Calcutta High Court (Appellete Side)
Smt. Monika Kahali vs Mr. Astik Moni Das & Ors on 17 May, 2012
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1
Form No.J(2) IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
C.O. No. 3854 of 2007
Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Smt. Monika Kahali.
Versus
Mr. Astik Moni Das & ors.
For the petitioner: Mr. Tapabrata Chakraborty,
Mr. Kumaresh Dalal.
For the opposite party no.1: Mr. Subrata Kumar Dutt,
Mr. Chandra Sekher Banerjee.
For the opposite party no.3: Mr. Hiranmoy Bhattacharya.
Heard On: 15.05.2012.
Judgement On: May 17, 2012.
Prasenjit Mandal, J.: This application is at the instance of the
judgment debtor and is directed against the order dated October 1,
2007 passed by the Hon'ble State Consumer Disputes Redressal
Commission (hereinafter referred to as "State Commission") in
Execution Case No.13 of 2006 arising out of State Commission Case
No.197/0/95.
The opposite party no.1 preferred an application under
Section 17 of the Consumer Protection Act, 1986 being the State
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Commission Case No.197/0/95 praying for directing the respondents
to hand over possession of a flat in question in favour of the petitioner, alternatively, for a direction upon the respondents to pay a sum of Rs.6,29,000/- and other consequential reliefs. In that complaint, by a majority decision of the State Commission, the opposite party no.1 was directed to negotiate for amicable settlement of the dispute by a mutual discussion with the respondent no.s 1 & 2 or may approach to the civil Court, if he so chooses for his remedy. Being aggrieved by such majority judgment, the opposite party no.1 preferred an appeal before the Hon'ble National Commission being First Appeal No.257 of 1996. The said appeal was disposed of by an order dated January 28, 2004 on the basis of a petition signed by Ashok Kumar Kahali, husband of the petitioner and filed by one Mr. Anjan Biswas. Thereafter, the opposite party no.1 filed an application under Section 27 of the Consumer Protection Act for contempt of orders dated January 28, 2004 passed by the Hon'ble National Commission. That application was withdrawn by the opposite party no.1 stating, inter alia, that she would be moving the Hon'ble State Commission under Sections 25 & 27 of the Consumer Protection Act. Accordingly, the said contempt application was dismissed as withdrawn.
When the opposite party no.1 filed an application under Sections 25 & 27 of the said Act for enforcement of the orders, 3 the petitioner herein filed an objection contending that the said application was not maintainable. That application was rejected on contest and the judgment debtors were directed to carry out the order of the Hon'ble National Commission dated January 28, 2004 without any further delay. Being aggrieved, this application has been preferred.
Now, the question is whether the impugned order should be sustained.
Upon hearing the learned Advocates for the parties and on perusal of the materials on record, I find that the petitioner has challenged the impugned order on various grounds. Mr. Tapabrata Chakrabarty, learned Advocate for the petitioner submits that the said Execution Case No.13 of 2006 is not maintainable before the Hon'ble State Commission on the ground that the State Commission did not grant any relief in favour of the decree-holder / opposite party herein. The Hon'ble National Commission granted the relief of making payment of Rs.4,50,000/- by nine equal monthly instalments.
Mr. Chakrabarty has also contended that the opposite party no.1 got an award from the Hon'ble National Commission on the basis of a settlement between Ashok Kumar Kahali and the appellant in F.A. No.257 of 1996 and the petitioner was not a signatory to the said settlement at all. As such, the petitioner is not bound by the award. He has also contended that since the award was 4 passed by the Hon'ble National Commission, the application for execution lies before the Hon'ble National Commission. But, the opposite party no.1 filed the application for execution before the Hon'ble National Commission under Section 27 of the Consumer Protection Act and the said application was withdrawn by him, but no leave was obtained from the concerned National Commission. As such, the opposite party no.1 is not entitled to file a fresh application for execution of the award before the Hon'ble State Commission. The Hon'ble State Commission is not, therefore, proper in rejecting the objection against execution of the award against the petitioner.
On the other hand, Mr. Subrata Kumar Dutt appearing for the opposite party no.1 has contended that at the time of settlement before the Hon'ble National Commission, an application was filed for settlement on behalf of the respondent no.s 1 & 2 and this would appear from Annexure 'P1'.
