Bombay High Court
Wasan Automotive Pvt. Ltd. Mumbai ... vs Subhash Rajaram Vande on 5 March, 2019
Equivalent citations: AIR 2019 (NOC) 693 (BON), AIRONLINE 2019 BOM 789, 2019 (3) ABR 138, (2019) 4 MAH LJ 776
Author: Manish Pitale
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.2406 of 2018
1] Wasan Automotive Pvt. Ltd.,
Office at- Wasan House, Plot No.4,
Swastik Pari, Sion Trombay Road, Chembur,
Mumbai-400071.
Through its General Manger Shri Pitambar Baburao Bhamre.
2] Vijay Kundanlal Wasan,
Age 52, having his address at Wasan House,
Plot No.4, Swastik Pari, Sion Trombay Road,
Chembur, Mumbai-400071. .... Petitioners.
-Versus-
Subhash Rajaram Vande,
Aged about 40 years, Occ.-Business, R/o.-Vadegaon,
Tq. Balapur, Dist. Akola. .... Respondent.
Mr. T.D. Mandalekar and Mr. R.V. Malviya, Counsel for petitioners.
Mr. C.A. Joshi, Counsel for respondent.
Coram : Manish Pitale, J.
Date of reserving the judgment : 10-01-2019.
Date of pronouncing the judgment : 05-03-2019.
JUDGMENT
Rule. Rule made returnable forthwith. Heard finally with the consent of Counsel for the parties.
2. The petitioner being a Company and its Director have challenged order dated 12-10-2017, passed by the State Consumer Disputes Redressal Commission, Maharashtra, Nagpur Circuit Bench, ::: Uploaded on - 05/03/2019 ::: Downloaded on - 13/03/2019 20:20:13 ::: 2 wp 2406.18.odt Nagpur [for short, 'the State Commission'], whereby appeal filed by the petitioners has been dismissed in default. It is the case of the petitioners, that since the appeal has been dismissed in default by the State Commission and not on merits, the Writ Petition filed by them is maintainable and that the impugned order deserves to be set aside.
3. The respondent filed a complaint before the District Consumer Disputes Redressal Forum, Akola, (hereinafter referred to as 'the District Forum'] against the petitioners, stating that he had purchased a Marco Polo School Bus from the petitioners by paying valuable consideration. It was submitted before the District Forum by the respondent that the petitioners were dealers of the said vehicle and that there were serious defects in the said vehicle from the very beginning, due to which it had to be sent to the petitioners frequently for repair and service. It was claimed that certain repairs required to be carried out in the vehicle were deliberately not mentioned by the petitioners in the Service History Report and that the respondent had suffered mentally, physically and financially due to the said act of the petitioners. On this basis, the respondent sought direction against the petitioners for providing a new School Bus and to pay amount of Rs. 2 lakhs towards damages, as also Rs. 10,000/- towards litigation expenses. The petitioners appeared before the District Forum and denied the allegations made by the respondent and they claimed that they had provided free servicing for the said vehicle as per policy and that there was no question of the petitioners providing a new bus to the respondent.
4. By order dated 08-09-2014, the District Forum partly allowed ::: Uploaded on - 05/03/2019 ::: Downloaded on - 13/03/2019 20:20:13 ::: 3 wp 2406.18.odt the complaint of the respondent and directed the petitioners to provide a new Marco Polo School Bus to the respondent along with payment of Rs. 25,000/- towards physical, mental and financial damages with a further sum of Rs. 2,000/- towards litigation expenses. Aggrieved by the said order of the District Forum, the petitioners filed appeal before the State Commission under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the 'aforesaid Act']. One of the grounds raised in the appeal was that the complaint filed by the respondent ought not to have been entertained by the District Forum, because manufacturer of the said vehicle i.e M/s Tata Motors Limited was not made an opposite party in the complaint. It was contended that the District Forum could not have given direction of providing new bus to the respondent, when the manufacturer was not made a party to the proceedings. On 30-10-2014, the State Commission issued notice to the respondent and further granted interim stay to the order of the District Forum, subject to the petitioners depositing the amount to be paid to the respondent as directed by the District Forum. The petitioners deposited the said amount before the District Forum in compliance of the said order. Accordingly, interim stay operated in their favour. On 21-01-2015, the State Commission admitted the appeal, continued the interim stay and directed both the parties to file their respective written notes of arguments.
