National Consumer Disputes Redressal
M/S. Aliens Developers (P) Ltd. vs Deepa Vijay on 1 December, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 552 OF 2022 (Against the Order dated 11/04/2022 in Complaint No. 90/2018 of the State Commission Telangana) 1. M/S. ALIENS DEVELOPERS (P) LTD. SURVEY NO. 384 & 385., TELLAPUR VILLAGE, R. C. PURAM MANDAL, SANGAREDDY HYDRABAD, TELANGANA-502032 ...........Appellant(s) Versus 1. SASANK LOKA S/O SH. VENKATESHAM, REP. BY GPA, MRS. LAXMANJALI BURAM W/O LATE VENKATESHAM R/O 3-6-411, LOKA'S STREET NO. 3 HIMAYATH NAGAR ,HYDRABAD. ...........Respondent(s) FIRST APPEAL NO. 553 OF 2022 (Against the Order dated 11/04/2022 in Complaint No. 91/2018 of the State Commission Telangana) 1. M/S. ALIENS DEVELOPERS (P) LTD. SURVEY NO. 384 & 385, TELLAPUR VILLAGE, R.C. PURAM MANDAL SANGAREDDY HYDRABAD TELANGANA-502032 ...........Appellant(s) Versus 1. DEEPA VIJAY W/O VIJAY VISWANATHAN, REP. BY. HER GPA MR. S. SRIDHAR, S/OP. SUBRAHMANYAN, R/O 80/81, SOUJANYA COLONY, NEW BOWENPALLY, SECUNDERABAD-500011 DELHI-110048 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE A. P. SAHI,PRESIDENT
FOR THE APPELLANT : MR. SHIVKANT ARORA, ADVOCATE
MR. KARTIKEYA DURRANI, ADVOCATE FOR THE RESPONDENT : MS. TATINI BASU, ADVOCATE &
MR. KUMAR SHASHANK, ADVOCATE
(ON CAVEAT IN FA/553/2022)
Dated : 01 December 2023 ORDER
Heard learned counsel for the appellant.
Even though there are certain defects in the appeals as indicated, learned counsel for the appellant states that he has instructions not to press these appeals as the dispute has been settled between the parties.
Ms. Tatini Basu, learned Counsel, appears for the Caveator in First Appeal No. 553 of 2022. She has no objection to the withdrawal.
Both the appeals are accordingly dismissed as not pressed.
Learned Counsel for the Appellant has prayed for refund of the statutory deposits made.
Since some orders have been brought to my notice regarding refund, it is necessary to delineate on the same in order to avoid any future confusion with regard to directions for refunds. The clarification is necessary as there are some orders directing refund of fees whereas there are some directions for refund of statutory deposits. The refund of fees has been directed in original complaints.
The orders passed for refund of fees are as follows:
" CC/1413/2018 Order Dated: 18.07.2018 Admittedly, it is not in dispute that the Complainant is running its business and is a private limited company. It is maintaining a current account with Opposite Parties. The present Complaint is not maintainable as it relates to commercial transactions.
Accordingly, the Complaint is dismissed as not maintainable.
In view of the peculiar facts and circumstances of the case, the Registry is directed to refund the amount of ₹5,000/- deposited by the Complainant at the time of filing the Complaint.
CC/19/2022 Order Dated: 21.03.2022 Heard, the learned Counsel for the Complainant on admission. This is the case of alleged medical negligence wherein the son of Doctor (Complainant) died due to alleged medical negligence of the Hospital and Doctor. Learned Counsel tried to convinced us that the compensation in the instant case claimed was above 10 crores and filing the Complaint before this Commission is justified.
However, in the Consumer Protection Act, 2019, the pecuniary jurisdiction of respective Commission is based on the consideration paid. As per Section 58 (1) of Consumer Protection Act, 2019 which is reproduced as under :
Jurisdiction of National Commission :-
Subject to the other provisions of this Act, the National Commission shall have jurisdiction -
To entertain -
Complaints where the value of the goods or services paid as consideration exceeds rupees ten crore:
Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit;
Complaints against unfair contracts, where the value of goods or services paid as consideration exceeds ten crore rupees;
Appeals against the orders of any State Commission;
Admittedly, the consideration paid for treatment was about 80-90 thousand. Therefore in our view, this Commission has no pecuniary jurisdiction to adjudicate at this stage. Learned Counsel for the Complainant on instructions wants to withdraw this Complaint and file it before the Appropriate Commission having the jurisdiction. Learned Counsel further submitted that the Complaint was filed on 10.02.2022 as time was spent to seek expert opinion.
Considering the entirety, the Complaint is allowed to be withdrawn with liberty to file before the Appropriate Commission.
The Registry is directed to refund the fees deposited before this Commission be refunded to the Complainant alongwith paper-book within two weeks.
