Calcutta High Court (Appellete Side)
For The vs Dcm Ltd & Ors.) on 25 March, 2011
Author: Dipankar Datta
Bench: Dipankar Datta
1
03.11
ab
C.O. 1569 of 2010
With
C.A.N. 2245 of 2011
With
C.A.N. 2251 of 2011
Mr. Abhijit Gangopadhyay,
... for the petitioners/applicants
Mr. U.S. Bhattacharyya,
... for the opposite party
While hearing the application for restoration together with
an application for condonation of delay in filing such
application, a point was taken by Mr. Bhattacharyya, learned
advocate for the opposite party in the revisional application that
the delay in filing the application for restoration has not been
properly explained and that, he wishes to file counter affidavit
dealing with the plea set up in the application for condonation of
delay.
I have perused the application for restoration and also for
condonation of delay. It appears to me that the fact that the
revisional application did not appear in the monthly list of
September, 2010, as directed earlier, but appeared in the monthly
list of November, 2010, without any prayer for enlistment thereof
by the learned advocate for the applicants resulted in his failing
to notice such enlistment and consequently, the revisional
application was dismissed for default. Further, belated filing of
the restoration application was caused due to ignorance of the
learned advocate for the petitioners that the revisional
application was dismissed on 01.12.2010.
2
In my view, a litigant ought not to suffer for laches or
negligence or mistake of his learned advocate. Keeping the same in
mind, I have no hesitation to hold that cause shown for not filing
the restoration application within time is sufficient.
Reasons shown for non appearance before the Court on
01.12.2010also being sufficient, I recall the said order dated 01.12.2010 and direct that the revisional application shall be restored to its original file and number.
The application for condonation of delay being C.A.N. 2251 of 2011 and the application for restoration being C.A.N. No. 2245 of 2011 stand allowed.
The revisional application is now taken up for consideration on merits.
It appears that the opposite party had approached the District Consumer Disputes Redressal Forum, Paschim Medinipur with a complaint, registered as Complaint Case No. 57/2009. The District Forum dismissed the complaint case on contest with cost of Rs. 2,000/-.
The opposite party carried the order of the District Forum in appeal before the State Consumer Disputes Redressal Commission, West Bengal. The appeal was registered as S.C. Case No. FA/2009/405. By its order dated 22.02.2010, the State Commission allowed the appeal on contest with cost. The order under appeal was set aside. It was held that the opposite party was entitled to get 75% of the sum assured along with interest @ 8% p.a. from the date of filing the complaint till entire payment. The opposite 3 party was also entitled to get litigation cost of Rs. 1,000/-. Payment was directed to be made within 45 days, failing which the total amount would carry interest @ 10% for the default period.
This order of the State Commission is under challenge in the present revisional application.
A learned Judge of this Court considered the revisional application on 27.07.2010. It was directed to be listed as "Motion" in the monthly list of September, 2010. Proceedings for execution of the order of the State Commission initiated by the opposite party were stayed unconditionally for a period of two weeks subject to deposit of the decretal amount by the petitioners in the executing Court. It was made clear that in the event the decretal amount is deposited, the interim stay shall continue till disposal of the revisional application. It was also made clear that if the petitioners deposited the decretal amount, the opposite party shall not be entitled to withdraw the same without the leave of the Court. There was a further direction for investment of the amount in a short term fixed deposit with any nationalized bank by the executing Court and such deposit shall be renewed from time to time till disposal of the revisional application.
The petitioners did not deposit the decretal amount with the executing Court; instead, a cheque allegedly not constituting entirety of the decretal amount was submitted before the executing Court drawn in favour of the opposite party. Ultimately, however, the cheque has not been handed over to the opposite party. It was at this stage that the revisional application was dismissed for default by the order dated 01.12.2010.
