Anjana Khoriwal vs Today Homes & Infrastructure Private ... on 1 April, 2019

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National Consumer Disputes Redressal

Anjana Khoriwal vs Today Homes & Infrastructure Private ... on 1 April, 2019

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI EXECUTION APPLICATION NO. 166 OF 2018 IN
CC/1250/2017 1. ANJANA KHORIWAL ...........Appellants(s) Versus 1. TODAY HOMES & INFRASTRUCTURE PRIVATE LIMITED ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER
For the Appellant : For the Complainants/DHs : Mr. Sushil Kaushik, Advocate
Ms. Himanshi Singh, Advocate and
Mr. Karan S. Negi, Advocate For the Respondent : For the Opposite Party/JD : Mr. Joy Basu, Sr. Advocate with
Mr. Sumesh Dhawan, Advocate
Ms. Vatsala Kak, Advocate
Ms. Ankita Bajpai, Advocate
Ms. Kanak Bose, Advocate
Mr. Ajay Sood, Director of OP/JD
Dated : 01 Apr 2019 ORDER

JUSTICE R. K. AGRAWAL, PRESIDENT

1. The Complainants (hereinafter referred to as 'the Decree Holders') had approached this Commission by filling the following Complaints against M/s. Today Homes & Infrastructures Pvt. Ltd., Developer and Promoter, (hereinafter referred to as the Judgement Debtor), for refund of the amounts paid by them towards sale consideration together with interest, compensation and costs of litigation.

Sl.No.

C.C.No.

Name of the complainant

Amount claimed as refund

1242/2017

Mr. Dinesh Kumar Paliwal/

Mrs. Chhavi Paliwal

Rs. 53,02,677/-

1243/2017

Mr. Sanwal Mal Kedia/

Mrs. Indu Kedia

Rs.62,37,464/-

1245/2017

Mrs. Anjali Rathi

Rs.62,37,464/-

1246/2017

Mr. Nikhil Moghe/

Mrs. Navya Moghe

Rs.49,30,194/-

1248/2017

Mr. Kapil Kaushik/

Mrs. Lata Kaushik

Rs.54,06,603/-

1249/2017

Mr. Paritosh Pant/

Mrs. Sweta Pant

Rs.59,85,246/-

1250/2017

Mrs. Anjana Khoriwal

Rs.63,07,417/-

1251/2017

Mrs. Mamta Talwar

Rs.47,87,974/-

2. After contest, all the aforesaid Complaint Cases were decided on 12th July, 2018 and the Judgment Debtor was directed to refund the entire amount paid by the Decree Holders along with interest and costs. The Operative Portion of the Order in each Complaint is reproduced below:

C.C. No. 1242 of 2017

Dinesh Kumar Paliwal and Chhavi Paliwal booked a residential Flat No. 701, Floor 7, Tower- 2 of 1640 sq. ft. and entered into a Builder Buyer Agreement on 08.06.2011, paying a total amount of Rs.53,02,677/- and the promised date of delivery was 08.06.2014. It is pertinent to note that the Complainants have taken a loan from LIC Housing Finance Limited at interest rate of 10.60% p.a. For all the aforenoted reasons in Consumer Complaint No. 1241of 2017, this Complaint is allowed in part and the Opposite Party is directed to refund the amounts paid with interest @ 12 % p.a. from the respective dates of deposit till the date of realization together with costs of Rs.25,000/- to be paid to each of the Complainants. Time for compliance, four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @ 14% p.a. for the same period.

C.C.No.1243 of 2017

Sanwar Mal Kedia and Indu Kedia booked a residential Flat No. 04, Floor 2, Tower- 5 of 1640 sq. ft. and entered into a Builder Buyer Agreement on 29.09.2011, paying a total amount of Rs.62,37,464/- and the promised date of delivery was 29.09.2014. It is pertinent to note that the Complainants have taken a loan from IDBI at interest rate of 10.25% p.a. For all the aforenoted reasons in Consumer Complaint No. 1241 of 2017, this Complaint is allowed in part and the Opposite Party is directed to refund the amounts paid with interest @ 12% p.a. from the respective dates of deposit till the date of realization together with costs of Rs.25,000/- to be paid to each of the Complainants. Time for compliance, four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @14% p.a. for the same period.

