National Consumer Disputes Redressal
Tinku Dey & Anr. vs Sri Provash Chandra Kar & 2 Ors. on 26 November, 2018
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2096 OF 2017 (Against the Order dated 11/05/2017 in Appeal No. 24/2016 of the State Commission West Bengal) 1. TINKU DEY & ANR. W/O. ANIMESH DE, 77, NETAJI COLONY 1ST FLOOR & GROUND FLOOR, P.S. BARANAGAR, DISTRICT-NORTH 24 PARGANAS WEST BENGAL 2. MR. ANIMESH DAS, S/O. MANASA PADA DE, 77, NETAJI COLONY 1ST FLOOR & GROUND FLOOR, P.S. BARANAGAR, DISTRICT-NORTH 24 PARGANAS WEST BENGAL ...........Petitioner(s) Versus 1. SRI PROVASH CHANDRA KAR & 2 ORS. S/O. LT. DARGA MOHAN KAR, 109/1, NETAJI COLONY, (HIGH LAND) P.S.BARANAGAR, DISTRICT- NORTH 24 PGS. WEST BENGAL 2. SMT. REKHA DAS @ JYOTSHNA DAS, W/O. LT. SUSHIL DAS,77, NETAJI COLONY 2ND FLOOR, P.S. BARANAGAR, DISTRICT-NORTH 24 PARGANAS WEST BENGAL 3. SUSANTA DAS @ CHOTAN DAS, S/O. LT. SUSHIL DAS,77, NETAJI COLONY 2ND FLOOR, P.S. BARANAGAR, DISTRICT-NORTH 24 PARGANAS WEST BENGAL ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MR. DR. S.M. KANTIKAR,MEMBER For the Petitioner : Mr. Prasanta Banerjee, Advocate For the Respondent : For Respondent No. 1 : Mr. Sanjoy Kr. Ghosh, Advocate For Respondents No. 2 & 3 : Mr. Alokendu Bandyopadhyay, Advocate Dated : 26 Nov 2018 ORDER We have heard the learned counsel for the parties and perused the impugned order dated 11.05.2017 passed by the State Consumer Disputes Redressal Commission West Bengal (hereinafter referred to as 'the State Commission'), whereby the appeal was disposed of with certain modifications in the order passed by the District Consumer Forum. The modification was to the effect that the complainants - respondents no. 1 and 2 shall pay balance consideration of Rs. 6,50,000/- in place of Rs. 5,50,000/- and further the appellant therein shall have no obligation to pay Rs. 100/- per day as punitive damages.
The learned counsel for the petitioner submitted that the State Commission has wrongly arrived at a finding and the conclusion that the petitioner are liable to pay balance consideration of Rs. 6,50,000/- in place of Rs. 5,50,000/-, whereas in fact and from the documents on record, it would be fully established that the petitioners are liable to pay only a sum of Rs. 5,50,000/- and not Rs. 6,50,000/-.
Be that as it may, from a perusal of the impugned order, we find that the learned counsel who had appeared for the respondents no. 1 and 2 before the State Commission (respondents no. 1 and 2 are petitioners herein) have made a statement and admitted that an amount of Rs. 6,50,000/- is due and payable by them and on that basis, the State Commission has come to the conclusion that an amount of Rs. 6,50,000/- is due and payable as a balance consideration by the petitioners herein.
The learned counsel for the petitioner stated that a wrong concession/admission was made by the learned counsel appearing for the petitioner herein before the State Commission.
Be that as it may, in view of the principles laid down by the Hon'ble Supreme Court in the case of State of Maharashtra vs. Ramdas Shrinivas Nayak & Anr., AIR 1982 SC 1249, any concession/admission made by a counsel or recorded in the court below is final and binding. The appellate court or the revisional court cannot go beyond it and the only remedy available in such a case is to move the court or authority to rectify the mistake. For ready reference the principles laid down in the aforesaid case is reproduced below:
"But, in the present case, we do not propose to grant special leave under Art. 136 of the Constitution, solely in order to consider this question firstly because the Criminal Revision a Application itself has been dismissed by the High Court and secondly-and this is important-there was an express concession made in the High Court by the Respondents that in the situation presented by the facts of the present case, the Governor should act in the exercise of his individual discretion.
Gadgil, J. referred to the concession in the following words :-
"However, I may observe at this juncture itself that at one stage it was expressly submitted by the learned counsel on behalf of the respondent that in case if it is felt that bias is well apparently inherent in the proposed action of the concerned Ministry, then in such a case situation notwithstanding the other Ministers not being joined in the arena of the prospective accused, it would be a justified ground for the Governor on his own, independently and without any reference to any Ministry. to decide that question. Kotwal, J. put it even more explicitly and said: "...At one stage it was unequivocally submitted by the learned counsel on behalf of the respondents in no uncertain terms that even in this case notwithstanding there being no accusation against the Law Minister as such if the court feels that in the nature of things a bias in favour of the respondent and against a complainant would be manifestly inherent, apparent and implied in the mind of the Law 12 Minister, then in that event, he would not be entitled to consider complainant's application and on the equal footing even the other Ministers may not be qualified to do so and the learned counsel further expressly submitted that in such an event, it would only the Governor, who on his own, independently, will be entitled to consider that question."
When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submissions made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation".(1) We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. (2) That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate (I) Per Lord Atkinson in Somasundaran v. Subramanian, A.I.R 1926 P.C. 136.
(2) (Per Lord Buckmaster in Madhusudan v. Chanderwati, A.I.R. 1917 P.C. 30.
13 Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.
In Rev. Mellor, 7 Cox. P.C. 454 Martin was reported to have said: "we must consider the statement of the learned judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity".
In Ring Emperor v. Barendra Kumar Ghose (1): said, ".. these proceedings emphasise the importance of rigidly maintaining the rule that a statement by a learned judge as to what took place during the course of a trial before him is final and decisive; it is not to be criticised or circumvented; much less is it to be exposed to animad version".
In Sarat Chandra v. Bibhabati Debi (2) Sir Asutosh Mookerjee explained what had to be done:
"It is plain that in cases of this character where a litigant feels aggrieved by the statement in a judgment that an admission has been made, the most convenient and satisfactory course to follow, wherever practicable, is to apply to the Judge without delay and ask for rectification or review of the judgment"
So the judges, record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the judge himself, but nowhere else.
In view of the foregoing discussions and applying the principles laid down by Hon'ble Supreme Court in the case of Ramdas Shrinivas Naik (supra), we cannot go beyond the admission made by the learned counsel for respondents no. 1 and 2, before the State Commission who are the present petitioners, regarding liability for payment of Rs. 6,50,000/-. However, it will be open for the petitioners to take appropriate proceedings in accordance with law before the State Commission.
Subject to the aforesaid directions, the revision petition is dismissed.
......................J R.K. AGRAWAL PRESIDENT ...................... DR. S.M. KANTIKAR MEMBER