M.L. Singhal, J.
1. Vide order dated 2.6.2000 (An-nexure P-12), State Consumer Disputes Redressal Commission, Haryana, Chandigarh allowed complaint tilled P.S. Vohra and another v. Druckgrafen India Limited, Regd. Office SCO No. 821 -22, Sector 22-A, Chandigarh a company incorporated and registered under the Companies Act, 1956 and directed the latter to refund principal amount deposited by them (complainant) alongwith interest at the rate agreed upon between the parties with effect from the date it had fallen due but remained unpaid. Vide order dated 12.5.2000 respondent No. 2-Consumer Disputes Redressal Forum, Union Territory, Chandigarh (hereinafter to be referred as "the Forum") issued notice of punishment under Section 27 of the Consumer Protection Act, 1999 to the petitioner M/s. Druckgrafen India Limited through its Managing Director J.L. Nanda and Mrs. Ved Nanda, Director of this company.
2. Through this revision filed by the company, its Managing Director and its Director under Article 227 of the Constitution of India, they have prayed the quashing of notice of punishment under Section 27 of the Consumer Protection Act by the Forum against them and they have further prayed stay of all execution proceedings pending before the Forum filed by Sangeeta Kumari and others respondents No. 3 to 15 and issuance of any other order or direction which this Court may deem fit in the light of the facts and circumstances of the case. It is alleged in this revision that the Comapny was declared a sick industry by the Bureau of Industrial and Financial Re-construction (for short BIFR) on 29.12.1998 on a reference under Section 15(1) of the Sick Industrial Companies (Special Provisions) Act, 1985. So long as petitioner company remains declared a sick industry, it cannot deal with iis assets to discharge its liability without the consent of "BIFR".
3. Vide order Annexure P-1, BIFR has directed the company/promoters not to dispose of any fixed or current assets of the company without the consent of the BIFR. In case the company is running, the current assets can be drawn down to the extent required for day-to-day operations, proper account of which shall be maintained.
4. Respondents No. 3 to 15 and various investors who had invested their money in the year 1997 in the working capital of the company started filing complaints before the Forum for the recovery of their deposits. The Forum vide order dated 29.6.1999 Annexure P-2 directed the company to refund the deposits made by respondents No. 3 to 15 alongwith interest. It is alleged that so long as this unit continues to be declared a sick unit, this unit is unable to deal with its assets and discharge its liability without the consent of the BIFR. Petitioners have prayed the quashing of show cause notice dated 12/5/2000 Annexure P-7 issued by the Forum where through the petitioners have been called upon to show cause as to why penal action under Section 27 of the Consumer Protection Act, 1985 be not taken against them and they be not committed to prison for their failure to comply with the order/direction passed through order Annexure P-12 calling upon them to refund the amount deposited with them and also other similar order/direction issued by the Forum. It has further been prayed that the execution proceedings whether pending before the Forum or the Civil Court be stayed during the pendency of reference of the petitioner-company before the BIFR. It has also been prayed that arrest of J.L. Nanda and Mrs. Ved Nanda be stayed in every execution application before the forum filed under Section 27 of the Consumer Protection Act.
5. I have heard Sh. Ramesh Sharnia, counsel for the petitioner, Sh. B.S. Walia, Advocate for respondents Nos. 3, 4, 6 to 15 and Shri Balram Gupta, Advocate for respondents No. 16 and 17 and have gone through the record.
6. It was submitted by the learned counsel for the petitioners that without Board's consent even the State debt shall remain unpaid what to talk of private debts by a sick industrial unit during the continuance of the implementation of the scheme. In support of this submission, he drew my attention to Tata Davy Limited v. Slate of Orissa and others, 1997(6) Supreme Court Cases 669 where it was held that arrears of sales tax could not be recovered from the Tata Davy Limiled by the State without first seeking the consent of the BIFR. In Tata Davy Limiled v. State of Orissa, the appellant company was declared a sick company within the meaning of the Sick Industrial Companies (Special Provisions) Act, 1985. On a reference under Section 15 of the Central Act, an inquiry under Section 16 was made and a scheme was sanctioned by the Board for Industrial and Financial Reconstruction for the appellant's benefit. For the years 1983-84 and 198-85 the appellant was in arrears of the sales tax under the Orissa Sales Tax Act, 1947. Recovery of said arrears was sought to be made by attachment of the appellant's property under the provisions of Section 13-A of the State Act. The High Court held the appellant to be not entitled to the protection of Section 22(1) of the Central Act. The respondent-Slate contended that Section 22(1) of the Central Act should be so read as not to interfere with the exclusive power of the State to legislate under Entry 54 of List II of Schedule VII of the Constitution in respect of sales lax. It added that the words "any other law" in Section 22(1) of the Central Act must be so read as to exclude all laws on list II subjects. Rejecting the State's contention and allowing the appeal, the Hon'ble Supreme Court held as under :-
"The Central Act is enacted under Entry 452 of List I of Schedule VII. The said Entry 52 empowers Parliament to legislate in respect of "Industries, the control of which by the Union is declared by Parliament of law to be in the public interest". The Cenfral Act declares that it is "for giving effect to the policy of the State towards securing the principles specified in clauses (b) and (c) of Article 39 of the Constitution" namely, "that the ownership and control of the material resources of the community are so distributed as best to subserve the common good" and "that the operation of the economic system does not result in the concentra-lion of wealth and means of production to the common detriment. The Central Act does not impair or interfere with the rights of the States to legislate with respect to sales tax under Article 54 of List II of the Seventh Schedule. In the larger interest of the industrial health of the nation, Section 22 of the Cenlral Act requires all creditors seeking to recover their dues from sick industrial companies in respect of whom an inquiry under Section 16 is pending or a scheme is under preparation or consideralion or has been sanctioned to obtain ihe consent of the said Board to such recovery. If such consent is not secured and the recovery is deferred, the creditors' remedy is pro-lecled for the period of deferment and is, by reason of sub-section (5) of Section 22, excluded in the computation of the period of limitation. The words "any other law in Section 22 cannot, therefore, be read in the manner suggested by the respondent State. Therefore, the respondent State cannot recover the arrears of sales tax from the appellant company without first seeking the consent of the said Board in this behalf."