5. Thereafter, the Counsel for the respondent filed written notes of arguments before the State Commission. It has come on record that adjournments were sought on behalf of the petitioners for filing written notes of arguments. The appeal was listed before the State Commission on 12-10-2017, when none appeared on behalf of the petitioners. The ::: Uploaded on - 05/03/2019 ::: Downloaded on - 13/03/2019 20:20:13 ::: 4 wp 2406.18.odt State Commission recorded that the appeal had been adjourned on 7 dates for filing of written notes of arguments on behalf of the petitioners and yet they had failed to do so, due to which the appeal was liable to be dismissed for want of prosecution. The State Commission directed the appeal to be called again at the end of the Board and when none appeared for the appellant at that stage, by the impugned order, the State Commission dismissed the appeal in default. The petitioners claimed that they became aware of the dismissal of the appeal when notice was received in April, 2018 on an application filed by the respondent under Section 27 of the aforesaid Act, before the District Forum. Thereupon, the petitioners filed the present Writ Petition on 17-04-2018, challenging the impugned order.
6. Mr. T.D. Mandalekar, learned Counsel appearing for the petitioners, contended that the petitioners were entitled to challenge the impugned order passed by the State Commission by invoking writ jurisdiction of this Court because firstly, the impugned order passed by the Bench comprising of a Single Member of the State Commission was an order passed without jurisdiction and secondly, such an order dismissing the appeal in default and not on merits could not be made subject matter of a Revision Petition before the National Consumer Disputes Redressal Forum, New Delhi, under Section 21(b) of the aforesaid Act. It was submitted that on these two grounds the present Writ Petition was maintainable and that the petitioners had a strong case to demonstrate that the impugned order was unsustainable even on merits. According to the learned Counsel, after the appeal was admitted before the State Commission, the dealership agreement of the petitioners had expired and ::: Uploaded on - 05/03/2019 ::: Downloaded on - 13/03/2019 20:20:13 ::: 5 wp 2406.18.odt in August, 2015, the dealership establishment had been completely closed down. It was submitted that this resulted in the Advocate appearing for the petitioners before the State Commission not being able to obtain instructions from the petitioners. As a consequence, the appeal stood adjourned on certain dates before the State Commission and the petitioners remained unaware about dismissal of the appeal in default by the impugned order. It was contended that when the respondent filed application under Section 27 of the aforesaid Act before the District Forum, and notice of the same was received by the petitioners, that they become aware of dismissal of the appeal and thereafter, they immediately filed the present Writ Petition. It was submitted that the petitioners had a very strong case in the appeal before the State Commission because the complaint filed by the respondent before the District Forum was fundamentally defective, in the absence of manufacturer of the vehicle being made party. On this basis, it was submitted that it would be in the interest of justice that the impugned order is set aside and the appeal is directed to be heard and disposed of on merits. The learned Counsel for the petitioners relied on number of judgments on the aspect of maintainability of the Writ Petition, which shall be considered herein below.
7. Per contra, Mr. C.A. Joshi, learned Counsel appearing for the respondent, submitted that the Writ Petition was not maintainable in view of the alternative remedy available to the petitioners of filing Revision Petition before the National Commission, under Section 21 (b) of the said Act. It was submitted that as per the law laid down by the Hon'ble Supreme Court and subsequently followed in a number of judgments, in spite of availability of alternative remedy, this Court exercised its writ jurisdiction in three ::: Uploaded on - 05/03/2019 ::: Downloaded on - 13/03/2019 20:20:13 ::: 6 wp 2406.18.odt contingencies firstly, where the Writ Petition sought enforcement of any fundamental rights, secondly, where there was failure of principles of natural justice and thirdly, where the impugned order was wholly without jurisdiction. It was submitted that the petitioners had failed to demonstrate how their case fell within any of the aforesaid three contingencies and that therefore, the Writ Petition was not maintainable. It was submitted that perusal of the impugned order would show that on as many as 7 dates the appeal had been adjourned and yet the petitioners had failed to file written notes of arguments and that after granting sufficient opportunity to the petitioners, the State Commission was constrained to dismiss the appeal in default. It was submitted that remedy of filing Revision Petition was certainly available to the petitioners and that therefore, the Writ Petition deserved to be dismissed as not maintainable. It was submitted that the petitioners had failed to demonstrate any special reasons as to why the Writ Petition was required to be entertained or as to why the impugned order deserved to be set aside. On this basis, the learned Counsel submitted that the Writ Petition deserved to be dismissed.