C.C. No.1245 of 2017

Anjali Rathi booked a residential Flat No.304, Floor 3, Tower- 6 of 1640 sq. ft. and entered into a Builder Buyer Agreement on 11.07.2011, paying a total amount of Rs.62,37,464/- and the promised date of delivery was 11.07.2014. It is pertinent to note that the Complainant has taken a loan from State Bank of India at interest rate of 10.75% p.a. For all the aforenoted reasons in Consumer Complaint No.1241 of 2017, this Complaint is allowed in part and the Opposite Party is directed to refund the amounts paid with interest @12% p.a. from the respective dates of deposit till the date of realization together with costs of ₹25,000/- to be paid to the Complainant. Time for compliance, four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @14% p.a. for the same period.

C.C.No.1246 of 2017

Nikhil Moghe and Navya Moghe booked a residential Flat No.1101, Floor 11, Tower- 1 of 1275 sq. ft. and entered into a Builder Buyer Agreement on 22.06.2011, paying a total amount of Rs.49,30,194/- and the promised date of delivery was 22.06.2014. It is pertinent to note that the Complainants have taken a loan from Axis Bank at interest rate of 10.75% p.a.. For all the aforenoted reasons in Consumer Complaint No.1241 of 2017, this Complaint is allowed in part and the Opposite Party is directed to refund the amounts paid with interest @12% p.a. from the respective dates of deposit till the date of realization together with costs of Rs.25,000/- to be paid to each of the Complainants. Time for compliance, four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @14% p.a. for the same period.

C.C.No.1248 of 2017

Kapil Kaushik and Lata Kaushik booked a residential Flat No.901, Floor 9, Tower-3 of 1640 sq. ft. and entered into a Builder Buyer Agreement on 10.08.2011, paying a total amount of Rs.54,06,603/- and the promised date of delivery was 10.08.2014. It is pertinent to note that the Complainants have taken loan from LIC Housing Finance Limited at interest rate of 10.60% p.a. For all the aforenoted reasons in Consumer Complaint No. 1241 of 2017, this Complaint is allowed in part and the Opposite Party is directed to refund the amounts paid with interest @12% p.a. from the respective dates of deposit till the date of realization together with costs of Rs.25,000/- to be paid to each of the Complainants. Time for compliance, four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @14% p.a. for the same period.

C.C. No.1249 of 2017

Paritosh Pant and Sweta Pant booked a residential Flat No.1203, Floor 12, Tower-2 of 1940 sq. ft. and entered into a Builder Buyer Agreement on 30.06.2011, paying a total amount of Rs.59,85,246/- and the promised date of delivery was 30.06.2014. It is pertinent to note that the Complainants have taken a loan from State Bank of India at interest rate of 10.50% p.a.. For all the aforenoted reasons in Consumer Complaint No.1241 of 2017, this Complaint is allowed in part and the Opposite Party is directed to refund the amounts paid with interest @12% p.a. from the respective dates of deposit till the date of realization together with costs of Rs.25,000/- to be paid to each of the Complainants. Time for compliance, four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @14% p.a. for the same period.

C.C. No.1250 of 2017

Anjana Khoriwal booked a residential Flat No. 04, Floor 11, Tower- 8 of 1940 sq. ft. and entered into a Builder Buyer Agreement on 01.08.2012, paying a total amount of Rs.63,07,417/- and the promised date of delivery was 01.08.2015. It is pertinent to note that the Complainant has taken a loan from LIC Housing Finance Corporation at interest rate of 10.50% revised to 12% p.a. For all the aforenoted reasons in Consumer Complaint No.1241 of 2017, this Complaint is allowed in part and the Opposite Party is directed to refund the amounts paid with interest @12% p.a. from the respective dates of deposit till the date of realization together with costs of Rs.25,000/- to be paid to the Complainant. Time for compliance, four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @14% p.a. for the same period.

C.C. No.1251 of 2017

Mamta Talwar booked a residential Flat No.604, Floor 6, Tower- 1 of 1275 sq. ft. and entered into an Builder Buyer Agreement on 23.07.2011, paying a total amount of Rs.47,87,974/- and the promised date of delivery was 23.07.2014. Though this Complainant has not availed of any Housing Loan, yet for all the reasons noted in Consumer Complaint No.1241 of 2017, this Complaint is allowed in part and the Opposite Party is directed to refund the amounts paid with interest @12% p.a. from the respective dates of deposit till the date of realization together with costs of Rs.25,000/- to be paid to the Complainant. Time for compliance, four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @ 14% p.a. for the same period.