7. Learned counsel for the petitioners drew my attention to Rishabh Agro Industries Limited v. P.N.B. Capital Services Limited, 2000 Supreme Court Cases 515 where it was held that where the conditions precedent for applicability of Section 22 as stated therein are satisfied, then notwithstanding that the order of wind- ing up of the company has already been passed, Section 22 would be applicable. Mere possibility of misuse of this provision by an unscrupulous liligam would not justify taking of a view to the contrary. In this case although the Company had sought time from the Company Court to make payment of the amount due but subsequently after making only part-payment made a reference to B1FR, the reference could not ipso facto be said to be mala fide nor could the order of winding up or appointment of Liquidator have the effect of denuding the Board of Directors of the Company of its jurisdiction to move BIFR under Section 15(1) by passing a resolution.
8. In M/s. Punjab United Forge Limited v. M/s. Hindustan Hydraulics (P) Ltd., 1992(2) PLR 275 it was held that execution proceedings before Executing Court shall remain stayed as provided in Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985, as Section 22 places a bar on the filing or continuation of any proceedings in the nature of winding up, execution, distress etc. against any of the properties of the Company and under the circumstances it was mandatory for the executing Court to have given effect to the mandate of Section 22(1) which it has failed to do.
9. This Act was enacted with a view to securing the timely detection of sick and potentially sick companies owning industrial undertakings, the speedy determination by a Board of experts of the preventive, ameliorative, remedial and other measures which need to be taken with respect to such companies and the expeditious enforcement of the measures so determined and for matters connected therewith or incidental thereto. Section 22 of this Act deals with suspension of legal proceedings pending against a sick industrial unit in any Court.
10. In Sangfroid Remedies Limited v. Union of India and others, 1999(1) Supreme Court Cases 259 it was held that when the appellant was declared by BIFR to be a sick industry, no proceedings can take place against the appellant for the recovery of central excise so long as the unit remains declared a sick industry by the BIFR.
11. Faced with this position, learned counsel for the respondents submitted that the petitioners should have gone in appeal against the order of the State Consumer Disputes Redressal Commission, Haryana, Chandigarh. It was submitted that when the petitioners had got equally efficacious remedy, they should not be permitted to invoke extra-ordinary remedy available under Article 227 of the Constitution of India.
12. Suffice it to say, petitioners do not seek to attack the merits of the order Annexure P-12. AH that they are attacking is continuance of its execution without the consent of the BIFR. pruckgrafen India Limited has been declared a sick unit under the Sick Industrial Companies (Special Provisions) Act, 1985. In my opinion, the submission made by the ieamed counsel for the petitioners is correct. Petitioners are not im- pugning the merits of the order Annexure P-12. All that they want is stay of its execution in view of the aforesaid facts and circumstances.
13. It was submitted by the learned counsel for the respondents that the provisions of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 do not prohibit proceedings under the Consumer Protection Act being initiated or continued against the sick unit for the recovery of the amount due to the consumers. Proceedings before the Consumer Forum do not fall within the category enumerated in Section
22. In support of this submission, learned counsel drew my attention to Shree Chamundi Mopeds Limited v. Mumbai Grahak Panchayat, 1992(2) CPJ
14. Suffice it to say, these are not proceedings before the Forum for the recovery of the amount due to the consumers against which petitioners want stay. Decree has already been passed against the sick industrial unit. What is sought to be stayed by the petitioners is execution of the orders passed by the Forum/State Commission so long as the company continues to be declared a sick unit. How can the company which has been declared a sick unit deal with its assets without the consent of the BIFR so long as it continues to be a sick industrial unit.
15. It was submitted by the learned counsel for the respondents that if the Consumer Disputes Redressal Forum has passed a wrong order, State Commission can recall that order and pass appropriate order and set it aside where it finds any material irregularly or illegality in the order in view of the provisions of Section I7(b) of the Consumer Protection Act, 1985. This power is akin to the power of revision envisaged in Secfion 115 CPC. In support of this submission, counsel for the respondents drawn my attention to Pad-manaberi v. Consumer D.R. Forum, 1992 Consumer Protection Cases 259. It was submitted why should the petitioners be allowed to invoke extra-ordinary remedy when equally efficacious remedy is available to them under Section 17(b) of the Consumer Protection Act.
16. Suffice it to say if the Forum has passed an order which on the face of it cannot be sustained, why cannot this Court invoke its jurisdiction under Article 227 of the Constitution of India to undo the wrong. It would not be out of place to mention that it is the duly of this Court enjoined upon it under Article 227 of the Constitution of India to see that no Court or Tribunal within its territorial jurisdiction over-steps the limits of its jurisdiction.
17. In my opinion, this revision has to be allowed and is accordingly allowed and respondent No. 2-The Chandigarh Disputes Redressal Forum-11, Sector 17, Chandigarh is directed not to proceed further with the execution proceedings pending before it commenced by respondents No. 3 to 17 and operation of notice of punishment issued under Section 2 (Section 27 ?) of the Consumer Protection Act by the Forum is stayed and its operation shall remain stayed during the period the company continues to be declared a sick industrial unit. Execution proceedings shall be revived if the BIKR contents (Consents ?) to such recoveries.
18. Revision allowed.