8. Heard Counsel for the parties and perused the record. The basis for the contention raised on behalf of the petitioners that the impugned order is without jurisdiction, is that a Member of the State Commission sitting singly could not have dismissed or disposed of the appeal filed by the petitioners. In this regard, the learned Counsel placed reliance on Section 14 read with Section 18 of the aforesaid Act. It was contended that by the application of the aforesaid two provisions, it was evident that the appeal could have been disposed of by the President of the State Commission sitting with at least one more member and that the ::: Uploaded on - 05/03/2019 ::: Downloaded on - 13/03/2019 20:20:13 ::: 7 wp 2406.18.odt impugned order being passed a Bench of Single Member of the State Commission was rendered without jurisdiction. In this regard, the learned Counsel appearing for the petitioners placed reliance on an order passed by the State Commission dated 11-03-2011 in First Appeal No.A/14/363 (Vasan Automobiles Ltd., Akola and another vs Subhash Rajaram Vande). In the said judgment, the State Commission has held that quorum of the District Forum is President and two Members and in an exceptional case, if one of the Members is absent, the District Forum can consist of President and one Member who can dispose of cases. The said view of the State Commission was based on interpretation of Section 14 (2) and (2-A) of the said Act by placing reliance on the same. It was contended on behalf of the petitioners that since Section 18 of the said Act lays down that the provisions of Sections 12, 13 and 14 of the said Act and the Rules made therein for disposal of complaint by the District Forum, shall be applicable to disposal of disputes by the State Commission, an appeal could not be disposed of or dismissed by a Bench consisting of a Single Member of the State Commission.
9. The said contention raised on behalf of the petitioners ignores Section 16(1-B)(i) and (ii) of the said Act. The said provision reads as follows :-
"16. Composition of the State Commission.-- (1B) (i) The jurisdiction, powers and authority of the State Commission may be exercised by Benches thereof.
(ii) A Bench may be constituted by the President with one or more members as the President may deem fit."::: Uploaded on - 05/03/2019 ::: Downloaded on - 13/03/2019 20:20:13 :::
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10. A bare perusal of the above quoted provisions shows that the jurisdictional powers and authority of the State Commission can be exercised by Benches thereof and a Bench may be constituted by the President of the State Commission with one or more Members as the President may deem fit. A proper reading of the aforesaid section clearly shows that the President of the State Commission can certainly constitute a Bench consisting of a Single Member of the State Commission. As regards the contention raised on behalf of the petitioners based on Section 18 of the said Act, a perusal of the aforesaid provision shows that Sections 12, 13 and 14 of the said Act and the Rules framed thereunder for disposal of complaint by the District Forum shall be applicable to disposal of disputes before the State Commission. A proper reading of the said provision clearly shows that Section 18 of the said Act lays down the procedure applicable to the State Commission when it considers original complaints filed before it. The said procedure would not apply to the appeals that arise from orders passed by the District Forum and therefore, there is no substance in the contention raised on behalf of the petitioners. In fact, a perusal of the aforesaid judgment of the State Commission relied upon by the learned Counsel for the petitioners in the case of Vasan Automobiles Ltd., Akola and another vs Subhash Rajaram Vande (supra), shows that the State Commission was considering the issue of procedure to be adopted by the District Forum under Section 14 of the said Act for disposal of an original complaint. The said judgment can be of no assistance to the petitioners to claim that the impugned order passed by a Bench consisting of Single Member of the State Commission, was without jurisdiction. Therefore, on this ground, it cannot be said that the Writ Petition of the petitioners is maintainable before this Court.