3. The Decree Holders made several attempts requesting the Judgment Debtor to refund their amount along with interest and costs as ordered by this Commission but without any success whereupon they filed Execution Applications under Sections 25 & 27 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') for initiating action against the Judgment Debtor for non-compliance of the order dated 12th July, 2018 passed by this Commission as also to attach the properties of the Judgment Debtor, issue of warrants for imprisonment of the Directors and other responsible officers of the Judgment Debtor. On 07th September, 2018, notice was issued on the Execution Applications. It appears that the service could not be affected. However, on 13th February, 2019, the learned Counsel appeared for the Judgment Debtor and prayed for a week's time to file objections which was granted and the matter was fixed for 25th February, 2019. On 25th February, 2019, on the request of the learned Counsel for the Judgment Debtor, the matter was posted for 26th February, 2019. Again on 26th February, 2019, on the request of the learned Senior Counsel appearing for the Judgment Debtor, it was directed to be placed on 27th February, 2019 at 02:00 P.M.. It was made clear that the matter shall not be adjourned on any grounds whatsoever. However, on 27th February, 2019, the learned Senior Counsel appearing for the Judgment Debtor gave settlement option without prejudice, which was not accepted by the Decree Holders. On the request of the learned Senior Counsel appearing for the Judgment Debtor, the matter was adjourned and fixed for 5th March, 2019 to be taken up at 02:00 P.M.. On 5th March, 2019, the matter was again adjourned on the request of the learned Senior Counsel for the Judgment Debtor to 11th March, 2019 in order to explore the proposals given by the Company for settling the matters and if the matters are not settled between the parties by then, the cases will be taken up on the said date. On 11th March, 2019, the learned Senior Counsel made a submission that the talks of settlement could not fructify and, therefore, the matter was fixed for 29th March, 2019 and the Managing Director of the Judgment Debtor was also directed to appear personally. The orders dated 5th March, 2019 and 11th March, 2019 are reproduced below for ready reference:

" Dated: 05.03.2019

ORDER

Mr. Joy Basu, Learned Senior Counsel appearing for the Opposite Party/Judgment Debtor, stated that the cases be adjourned to 11.03.2019 at 2.00 p.m. in order to explore the proposals given by the Company for setting the matters and if the matters are not settled between the parties by them, the cases be taken up on the said date.

List on 11.03.2019 at 2.00 p.m."

" Dated: 11.03.2019 ORDER Mr. Joy Basu, learned Senior Counsel appearing for the Opposite Party/Judgement Debtor has very fairly stated that the Decree Holders/Complainants did not show any interest in the ready flats available in Noida/Greater Noida, therefore, there is no possibility of any amicable settlement between the parties.

Learned Counsel for the Decree Holders/Complainants also stated that the Complainants had booked flats in Gurgaon, Haryana and they are not interested for flats in Noida/Greater Noida in the State of U.P. As the talks of settlement could not fructify and there is no mutual Agreement between the parties, we are left with no option but to issue notice to the Managing Director of the Opposite Party to appear personally on 29.03.2019, at 2-00 P.M. However, if the Managing Director does not appear for any reason, bailable warrants may be issued, ensuring his presence."

4. The learned Senior Counsel appearing for the Judgment Debtor made the following submissions:

(i) As the Decree Holders have taken loans from the Banks/Financial Institutions and there are Tripartite Agreements in which the Decree Holders, the Judgment Debtor and the Banks/Financial Institutions are parties, if the entire amount of loan along with interest is not paid by the borrower Decree Holders, then the Judgment Debtor would be liable to pay as the Flats in question have been given as security to the Banks/Financial Institutions. According to him, if the Judgment Debtor pays the entire amount in compliance of the order dated 12th July, 2018 passed by this Commission to the Decree Holders then the liability of the Judgment Debtor towards Bank/Financial Institutions under the Tripartite Agreement will still remain and its interest will not be safeguarded.

(ii) He further submitted that the Judgment Debtor is running in grave financial crisis and not in a position to pay the entire amount along with interest as directed by this Commission in the order dated 12th July, 2018 finally deciding the Complaints and the Judgment Debtor is interested in settling the matter, if some reasonable time is granted.