MA/253/2022 IN CC/118/2022 Order Dated: 26.08.2022 The Application being M.A. No.253 of 2022 has been filed by the Complainant seeking refund of the Statutory Fee deposited by him i.e. Rs.7500/- as the Complaint has been dismissed as not maintainable on the ground of pecuniary jurisdiction. The Application is allowed. Registry is directed to refund the amount of Rs.7500/- deposited by the Complainant, within two weeks.
CC/2484/2018 Order Dated: 04.01.2019 An application has been filed by the learned counsel for the complainant that he wants to withdraw the present complaint and pursue the matter before an appropriate forum. It has been further requested in the application that the original documents filed along with this complaint be also returned along with the statutory fees that has been paid by the complainant.
Accordingly, consumer complaint no. 2484 of 2018 stands dismissed as withdrawn. Registry is directed to return the original documents filed along with the present complaint as well as the statutory fees deposited by the complainant after due verification of the deposited amount."
A perusal of the above mentioned orders indicates that the fee deposited for entertaining of an original complaint has been directed to be refunded. Under the Consumer Protection Act 1986 Section 12(2) reads as under:
"(2) Every complaint filed under sub-section (1) shall be accompanied with such amount of fee and payable in such manner as may be prescribed."
The Consumer Protection Rules 1987 under rule 9A provide as under:
"9A. Fee for making complaints before District Forum - (1) Every complaint filed under sub-section (1) of section 12, sub-section (1) of section 17 and clause (a) in sub-clause (1) of section 21 of the Act shall be accompanied by a fee, as specified in the table given below in the form of crossed Demand Draft drawn on a nationalised bank or through a crossed Indian Postal Order in favour of the President of the District Forum, Registrar of the State Commission or the Registrar of the National Commission, as the case may be, and payable at the respective place where the District Forum, State Commission or the National Commission is situated.
(2) The concerned authority referred to in sub-rule (1) shall credit the amount of fee received by it into the Consumer Welfare Fund of the respective State and where such Fund is not established, into the Receipt Account of the State Government and in the case of the National Commission, to the Consumer Welfare Fund of the Central Government.
TABLE Sl. No. Value of goods or services and the compensation claimed Amount of fee payable (1) (2) (3) District Forum (1) Upto one lakh Rupees- For complainants who are under the Below Poverty Line holding Antyodaya Anna Yojana cards.
Nil (2) Upto one lakh Rupees- For complainants other than Antyodaya Anna Yojana card holders.
Rs.100 (3) One lakh rupees and above but less than five lakh rupees Rs.200 (4) Five lakh rupees and above but less than Rs.10 lakh Rs. 400 (5) Ten lakh rupees and above but not exceeding twenty lakh rupees Rs.500 State Commission (6) Above twenty lakh and upto fifty lakh Rupees Rs.2000 (7) Above fifty lakh and upto one crore Rupees Rs.4000 National Commission (8) Above one crore Rupees Rs.5000 The complainant who are under the Below Poverty Line shall be entitled for exemption of payment of fee only on production of an attested copy of the Antyodaya Anna Yojana cards."
Rule 14(1)(1A) is the procedure to be followed by the National Commission which is as follows:
"Procedure to be followed by the National Commission.--(1).....(1A) Every complaint under sub-rule (1) shall be accompanied by the relevant fee as is specified in rule 9A."
Coming to the Consumer Protection Act 2019, Section 35(2) reads as under:
"35. Manner in which complaint shall be made.--
(2) Every complaint filed under sub-section (1) shall be accompanied with such fee and payable in such manner, including electronic form, as may be prescribed."
Similarly, under the Consumer Protection Rules of 2020, Rule 7 prescribes the fee payable which is almost pari materia, except the rates to the 1986 Act and the rules framed thereunder:
"7. Fee for making complaints. - (1) Every complaint filed under sub-section (1) of section 35 or under sub-clauses (i) and (ii) of clause (a) of sub-section (1) of section 47 or under sub-clauses (i) and (ii) of clause (a) of sub-section (1) of section 58 shall be accompanied by a fee, as specified in the table given below, in the form of crossed Demand Draft drawn on a nationalised bank or through a crossed Indian Postal Order in favour of the President of the District Commission or the Registrar of the State Commission or the Registrar of the National Commission, as the case may be, and payable at the respective place where the District Commission, State Commission or the National Commission is situated, or through electronic mode as per arrangement made by the Commission concerned. (2) The District Commission or the State Commission, as the case may be, shall credit the amount of fee received by it under sub-rule (1) to the Consumer Welfare Fund of the State and where such Consumer Welfare Fund is not established, into the appropriate account of the State Government, and the National Commission shall credit such amount of fee received by it to the Consumer Welfare Fund of the Central Government.