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11. The other ground raised on behalf of the petitioners while insisting that there is no alternative remedy in the form of Revision Petition under Section 21(b) of the aforesaid Act before the National Commission, is based on an assertion that a Revision Petition would be maintainable only against an order passed by the State Commission while disposing of an appeal on merits and not against an order dismissing an appeal in default. Section 21 (b) of the said Act reads as follows :-
"Section 21 Jurisdiction of the National Commission-
(a)------------------
(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."
12. A perusal of the said provision nowhere indicates that a Revision Petition would be maintainable before the National Commission only against orders passed by the State Commission disposing of appeals on merits. Even an order passed by the State Commission dismissing an appeal in default could very well be made subject matter of challenge in a Revision Petition before the National Commission. The learned Counsel for the petitioners was unable to support the said contention raised on behalf of the petitioners. In this situation, the learned Counsel for the petitioners referred to and relied upon a number of judgments to contend ::: Uploaded on - 05/03/2019 ::: Downloaded on - 13/03/2019 20:20:13 ::: 10 wp 2406.18.odt that Writ Petitions in similar circumstances had been entertained by this Court and that therefore, the present Writ Petition filed by the petitioners was maintainable.
13. On going through the said judgments relied upon by the learned Counsel for the petitioners, it was found that in judgments passed by this Court in the cases of Hemlata w/o Kantilal Thole vs United India Insurance Co.Ltd (W.P. No.8401 of 2013), Kapurchand Kotechan Urban Co-Op. Credit Society Ltd, Bhusawal and another vs Mangilal s/o Bhikchand Jain (W.P. No.531 of 2014), The Branch Manager, State Bank of India, Dhondakha Branch vs Dharmaraj Chindha Patil (W.P.No.2811 of 2015), Kamlakar Ramsa Chawre vs State Consumer Disputes Redressal Commission, Maharashtra Circuit Bench at Nagpur and others (W.P. No.2697 of 2012), Shashikala Rameshchandra Sinha (Dead) through Lrs. And others vs Ram Ramprasad Rathi (W.P. No.5805 of 2015) and Ashtavinayak developers through is partners and others vs Gulam Mustafa Khan s/o Gulam Ahmad Khan and another (W.P. No.864 of 2017), the question of availability of alternative remedy under Section 21(b) of the aforesaid Act, was not even raised and therefore, there was no discussion and finding on the very maintainability of the Writ Petitions. Thus, the said judgments can be of no assistance to the petitioners.
14. In other judgments relied upon by the learned Counsel for the petitioners in the cases of Anita Chandrakant Patil vs The Circle Officer, LIC of India and another (WP No.7718 of 2015), Shivaji s/o Rangnath Khilari vs The Manager, Wasan Automobiles and another ::: Uploaded on - 05/03/2019 ::: Downloaded on - 13/03/2019 20:20:13 ::: 11 wp 2406.18.odt (W.P. No.9793 of 2014), Miss. Radhika d/o Rajesh Mandhani vs Dr. Dilip Pathwardhan and another (WP No.3985 of 2012), The Assistant Engineer, M.S.E.B. Risod, District Washim and another vs Bhikaji Bhaurao Gavhane and others (WP No.4493 of 2013), M/s Ankur Seeds P. Ltd., vs Ashok s/o Janardhan Dhumale and another (WP No.6286 of 2013) and Ganpat s/o Punjaji Chouke vs Provident Fund Commissioner and others (WP No.330 of 2016), this Court referred to the availability of the aforesaid alternative remedy under Section 21(b) of the aforesaid Act, and yet entertained the Writ Petitions, noting in each case that there were special circumstances that required exercise of writ jurisdiction, despite availability of the alternative remedy. In the said cases, this Court found that there were senior citizens or minors or ladies who were challenging the orders of dismissal in default passed by the State Commission and in such circumstances, despite availability of the said alternative remedy, this Court deemed it fit to exercise writ jurisdiction to entertain the Writ Petitions.