4Mr. Gangopadhyay, learned advocate for the petitioners contends that the opposite party not being a consumer, there was no valid consumer dispute, which could have been entertained and decided by the fora under the Consumer Protection Act, 1985. According to him, the District Forum had rightly dismissed the complaint but the State Commission erred in the exercise of its jurisdiction in holding that the complaint case was maintainable.
Attention of Mr. Gangopadhyay was drawn to Section 21 of the Act, which provides that an order of the State Commission would be subject to review before the National Consumer Disputes Redressal Commission. Mr. Gangopadhyay by referring to the decisions reported in AIR 1991 Cal 120, (2007) 2 SCC 275, (2008) 14 SCC 58 and (2005) 13 SCC 498(4) argues that an alternative remedy does not absolutely bar the jurisdiction of the Court under Article 227 of the Constitution and in respect of extra-ordinary situations, the Court would be justified in entertaining the application under Article 227 of the Constitution despite availability of alternative remedy. He also contends that the remedy available before the National Commission is not a speedy and efficacious remedy which would weigh in the mind of the Court in not entertaining the revisional application.
I am afraid, I cannot concur with Mr. Gangopadhyay. It is true that existence of an alternative remedy does not oust the jurisdiction of the High Court under Article 227 of the Constitution. But it is a valid consideration as to whether having regard to a remedy provided by a special statute the High Court would at all entertain an application preferred by the aggrieved party under Article 227 of the Constitution.
5In the decision reported in 2010 AIR SCW 4229 (Om Prakash Saini Vs. DCM Ltd & Ors.), the Supreme Court in paragraph 12 has held as follows:
"We have considered the respective submissions. The 1986 Act was enacted to provide for better protection of the interests of consumers by making provisions for establishment of consumer councils and other authorities for settlement of consumer disputes and adjudication thereof. The 1986 Act is a complete Code unto itself. It defines the various terms like 'consumer', 'consumer dispute', 'defect', 'deficiency', 'goods', 'manufacturer', 'restrictive trade practice', 'service', 'unfair trade practice'. It provides for establishment of consumer councils and adjudicatory forums at the District, State and National levels. Any person aggrieved by an order passed by the District Forum can file an appeal before the State Commission. If he is not satisfied with the order of the State Commission, a further remedy is available by way of revision before the National Commission. If the complaint is decided by the State Commission, the aggrieved person can file an appeal before the National Commission. Elaborate procedure has been laid down for filing of the complaints and disposal thereof. Since the 1986 Act is a special statute enacted by the Parliament for better protection of the interest of consumers and a wholesome mechanism has been put in place for adjudication of consumer disputes, the remedy of appeal available to a person aggrieved by an order of the State Commission cannot but be treated as an effective alternative remedy."
Though a remedy by way of appeal in the present case is not available to the petitioners, a remedy by way of revision is 6 clearly available. The Act being a special statute and being a complete Code in itself laying down the remedy of an aggrieved person, who is dissatisfied with an order passed by any of the fora competent to deal with complaints filed by consumers, who are either not satisfied with the goods supplied or service provided, it would be improper to derail the procedure envisaged in the Act. No exceptional case for exercise of discretion has been demonstrated. Whether or not the opposite party was a consumer entitled to protection is a question that can be decided by the National Commission in terms of Section 21 of the Act.
In this connection, I may also refer to the decision of the Supreme Court reported in (2003) 3 Supreme Court Cases 524 (Sadhana Lodh Vs. National Insurance Co. Ltd. and another) where in paragraph 6, it has been held that "(W)here a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgement of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie."
In view of the above authority, I am disinclined to entertain this revisional application. The same stands dismissed without any order as to costs.
7This order of dismissal, however, shall not preclude the petitioners to avail the remedy of review before the National Commission in accordance with law, if so advised.
No opinion is expressed on the merits of the rival claims.
The petitioners shall have the liberty of taking back the certified copy of the impugned order, subject to the furnishing a photo copy of the same to the Assistant Court Officer, which shall be tagged with the application.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties at an early date.
(Dipankar Datta, J)