TABLE Sl. No. Value of goods or services paid as consideration Amount of fee payable (1) (2) (3) District Commission (1) Upto Rupees Five Lakh Nil (2) Above Rupees Five Lakh and upto Rupees Ten Lakh Rs. 200 (3) Above Rupees Ten Lakh and upto Rupees Twenty Lakh Rs. 400 (4) Above Rupees Twenty Lakh and upto Rupees Fifty Lakh Rs. 1000 State Commission (5) Above Rupees Fifty Lakh and upto Rupees One Crore Rs. 2000 (6) Above Rupees One Crore and upto Rupees Two Crore Rs. 2500 National Commission (7) Above Rupees Two Crore and upto Rupees Four Crore Rs. 3000 (8) Above Rupees Four Crore and upto Rupees Six Crore Rs. 4000 (9) Above Rupees Six Crore and upto Rupees Eight Crore Rs. 5000 (10) Above Rupees Eight Crore and upto Rupees Ten Crore Rs. 6000 (11) Above Rupees Ten Crore Rs. 7500"
Rule 12(2) of the said rule for the National Commission is also on the same terms.
There is, however, one exception which needs to be specifically mentioned regarding refund which is under the Consumer Protection Mediation Rules 2020 where Rule 5 empowers the Commission to refund the full amount of application fee paid in respect of such complaint if a settlement is reached between the parties. Rule 5 of the said rules is extracted hereunder:
" 5. Refund of fee.-- Where the Commission refers the parties to mediation, the complainant shall be entitled to receive full amount of application fee paid in respect of such complaint, if a settlement is reached between such parties."
The question therefore is as to whether a fee deposited for entertaining a complaint under the Consumer Protection Act 2019 is refundable or not, there seems to be no direct authority on the same and therefore the necessity to consider this issue.
With regard to civil suits and other proceedings, the payment of court fees is governed by the Court Fees Act 1870. Sections 13 to 16 of the Court Fees Act indicate the contingencies when a refund of fee is available in respect of rejection of a complaint, on the review of a judgment, on a reversal or modification of its formal decision on ground of mistake in law or fact and on account of a settlement in terms of Section 89 of the Civil Procedure Code. The aforesaid provisions indicate that the Court can authorise by issuing a certificate to the concerned litigant to receive back the said fee from the Collector. It is to be kept in mind that court fees charged is collected and has to be preserved keeping in view the constitutional mandate of Article 284 of the Constitution of India which is extracted hereunder:-
"284. Custody of suitors' deposits and other moneys received by public servants and courts.--All moneys received by or deposited with-- (a) any officer employed in connection with the affairs of the Union or of a State in his capacity as such, other than revenues or public moneys raised or received by the Government of India or the Government of the State, as the case may be, or (b) any court within the territory of India to the credit of any cause, matter, account or persons, shall be paid into the public account of India or the public account of State, as the case may be."
Consequently, since the court fees is deposited in the state coffers, it seems that for the said reason the Court Fees Act provides for a certification by the Court and then it is refunded by the Collector.
On the issue of a settlement under Section 89 CPC, the Apex Court in a recent decision in the case of High Court of Judicature at Madras Vs. M.C. Subramanium & Ors (2021) 3 SCC 560 has held that the refund is permissible even where the settlement or the compromise has been arrived at privately for the reason that the State would not be incurring any expenditure and the settlement is arrived at between the parties without intervention of the Court. The view taken was that the petitioners therein were entitled to refund of the Court fee deposited by them in appeal suits before the Madras High Court that had been settled between the parties.
However, such issues have also been arising in the past in respect of civil suits governed by the provisions of CPC and the Court Fees Act 1897. One of the earliest decisions is in the case of Ramakant Pathak Vs. Murli Dhar Pandey, 170 Ind Cas 483, dated 12.02.1937, where a Division Bench of the Allahabad High Court was considering an issue of deficient court fee. In that case, there was a deficiency and the plaintiff was allowed time to make the amount good but he failed to do so and the plaint was rejected. Thereupon, an application was moved for refund of the court fee paid by him which was to the extent of four Annas only. The matter was referred to the Division Bench and it was held that the Court could not refund the fee as claimed by the plaintiff because any deficiency in the payment of court fee and the consequential rejection of the plaint does not offer any justification for refund or an alleged unfair treatment.
In another case of the Punjab and Haryana High Court in Jawahar Singh Sobha Singh Vs. Union of India (UOI) And Ors. AIR 1958 P H 38, a reference was made to a full Bench in respect of a claim of refund of court fee on the return of the plaint. The issue also was whether the High Court had any inherent or implied powers independently of the statute to pay back a court fee. While answering the questions, the High Court ruled that the power of a Court to remit or refund court fees is confined only to fees which have been illegally or erroneously assessed or collected and does not extend to fees which have been paid or collected in accordance with the provisions of the Court Fees Act. In essence, an authorisation of law was necessary for exercise of such power and it was not inherent.