He has also pointed out that learned Advocate, namely, Mr. Anjan Biswas appeared for the respondent no.s 1 & 2 before the Hon'ble National Commission in F.A. No.257 of 1996 and as such, the said settlement should be deemed to have been filed on behalf of Ashok Kumar Kahali and his wife, the petitioner herein both. He has also submitted that the application for execution under Section 27 of the C.P.C. was filed by the decree-holder before the Hon'ble National Commission as the award was passed by the Hon'ble 5 National Commission. Subsequently, that execution application was allowed to be dismissed for non-prosecution on the ground that the decree-holder was going to take steps under Sections 25 & 27 of the Consumer Protection Act before the Hon'ble State Commission. This fact reveals from the order itself dated April 12, 2005 appearing at page no.25 of the application. So, such fact amounts to permission.
Mr. Dutt has also submitted that the present application before this Hon'ble Court is not maintainable on the ground of jurisdiction and in support of his submission he has referred to three decisions of Rafique Bibi (D) By L.Rs. v. Sayed Waliuddin (D) By L.Rs. & ors. reported in AIR 2003 SC 3789, Mandira Mookerjee v. District Consumer Disputes Redressal Forum & ors. reported in AIR 2005 Calcutta 108 and CCI Chambers Coop. Hsg. Society Ltd. v. Development Credit Bank Ltd. reported in (2003) 7 SCC 233 and thus, he submits that this application is not maintainable before this Hon'ble Court and so, this application should be dismissed.
Mr. Hiranmoy Bhattacharya appearing on behalf of the opposite party No.3 has adopted the submission of Mr. Dutt.
It may be pointed out that the appeal was not filed by the petitioner but the opposite party no.1. The notice was duly served upon the petitioner. But the petitioner did not appear 6 before the Hon'ble National Commission at the time of hearing of the application for settlement of the dispute.
It may also be pointed out here that as per Annexure 'P1', Mr. Anajan Biswas, learned Advocate appeared in the said appeal on behalf of the petitioner and her husband and filed the terms of settlement indicating that the terms of settlement had been filed by him on behalf of the respondent no.s 1 & 2. The contention of Mr. Chakraborty that since this application had not been signed by the petitioner, the petitioner is not bound by the order passed thereon, cannot be accepted at all, inasmuch as it was not a compromise but the settlement forwarded by the respondent no.s 1 & 2 before the Hon'ble National Commission for passing the appropriate orders. So, all the terms and conditions necessary for filing a compromise petition as provided under Order 23 Rule 3 of the C.P.C. need not be complied with in respect of consumer disputes.
It may be noted herein that the opposite party no.1 also did not sign on the compromise or settlement. So, it cannot be described as an application for compromise but the offer of terms forwarded on the behalf of the opposite party no.s 1 & 2 for passing appropriate award in respect of the matter in dispute in the said appeal. So, the petitioner cannot avoid the terms of settlement. The Hon'ble National Commission had accepted the settlement and the appeal was disposed of accordingly. The 7 petitioner did not submit before the appellate authority by filing a proper application that she was not bound by the terms of settlement.
So far as the execution application before the Hon'ble National Commission is concerned, I find from the materials on record that the said application for execution was dismissed as withdrawn in view of the fact that, decree-holder would be moving the Hon'ble State Commission an application under Sections 25 & 27 of the Consumer Protection Act. In that situation, the said application under Section 27 of the said Act was allowed to be dismissed as withdrawn.
The contention of Mr. Chakrabarty that the execution case should have been filed before the Hon'ble National Commission cannot be accepted inasmuch as the Hon'ble National Commission heard the appeal but the Hon'ble State Commission dealt with the complaint filed by the opposite party no.1. So, the appropriate application for execution under Sections 25 & 27 of the Consumer Protection Act was properly filed before the Hon'ble State Commission.
Mr. Chakrabarty has drawn my attention to the provisions of Section 25(3) of the said Act and submits that a application may be filed for enforcement of the order / award relating to any amount due from any person to the District Forum, State Commission or the National Commission as the case may be and such authority 8 may issue a certificate for the said amount to the Collector of the concerned District and the Collector shall proceed to recover the amount in the same manner as arrears of land revenue. With due respect to Mr. Chakrabarty, I am of the view that the contention that the application for enforcement was to be filed under Sections 25 & 27 of the said Act before the Hon'ble National Commission, cannot be accepted.
