Delhi High Court
Omaxe Buildhome Pvt Ltd vs Ibrat Faizan on 31 March, 2022
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~17(Appellate-2022 list)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 1196/2021 & CM No.46693/2021, CM No. 8352/2022
OMAXE BUILDHOME PVT LTD ..... Petitioner
Through: Mr.Saurabh Kirpal, Sr. Adv. with
Mr.Karanjot Singh Mainee, Mr. Arjun Rekhi,
Advs. and Mr.B.Mund, AR of petititoner
versus
IBRAT FAIZAN ..... Respondent
Through: Mr. S.K. Pal, Adv.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
J U D G M E N T (O R A L)
% 31.03.2022
1. This matter has been taken up on priority basis in view of the order dated 21st March, 2022, passed by the Supreme Court in SLP(C) 4281/2022. The said order reads thus:
"The jurisdiction of the High Court, under Article 227 of the Constitution of India, against the order passed by the National Consumer Disputes Redressal Commission (NCDRC) is the moot question for consideration. As the matter is pending before the High Court and the next date of hearing is reported to be 29.03.2022, we request the High Court to decide the issue with respect to the jurisdiction of the High Court, under Article 227 of the Constitution of India, against the order passed by the National Consumer Disputes Redressal Commission (NCDRC) first which may be decided on or before 18.04.2022. The decision of the High Court on the jurisdiction shall be placed before this Court on or before the next date of hearing.
Put up on 21.04.2022.Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CM(M) 1196/2021 Page 1 of 6 Signing Date:04.04.2022 16:40:44
It is agreed by learned counsel appearing for the respective parties that they shall not ask for any adjournment on any ground whatsoever before the High Court."
2. As directed by the Supreme Court, I have heard learned Counsel for the parties on the issue of maintainability of the present petition under Article 227 of the Constitution of India, and proceed to pass orders thereon.
3. Mr. Pal, learned Counsel for the respondent, first invited my attention to Section 67 of the Consumer Protection Act, 2019 ("the Act", hereinafter), which reads thus:
"67. Appeal against order of National Commission. - Any person, aggrieved by an order made by the National Commission in exercise of its powers conferred by sub-clause (i) or (ii) of clause (a) of sub-section (1) of section 58, may prefer an appeal against such order to the Supreme Court within a period of thirty days from the date of the order:
Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period:
Provided further that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person has deposited fifty per cent. of that amount in the manner as may be prescribed."
4. Clearly, Section 67 provides for appeals, to the Supreme Court, only against orders passed by the learned National Consumer Disputes Redressal Commission ("the learned NCDRC") under Section 58(1)(a)(i) Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CM(M) 1196/2021 Page 2 of 6 Signing Date:04.04.2022 16:40:44 and (ii). Section 58(1)(a) of the Act read thus:
"58. Jurisdiction of National Commission. -
(1) 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 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;
(ii) complaints against unfair contracts, where the value of goods or services paid as consideration exceeds ten crore rupees;
(iii) appeals against the orders of any State Commission;
(iv) appeals against the orders of the Central Authority; ..."
5. Mr. Pal candidly acknowledges that the impugned order of the NCDRC has not been passed under either Clause (i) or Clause (ii) of Section 58(1)(a) of the Consumer Protection Act, but has been passed under Section 58(1)(a)(iii).
6. He also acknowledges, therefore, that no appeal, under Section 57 of the Consumer Protection Act would lie to the Supreme Court against the impugned order of the learned NCDRC.Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CM(M) 1196/2021 Page 3 of 6 Signing Date:04.04.2022 16:40:44
7. Nonetheless, submits Mr. Pal, the remedy of a Special Leave Petition would always be available to the petitioner and that, therefore, while the remedy under Article 227 may not be unquestionably foreclosed, it may be worthwhile considering as to whether the petitioner should approach the Supreme Court under Article 136 of the Constitution of India.