(iii) He placed before us an order passed by Hon'ble Delhi High Court wherein it has been directed that no coercive measures shall be taken. He, therefore, submitted that these matters be deferred to await the decision of the Hon'ble Delhi High Court.

5. Mr. Ajay Sood, Director, who was present in person, stated that he is unable to give any commitment regarding the time schedule in which the payment can be made for the decision is to be taken by the Board of Directors.

6. The learned counsel for the Decree Holders submitted that the Decree Holders have booked their Flats/Apartments in the year 2011/2012 and more than 6/7 years have passed but they did not get the satisfaction of owning their own Flats/Apartments. They have taken loans from the Banks/Financial Institutions and are being forced to pay the Equated Monthly Instalments (EMIs) and interests which the Decree Holders are not in a position to pay any further and, therefore, there is no question of any settlement. He further submitted that the interest of the Judgment Debtor under the Tripartite Agreements can be amply safeguarded if the Judgment Debtor deposits the entire amount in compliance of the order dated 12th July, 2018 passed by this Commission, before this Commission itself and the amount so deposited be paid to the Banks/Financial Institutions who have given the loans and the balance amount, if any, shall be paid by the Decree Holders to the Banks/Financial Institutions.

7. The learned Counsel for the Decree Holders further submitted that the Judgment Debtor is only interested in delaying the matter on one ground or other without there being any plausible reasons. Their intention is not to pay any amount to the Decree Holders.

8. He further submitted that the plea of financial crisis being raised by the Judgment Debtor has no legs to stand as when the Flats/Apartments were commanding huge premiums, the Judgment Debtor has reaped huge profits and they had not shared anything with the Allottees/Purchasers of the Flats. Therefore, the question of taking a lenient view at this stage because of alleged financial crisis or the real estate market having gone down does not arise.

9. So far as the order passed by Hon'ble Delhi High Court and the matter sought to be deferred till the matter is decided by Honb'le Delhi High Court is concerned, the learned Counsel submitted that the Act is a self contained Code and any order passed by this Commission under Sections 25 and 27A of the Act is appealable before the Hon'ble Supreme Court and, therefore, the Hon'ble Delhi High Court ought not to have entertained writ petition filed under Article 226/227 of the Constitution of India against the order of the National Commission. He relied upon the decision of the Hon'ble Supreme Court of India in the case of Cicily Kallarackal Vs. Vehicle Factory, (2012) 8 SCC 524 and Union of India & Ors. Vs. Major General Shri Kant Sharma & Anr., (2015) 6 SCC 773.

10. Having heard the learned Counsel for the parties, we are of the considered opinion that the Decree Holders have paid substantial amounts towards purchase of Flats/Apartments in the Scheme floated by the Judgment Debtor in the year 2011/2012 and they had not been given the Flats/Apartments within the stipulated period under the Agreement. This Commission vide order dated 12th July, 2018 had directed the Judgment Debtor to refund the entire amount along with interest and costs. More than 6/7 years have passed since the Decree Holders have deposited substantial amounts, as already mentioned, details of which have already been given herein before. The Judgment Debtors are intentionally delaying the matter on one pretext or another. The Hon'ble Supreme Court in Civil Appeal No.3182 of 2019, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra decided on 25th March, 2019 has held that a buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.

11. So far as the Tripartite Agreements as also the proposal given by the learned Counsel for the Decree Holders, on each of the earlier dates we had made it clear that the Judgment Debtor shall deposit the entire amount before this Commission and the said amount will be handed over to the respective Banks/Financial Institutions which had given the loans and the Judgment Debtor would be absolved from any further liability. We fail to understand as to why this proposal given by the learned Counsel for the Decree Holders as also by us is not acceptable to the Judgment Debtor. This conduct of the Judgment Debtor supports the apprehension of the Decree Holders that the Judgment Debtor is only interested in delaying the matter and not refunding any amount.