Now, the authorities under the provisions of the said Act are competent to take appropriate steps for enforcement of orders / awards under the provisions of Sections 25 & 27 of the said Act. I am of the view that the application for execution should be filed before the authority where the complaint was filed. Just for instance, I may say that as per provisions of the C.P.C. when the Civil Judge (Junior Division) dismisses a suit and an appeal has been preferred and that appeal has been allowed and the said appeal has attained finality for not taking other steps for second appeal / review etc., the application for execution lies before the Civil Judge (Junior Division) and not to the Appellate Court. On the similar analogy, I am of the view that as per provisions of the Consumer Protection Act, an application under Sections 25 & 27 of the Act for enforcement of orders lies before the authority where the complaint was filed and in the instant case, such a recourse has been adopted by the opposite party no.1. The Hon'ble State Commission has, therefore, rightly rejected the objection 9 raised by the petitioner by passing the impugned order. The impugned order, therefore, I hold, does not suffer from any jurisdictional error.
It may be noted herein that the husband of the petitioner died on May 28, 2007 leaving the petitioner and others as heirs. So, the petitioner has inherited the property left by her husband. The application for execution was filed in the year 2006 and so, the husband of the petitioner died during the pendency of the said execution case and the petitioner has been substituted as one of the judgment debtors in the said execution case. So, I am of the opinion that this has been done properly and that the execution case is quite maintainable against the petitioner from that angle.
Mr. Chakrabarty has referred to the decision of Kiran Singh & ors. v. Chaman Paswan & ors. reported in (1955) 1 SCR 117 relating to inherent want of jurisdiction. This judgment lays down the general provision that the Court may refuse to execute a decree which is void or a nullity. This judgment is not connected with the matter under the provisions of Consumer Protection Act, 1986. So, I am of the view that this decision is not applicable in the instant case.
Mr. Chakrabarty has also referred to the decision of Venugopal v. Sub-Inspector of Police, Mathilakam & ors. reported in AIR 2000 Kerala 271 and submits that in dealing with an application under Section 27 of the Act, the redressal agency is 10 required to consider the defence raised by the party. I find from the impugned order that the defence stand has been properly considered.
As regards maintainability of the application under Article 227 of the Cr.P.C., Mr. Dutt has referred to the above noted three decisions. But, with due respect to him, I am of the view that these decisions do not deal with the matter of jurisdiction at all. They have no relevancy with the matter I am dealing with. Anyway, I find that the Consumer Protection Act, 1986 is now a complete Act and there is a provision for enforcement of the award/orders passed by the authorities under the Act. There is a provision of appeal or review against the order if any person is aggrieved by such orders. The award had been passed on January 8, 2004 and the execution case was filed in the year 2006 and the objection has been raised by the petitioner long time thereafter when appropriate steps for enforcement of the orders were being taken against her. The executing authorities cannot go behind the decree / award and it deals with the orders passed by the appropriate authority. In the instant case, the grievance of the petitioner is against the impugned order dated October 1, 2007 passed by the Hon'ble State Commission. If the petitioner had any grievance against the said order, the appropriate remedy was under
Section 21(b) of the said Act. For convenience, the said provisions of Section 21 of the Act is quoted below:- 11
"21. Jurisdiction of the National Commission. - Subject to the other provisions of this Act, the National Commission shall have jurisdiction.-
(a) to entertain.-
(i) complaints where the value of the goods
or services and compensation, if any,
claimed exceeds rupees [one crore]; and
(ii) appeals against the orders of any State
Commission; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State 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."
Therefore, in view of the provisions of Section 21(b) of said Act, the remedy was available before the Hon'ble National Commission, but, she did not avail herself of such opportunity. 12
When there is a specific provision for taking appropriate steps under a statute, the proper course of action is to be taken under the provisions of the said statute and for that reason an application under article 227 of the Constitution of India does not lie before this Hon'ble Court. The High Court cannot exercise this power or act as a Court of appeal over the orders of tribunals or courts subordinate to the Hon'ble Court. So, when the Act of 1986 provides alternative measures under Section 21(b), recourse under that Section should be adhered to. Any order, no doubt, includes an order passed in a execution proceeding.
In that view of the matter, I am of the opinion that this application is not maintainable at all. This application is also devoid of merits. The impugned order does not call for interference by this Hon'ble Court.
So, the application is dismissed.
Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)