Protection Act, 1986 was issued by President-South Mumbai forum on 07/10/96 and by that certificate Collector, Mumbai was directed to attach the property of opp. party nos. 1 to 4 but in the schedule of properties to be attached at page 103 name of appellants for the first time was mentioned and he was alleged to be Company Director of M/s. Roofit Industries Ltd. and his residential address B-9, Endeavour CHS, 90 Feet Road, Mulund (E), Mumbai-81 was shown as property liable to be attached along with Television, Refrigerators, DVD, Computers, Telephones, Fax machines, Xerox machines, Mobiles etc. It is this order which for the first time came to be passed by the Forum below involving property of appellant herein. Against this issuance of certificate under Section 25(3) of Consumer Protection Act, 1986, this appeal has been filed by the appellant herein.

4. We heard extensively Adv. V. Mannadiar for the appellant and Adv. U.B. Wavikar for the respondent.

5. We are shocked to find that the Ld. Forum below was pleased to issue Recovery certificate against the appellant’s personal property, when the appellant was not at all impleaded as opp. party or shown as Director of M/s. Roofit Industries Ltd. or when 16 other complaints were filed against the Company and some of the Directors of the said Company. Recovery proceedings or execution proceedings or proceedings under Section 25 of Consumer Protection Act, 1986 can be initiated only against those persons, who were originally cited as Chairman and Director of the Company, who committed default. If a person, who was Director, when complaint was filed was not made as opp. party in the org complaint then he cannot be proceeded against for the first time in the execution proceeding taken out cited under Section 25 or Section 27 of Consumer Protection Act, 1986. The basic principle governing disposal of consumer complaint is that no party should