12. So far as the matter to be deferred till Hon'ble Delhi High Court decides the case is concerned, we may mention here that the Hon'ble Delhi High Court has only stayed the taking of the coercive process and has not stayed further proceedings. In view of the order passed by the Hon'ble Delhi High Court staying the coercive process being taken, we will not direct coercive process to be taken till the matter is decided by the Hon'ble High Court of Delhi. However, we may mention here that in the decisions relied upon by the learned Counsel for the Decree Holders, the Hon'ble Supreme Court in the case of Cicily Kallarackal (supra) has held that the order passed by the National Commission is incapable of being questioned under the Writ Jurisdiction of the High Courts. Relevant paragraphs of the said decision are reproduced below:

"2. The basic issue that has been raised in the petitions is that the Kerala High Court did not have the jurisdiction to entertain the writ petition against the judgment and order passed by the National Consumer Disputes Redressal Commission (hereinafter called ''the Commission). The said order could be challenged only before this Court in view of the provisions of the Consumer Protection Act, 1986, thus, the order passed by the High Court impugned herein is a nullity for want of jurisdiction.

9. ............we hereby make it clear that the orders of the Commission are incapable of being questioned under the writ jurisdiction of the High Court, as a statutory appeal in terms of Section 27-A(1)(c) lies to this Court. Therefore, we have no hesitation in issuing a direction of caution that it will not be a proper exercise of jurisdiction by the High Courts to entertain writ petitions against such orders of the Commission."

In the case of Union of India & Ors. (supra) , the Hon'ble Supreme Court has referred to various decisions and has held as follows:

"30. In Nivedita Sharma vs. Cellular Operators Association of India and others, (2011)14 SCC 337, this Court noticed that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. The Court further noticed the previous decisions of this Court wherein the Court adverted to the rule of self-restraint that writ petition will not be entertained if an effective remedy is available to the aggrieved person as follows:

13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa this Court observed: (SCC pp. 440-41, para 11) "11. ... It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford in the following passage: (ER p. 495) '... There are three classes of cases in which a liability may be established founded upon a statute. ... But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. ... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.' The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd. and Secy. Of State v. Mask and Co. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine."

14. In Mafatlal Industries Ltd. v. Union of India B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed: (SCC p.607, para 77) "77. ... So far as the jurisdiction of the High Court under Article 226--or for that matter, the jurisdiction of this Court under Article 32--is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment."

15. In the judgments relied upon by Shri Vaidyanathan, which, by and large, reiterate the proposition laid down in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, it has been held that an alternative remedy is not a bar to the entertaining of writ petition filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order under challenge is wholly without jurisdiction or the vires of the statute is under challenge.

16. It can, thus, be said that this Court has recognised some exceptions to the rule of alternative remedy. However, the proposition laid down in Thansingh Nathmal v. Supt. of Taxes and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field."

32. In Cicily Kallarackal vs. Vehicle Factory 2012(8) SCC 524, the Division Bench of this Court held:

"4. Despite this, we cannot help but state in absolute terms that it is not appropriate for the High Courts to entertain writ petitions under Article 226 of the Constitution of India against the orders passed by the Commission, as a statutory appeal is provided and lies to this Court under the provisions of the Consumer Protection Act, 1986. Once the legislature has provided for a statutory appeal to a higher court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher court and entertain petitions in exercise of its powers under Article 226 of the Constitution of India. Even in the present case, the High Court has not exercised its jurisdiction in accordance with law. The case is one of improper exercise of jurisdiction. It is not expected of us to deal with this issue at any greater length as we are dismissing this petition on other grounds.

XXX XXX XXX XXX

9. ........, we hereby make it clear that the orders of the Commission are incapable of being questioned under the writ jurisdiction of the High Court, as a statutory appeal in terms of Section 27-A(1)(c) lies to this Court. Therefore, we have no hesitation in issuing a direction of caution that it will not be a proper exercise of jurisdiction by the High Courts to entertain writ petitions against such orders of the Commission."

33. Another Division Bench of this Court in Commissioner of Income Tax and others vs. Chhabil Dass Agrawal, (2014)1 SCC 603 held:

"11. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See State of U.P. v. Mohd. Nooh, Titaghur Paper Mills Co. Ltd. v. State of Orissa, Harbanslal Sahnia v. Indian Oil Corpn. Ltd. and State of H.P. v. Gujarat Ambuja Cement Ltd.