15. Thus, it becomes clear that although alternative remedy, in the form of Section 21(b) of the aforesaid Act, was available to the petitioners in the present case, they chose to file the present Writ Petition. It could be entertained by this Court, if the petitioners also are able to demonstrate certain special facts and circumstances for exercise of writ jurisdiction. The learned Counsel for the respondent has insisted that the Writ Petition could be entertained by this Court despite availability of alternative remedy, only in the three contingencies referred to by him. In this context, the learned Counsel relied upon judgment of the Hon'ble Supreme Court in the case of Harbanslal Sahnia and another vs Indian ::: Uploaded on - 05/03/2019 ::: Downloaded on - 13/03/2019 20:20:13 ::: 12 wp 2406.18.odt Oil Corporn. Ltd and others, (2003) 2 SCC 107. But, a perusal of paragraph 7 of the said judgment shows that the Hon'ble Supreme Court has laid down that the High Court may exercise writ jurisdiction despite availability of alternative remedy in at least three contingencies. Thereafter, the Hon'ble Supreme Court has stated three contingencies that are referred to and relied upon by the learned Counsel for the respondents. But, the use of the words "at least three contingencies", shows that there could be other circumstances also wherein writ jurisdiction could be exercised by the High Court. In this context, the judgment relied upon by the learned Counsel for the respondent in the case of Commissioner of Income Tax and others vs Chhabil Dass Agarwal, reported at (2014) 1 SCC 603 becomes relevant. Although in the said case, the Hon'ble Supreme Court held that a Writ Petition was not maintainable when a statutory remedy was available, in paragraph 11 of the said judgment, it was held as follows :-
"15. 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 ::: Uploaded on - 05/03/2019 ::: Downloaded on - 13/03/2019 20:20:13 :::
13 wp 2406.18.odt 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. vs. Mohammad Nooh, AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433; Harbanslal Sahnia vs. Indian Oil Corpn. Ltd., (2003) 2 SCC 107; State of H.P. vs. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499).
16. Therefore, it becomes clear that the High Court not entertaining a Writ Petition when an alternative remedy is available, is a rule of self imposed limitation, being more a rule of prudence and policy, rather that being a rule of law. The High Court has discretion to exercise writ jurisdiction even when an alternative remedy is available to the petitioners. But such discretion could be exercised in favour of the petitioners, if they are able to make out an exceptional case showing that special facts and circumstances existed for exercise of such jurisdiction.
17. Applying the aforesaid test to the facts of the present case, it will have to be determined as to whether the present Writ Petition deserves to be dismissed as not maintainable. It has come on record that the petitioners had filed appeal before the State Commission challenging the order passed by the District Forum, wherein notice was issued and ::: Uploaded on - 05/03/2019 ::: Downloaded on - 13/03/2019 20:20:13 ::: 14 wp 2406.18.odt interim stay was granted, subject to the petitioners depositing the entire amount before the District Forum in terms of order passed by the said Forum. Admittedly, the petitioners deposited the entire amount before the District Forum. Consequently, the appeal was admitted by the State Commission on 21-01-2015. The parties were directed to file their respective written notes of arguments. It has also come on record that the dealership agreement of the petitioners expired in the month of July, 2015, and that the entire establishment of the dealership was completely closed down in August, 2015. The petitioner handed over possession of the dealership premises to the landlord as a consequence of closing down of the dealership establishment. In these circumstances, it was contended on behalf of the petitioners that their Advocate was unable to file written notes of arguments and the appeal was adjourned from time to time. The petitioners were under the impression that since the appeal was admitted and interim relief was granted in their favour as they had deposited the entire amount before the District Forum, the appeal would be considered on merits by the State Commission. As their Advocate could not contact them, the petitioners remained unaware of dismissal of their appeal in default on 12-10-2017.