The third judgment of the Delhi High Court is in the case of Devender Pratap Singh and Anr Vs. Land Mark Infracon Pvt. Ltd. and Ors. in an Original Civil Suit No. 1356 of 2005, where an interim application was decided on 12.02.2008 by a learned single Judge of the Delhi High Court and held that it is settled law that a person who files a suit must be careful and vigil. A suit should be filed only if there is a cause of action and some right has accrued in favour of the plaintiff. It was opined that if a suit is filed without a cause of action and without there being any right, the suit is liable to be dismissed and in such a case the plaintiff is not entitled for refund of court fee. In that case, the suit was dismissed as withdrawn on account of certain technical defects and liberty had been granted to file a fresh suit. As noted above it was, however, held that no such refund was permissible in such a situation.
The sum and substance of the aforesaid guidelines and the opinions therefore indicate that there is no inherent power to refund a fee subject to the statute by which the payment of the fee is governed. In the instant case, the payment of fees in respect of a complaint either before the District Forum or the State Commission or the National Commission is subject to the rules where the fee paid at the time of the institution of a complaint has to be credited to the account of the Consumer Welfare Fund as indicated in Sub Rule 2 of Rule 9A of the 1987 Rules and the corresponding rules, namely, Rule 7(2) of the Consumer Protection (Consumer Disputes Redressal Commissions) Rules 2020. Once the amount is credited into the receipt account of the State Government or the Central Government, the said fee cannot be refunded as there is no such provision under the Rules nor is there any inherent power conferred on the Commissions to refund the same.
The legislature also has consciously granted an exemption of payment of fee in favour of those who are below poverty line as is evident under Sub Rule 3 of Rule 9A of the 1987 Rules read with Column 1 of the Table referred to above. However, this exemption only for below poverty line persons has been excluded in Rule 7 of the 2020 Rules where complete exemption is granted to all classes of complainants whose claims are up to Rs.5,00,000. The concession of refund is only available under the Consumer Protection Mediation Rules 2020, referred to above, where a specific rule has been provided for refund of fee on a settlement being arrived at between the parties, the application fee paid can be received back by the complainant. The legislature therefore consciously has provided for exemption and refund at the appropriate place under the 1986 Act and the Rules framed thereunder and the 2019 Act and the Rules framed thereunder as noted above. Apart from these provisions there is no other provision for refund of fee. It is expected that the Registry of this Commission shall take notice of these provisions for any future guidance.
Accordingly, the orders which have been passed previously in complaints, the samples whereof have been indicated above do not appear to have traversed the relevant provisions and the law on the subject and consequently henceforth each complaint will have to be examined keeping in view the provisions hereinabove before an order of refund is passed on a claim of refund.
It is to be noted that under the Consumer Protection Act appeals and revisions do not require any payment of court fee as in the case of a complaint. However, for entertaining an appeal in terms of Section 15 and Section 19 of the Consumer Protection Act 1986 and appeal before a State Commission has to be compulsorily accompanied by an amount of Rs.25,000/- or 50% of the decretal amount as a pre-deposit under the statute and before the National Commission the said amount is Rs.35,000/- if the appeal is referred against the order of the State Commission. Provisions of statutory pre-deposit have been revised under the 2019 Act. These deposits are not fee but are deposits of pre-condition for the entertaining of an appeal. These amounts therefore are subject to any adjustments or orders when a final adjudication takes place. In such cases, the Commission has to exercise powers for the adjustment of the said amount as against a person who is required to pay any amount in terms of the orders passed by the subordinate forum. Consequently, statutory deposits can be refunded and adjusted.
The Apex Court very recently, in the case of Universal Sompo General Insurance Co. Ltd. Vs. Suresh Chand Jain And Anr. reported in 2023 SCC Online SC page 877, issued directions in a special leave petition for release of 50% of the amount directed to be deposited before the Apex Court on the ground that since the special leave petition was not being entertained, and the petitioner had the option to move a writ application under Article 226 or 227 before the High Court, therefore since the petition was not being entertained on merits, refund was directed.
It is therefore evident that in matters of fees payable on complaints which are decided on a settlement on mediation, the rules provide for refund of the fees only on settlement. If the matters are settled or otherwise withdrawn any statutory deposit made as a pre-requisite for filing an appeal either before the State Commission or the National Commission can be directed to be refunded.
In the present appeal also the appeal has been permitted to be withdrawn at the nascent stage itself therefore the Registry is directed to refund the statutory deposits made by the appellants within 15 days.
.........................J A. P. SAHI PRESIDENT