12. The Constitution Benches of this Court in K.S. Rashid and Son v. Income Tax Investigation Commission, Sangram Singh v. Election Tribunal, Union of India v. T.R. Varma, State of U.P. v. Mohd. Nooh and K.S. Venkataraman and Co. (P) Ltd. v. State of Madras have held that though Article 226 confers very wide powers in the matter of issuing writs on the High Court, the remedy of writ is absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of the principles of natural justice or the procedure required for decision has not been adopted. [See N.T. Veluswami Thevar v. G. Raja Nainar, Municipal Council, Khurai v. Kamal Kumar, Siliguri Municipality v. Amalendu Das, S.T. Muthusami v. K. Natarajan, Rajasthan SRTC v. Krishna Kant, Kerala SEB v. Kurien E. Kalathil, A. Venkatasubbiah Naidu v. S. Chellappan, L.L. Sudhakar Reddy v. State of A.P., Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra, Pratap Singh v. State of Haryana and GKN Driveshafts (India) Ltd. v. ITO.]

13. In Nivedita Sharma v. Cellular Operators Assn. of India, this Court has held that where hierarchy of appeals is provided by the statute, the party must exhaust the statutory remedies before resorting to writ jurisdiction for relief and observed as follows: (SCC pp. 343-45, paras 12-14) "12. In Thansingh Nathmal v. Supt. of Taxes this Court adverted to the rule of self-imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed: (AIR p. 1423, para 7) '7. ... The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by the statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.'

13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa this Court observed: (SCC pp. 440-41, para 11) '11. ... It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford in the following passage: (ER p. 495) xxx xxx xxx xxx

14. In Mafatlal Industries Ltd. v. Union of India B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed: (SCC p.607, para 77) '77. ... So far as the jurisdiction of the High Court under Article 226--or for that matter, the jurisdiction of this Court under Article 32--is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment.'"

(See G. Veerappa Pillai v. Raman & Raman Ltd., CCE v. Dunlop India Ltd., Ramendra Kishore Biswas v. State of Tripura, Shivgonda Anna Patil v. State of Maharashtra, C.A. Abraham v. ITO, Titaghur Paper Mills Co. Ltd. v. State of Orissa, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath and Sons, Whirlpool Corpn. v. Registrar of Trade Marks, Tin Plate Co. of India Ltd. v. State of Bihar, Sheela Devi v. Jaspal Singh and Punjab National Bank v. O.C. Krishnan.)

15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation."

36. The aforesaid decisions rendered by this Court can be summarised as follows:

(i) The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including Armed Forces Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India.(Refer: L. Chandra and S.N. Mukherjee).

(ii)The jurisdiction of the High Court under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of the Acts and would exercise their jurisdiction consistent with the provisions of the Act.(Refer: Mafatlal Industries Ltd.).

(iii)When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. (Refer: Nivedita Sharma).

(iv)The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance. (Refer: Nivedita Sharma)."

However, we are not expressing any opinion on the question as to whether the Hon'ble Delhi High Court can entertain any writ petition against the order of the National Commission or not. We, therefore, as there is no order restraining us from proceeding in the matter except that coercive measures shall not be taken, are deciding these Execution Applications on merits.

13. On a proposal being made by us that to show bona fide let some amount be deposited by the Judgment Debtor within a week, the learned Senior Counsel, on instructions received, stated that the Judgment Debtor is not in a position to deposit any amount. Thus, the bona fide of the Judgment Debtor to make refund of the amount in terms of the order dated 12th July, 2018 is lacking. The Decree Holders have an order dated 12th July, 2018 passed by this Commission in their favour, wherein the Judgment Debtor has been directed to refund the entire amount paid by them along with interest and costs within a specified period, which the Judgment Debtor for no reason whatsoever has not complied with. Therefore, the Decree Holders are entitled for refund of the entire amount along with interest and costs. More than nine months have passed. They cannot be made to wait any more.

14. As the Judgment Debtor has failed to refund the entire amount as directed by this Commission in its order dated 12th July, 2018, we direct the Judgement Debtor to refund the entire amount along with interest and costs in terms of the order dated 12th July, 2018 within two weeks from today failing which Mr. Ajay Sood, Director, shall be taken into custody and all the properties of the Judgment Debtor and the personal properties of the Judgment Debtor shall be attached and the decretal amount shall be recovered from it. However, this order of taking into custody and attachment of property shall be given effect into only after the Hon'ble Delhi High Court decides the matter.

The Execution Applications stand disposed of.

Order Dasti.

......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER

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