18. It is the case of the petitioners, that after the appeal was dismissed in default by the impugned order, the respondent filed application under Section 27 of the aforesaid Act before the District Forum for implementation of order passed by the said Forum. In this application, it is found that the respondent himself stated that notices sent by him after dismissal of the appeal in default to the petitioners, were returned with the remarks that "the Company had closed down" and that the "addressee ::: Uploaded on - 05/03/2019 ::: Downloaded on - 13/03/2019 20:20:13 ::: 15 wp 2406.18.odt had left". This lends credence to the contentions raised on behalf of the petitioners before this Court, that they were unaware of passing of the impugned order, whereby the appeal was dismissed in default. The record shows that it was when the Registrar of the District Forum sent notice to the petitioner no.2. (Director of the Company) to his address at Mumbai through the Police Commissioner of Mumbai, on 20-03-2018, which was returnable on 07-04-2018, that time the petitioners became aware for the first time about filing of the application under Section 27 of the aforesaid Act, due to dismissal of their appeal in default by the impugned order. The record further shows that upon receipt of the aforesaid notice/ summons, through the Commissioner of Police, Mumbai, the petitioners immediately filed present Writ Petition on 17-04-2018, to challenge the impugned order passed by the State Commission. While issuing notice on 24-04-2018, this Court granted ad-interim relief to the petitioners of stay of further proceedings in the application filed by the respondent before the District Forum, under Section 17 of the said Act. These facts do show that there exist special facts and circumstances in the present case for the petitioners to invoke writ jurisdiction of this Court under Article 226 of the Constitution of India. This, coupled with the fact that since the appeal of the petitioners was admitted by the State Commission with interim relief in their favour for being considered and disposed of on merits, the State Commission could have considered the appeal on merits in view of the documents available on record and yet it dismissed the appeal only on the ground that written notes of arguments had not been filed on behalf of the petitioners despite several adjournments. In this backdrop, the main ground raised in the appeal before the State Commission becomes crucial as the petitioners have pointed out that the complaint filed by the ::: Uploaded on - 05/03/2019 ::: Downloaded on - 13/03/2019 20:20:13 ::: 16 wp 2406.18.odt respondent before the District Forum itself was fundamentally defective and not maintainable, because the manufacturer of the vehicle was not made party, dispite the fact that a specific prayer for providing a new vehicle was made on the ground that there were serious manufacturing defects. This aspect goes to the very root of the matter, thereby showing that this is another circumstance indicating that grave prejudice was caused to the petitioners by dismissal of their appeal in default by the State Commission.
19. In view of the above, this Court holds that although alternative remedy of filing Revision Petition under Section 21(b) of the aforesaid Act was available to the petitioners to challenge the impugned order, in the peculiar facts and circumstances of the present case, the Writ Petition filed by the petitioners is maintainable. As discussed above, the facts and circumstances of the present case show, that the State Commission ought to have decided the appeal of the petitioners on merits, in stead of dismissing it in default.
20. Nonetheless, it cannot be ignored that inconvenience has been caused to the respondent, because of the number of adjournments taken on behalf of the petitioners after the appeal was admitted before the State Commission. The respondent deserves to be compensated for the inconvenience caused to him. Hence, this Court is of the opinion that the petitioners need to pay costs to the respondent.
21. Accordingly, the present Writ Petition is allowed. The impugned order passed by the State Commission, is quashed and set ::: Uploaded on - 05/03/2019 ::: Downloaded on - 13/03/2019 20:20:13 ::: 17 wp 2406.18.odt aside. The parties are relegated to appear before the State Commission. The appeal of the petitioners is directed to be decided by the State Commission on merits expeditiously and in any case within a period of three months from today. The parties shall appear before the State Commission on 11-03-2019. In the facts and circumstances of the present case, the petitioners shall pay costs of Rs. 25,000/- to the respondent before 11-03-2019 and produce proof of the same before the State Commission. It is made clear that this Court has not expressed any opinion on the merits of the case of the petitioners in their appeal, which shall be decided by the State Commission in accordance with law.
22. Rule made absolute in above terms.
JUDGE Deshmukh ::: Uploaded on - 05/03/2019 ::: Downloaded on - 13/03/2019 20:20:13 :::