8. He has referred me in this context to State of Karnataka v.
Vishwabharathi House Building Coop. Society1, specifically inviting attention to para 53 of the report which reads thus:
"53. The provisions relating to power to approach appellate court by a party aggrieved by a decision of the forums/State Commissions as also the power of the High Court and this Court under Articles 226/227 of the Constitution of India and Article 32 of this Court apart from Section 23 of the Act provide for adequate safeguards. Furthermore, primarily the jurisdiction of the forums/Commissions is to grant damages. In the event, a complainant feels that he will have a better and effective remedy in a civil court as he may have to seek for an order of injunction, he indisputably may file a suit in an appropriate civil court or may take recourse to some other remedies as provided for in other statutes."
9. Mr. Kirpal, learned Senior Counsel for the petitioner on the other hand, draws attention to para 41 of the report which reads as under:
"41. By reason of the provisions of the said Act, the power of judicial review of the High Court, which is a basic feature of the Constitution, has not been nor could be taken away."1
(2003) 2 SCC 412 Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CM(M) 1196/2021 Page 4 of 6 Signing Date:04.04.2022 16:40:44
10. Mr. Kirpal submits that, read in conjunction, paras 41 and 53 of the report in State of Karnataka v. Vishwabharathi House Building Coop. Society1 clearly reserve the remedies available under Articles 226 and 227 of the Constitution of India, in a case such as this. State of Karnataka v. Vishwabharathi House Building Coop. Society1, be it noted, was decided under the erstwhile Consumer Protection Act, 1986.
11. The submission of Mr Pal is obviously without merit. The remedy of special leave to the Supreme Court, that Article 136 of the Constitution of India provides, is not an "alternate remedy" in any sense of the word. An SLP is not an appeal. It is merely a petition seeking special leave to appeal. The decision whether to grant or refuse leave, that vests with the Supreme Court, is entirely discretionary. It is only if the Supreme Court deems the case one that is fit for grant of leave to appeal, and grants leave accordingly, that the SLP metamorphoses into a Civil Appeal.
12. Mr. Pal, learned Counsel for the respondent candidly submits, at this juncture that, as no remedy of appeal is available under Section 67 of the Consumer Protection Act, therefore, there would be no question of foreclosing the remedy under Article 227 before this Court. Nonetheless, he submits, the contents of the petition filed before this Court indicate that the petition is more in the nature of an appeal and, he submits, Article 227 clothes this Court not with appellate, but only with supervisory, jurisdiction.
Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CM(M) 1196/2021 Page 5 of 6 Signing Date:04.04.2022 16:40:4413. Needless to say, any party that invokes the jurisdiction of this Court under Article 227 of the Constitution subjects itself to the rigour of the provision. There can be no gainsaying the position, correctly urged by Mr Pal, that the jurisdiction of the High Court, under Article 227, is not appellate but merely supervisory. The parameters within which such jurisdiction is required to be exercised stand crystallized in the decisions of the Supreme Court in Estralla Rubber v. Dass Estate (P) Ltd 2, Garment Craft v. Prakash Chand Goel3 and Puri Investments v. Young Friends & Co.4. As to whether this case merits exercise of such jurisdiction, is an aspect which this Court would enter into when the case is heard on merits, which the Court intends to undertake immediately though not today.
14. Suffice it to state that, in view of the submissions advanced at the bar, the position in law and the extremely fair stance adopted by Mr. Pal, it is clear that the jurisdiction of this Court to deal with the present petition under Article 227 of the Constitution is not foreclosed.
15. The question of jurisdiction stands answered accordingly.
16. To hear this petition on merits, re-notify on 6th April, 2022.
C. HARI SHANKAR, J MARCH 31, 2022/kr 2 (2001) 8 SCC 97 3 2022 SCC OnLine SC 29 4 2022 SCC OnLine SC 283 Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CM(M) 1196/2021 Page 6 of 6 Signing Date:04.04.2022 16:40:44