National Consumer Disputes Redressal
Divya Chadri vs President, Madhuvana House Building ... on 17 August, 2022
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI SECOND APPEAL NO. 25 OF 2022 (Against the Order dated 27/01/2022 in Appeal No. 780/2021 of the State Commission Karnataka) 1. DIVYA CHADRI ...........Petitioner(s) Versus 1. PRESIDENT, MADHUVANA HOUSE BUILDING SOCIETY LTD. ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT
For the Petitioner : For the Petitioner : Mr. R. Rajgopalan, Advocate For the Respondent :
Dated : 17 Aug 2022 ORDER
1. The present Second Appeal under Section 51(2)) of the Consumer Protection Act, 2019 (for short "the Act"), has been preferred by the Appellant/Complainant assailing the Order dated 27.01.2022, passed by the Karnataka State Consumer Disputes Redressal Commission, Bengaluru (for short "the State Commission") in Appeal No. 780 of 2021. By the Impugned Order, the Complainant/Decree Holder was directed to recover the compensation amount first and further directed the Judgment Debtor/Opposite Party to allot alternative site to the Complainant within six months from the date of approval of the new layout to be formed and handover possession to the Complainant by collecting the amount from the Complainant as per the revised rate, if any. The Executing Court/District Commission was given the said directions to dispose of the Execution proceedings pending being proceedings enumerating from EA No. 193 of 2018. For ready reference the operative part of the Order dated 27.01.2022 passed by the State Commission is reproduced below:-
" When such being the situation, to protect the interest of both parties, we are of the view that justice may be done, if the Complainant/Respondent/DHr is directed to first recover compensation amount as awarded by this Commission, if it is not yet recovered and for remaining portion of the order, Commission is hereby directed OP/Respondent/JDr to allot alternative site to the Complainant/Respondent/Dhr within six months from the date of approval of the new lay out to be formed and hand over possession to the Complainant/ Respondent/Dhr, by collecting the amount from Complainant as per revised rate, if any. With these observations, Appeal No. 780/2021 is disposed off accordingly, with a direction to the District Commission to dispose off E.A.No.193/2018 as observed hereinabove."
2. Succinctly put, the material facts given rise to the filing of present Appeal are that the Complainant filed Consumer Complaint before the District Forum being CC No. 1129 of 2016, seeking allotment of Unit at site, which came to be allowed by the District Forum Vide Order dated 27.02.2017 directing the Respondent Company to refund the entire amount deposited along with interest, compensation and costs. Upon Appeal being preferred by the Complainant/Decree Holder before the State Commission via Appeal No. 734 of 2017, the State Commission, Vide Order dated 18.06.2018, directed Respondent Company to handover possession of the scheduled site or to provide alternative site. Execution Petition being E.A. No. 193 of 2018 came to be filed by the Decree Holder/Complainant before the District Commission, wherein, the Respondent Company filed IA under Section 13 (3B) 26 of the Consumer Protection Act, 1986 Read with Order VII, Rule XI of the Civil Procedure Code, seeking to dismiss the Petition. For reasons assigned therein, the Application was dismissed by the District Commission Vide Order dated 14.09.2021 and Execution Application was directed to be listed for Compliance of the Order passed in First Appeal No. 734/2017. The said Order was challenged by the Judgement Debtor by filing First Appeal No. 780 of 2021 which was disposed of vide Order 27.01.2022 referred to above.
3. I have heard the learned Counsel for the Applicant, perused the Memo of Appeals, various Orders passed by the State Commission and the District Commission and also other documents on record.
4. Earlier, the Applicant had preferred a Revision Petition before this Commission being Revision Petition 547 of 2022 assailing the Order dated 27.01.2022 passed by the State Commission. The said Revision Petition was dismissed by this Commission following the law laid down by the Hon'ble Supreme Court in Karnataka Housing Board Vs. K.A. Nagamani, Civil Appeal No. 4631 of 2019, decided on 06.05.2019 , wherein it had been held that a Revision Petition against the Order passed by the State Commission arising out of the Execution Proceeding is not maintainable as the Consumer Complaint case is not pending.
05. Learned Counsel appearing for the Appellant/Applicant submitted that the State Commission was not justified in an Appeal against the Order arising out of the Execution Proceedings, to modify the Decree which has attained finality. He, therefore, submitted that the substantial question of law arises out of the Order of the State Commission against which the Appeal under Sub Section 2 of the Section 51 of the Consumer Protection Act, 2019 (For short, the "Act 2019") is maintainable before this Commission. In support of his plea, he has placed reliance upon the following decisions:-
(i) Hero Vinoth Vs. Seshammal - (2006) 5 SCC 545
(ii) State Bank of India Vs. S.N. Goyal - (2008) 8 SCC 92
(iii) Sir Chunilal V. Mehta and Sons Ltd. Vs. Century Spinning and Manufacturing Co. Ltd. - AIR 1962 SC 1314
(iv) Govindaraju Vs. Mariamman - (2005) 2 SCC 500
(v) Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar And Ors. - (1999) 3 SCC 722
(vi) Ratanlal Bansilal and Ors. Vs. Kishorilal Goenka & Ors. - (1992) SCC Online CAL 267
06. There cannot be any dispute or two opinions on the principles laid down by the Hon'ble Supreme Court in the aforesaid decisions viz-a-viz, an Appeal lies when a substantial question may arise in the given facts of the case. However, it is not in dispute that the Applicant/Appellant has approached this Commission though under Sub-Section 2 of the Section 51 of the Act, 2019 against an Order dated 27.01.2022 passed by the Karnataka State Consumer Disputes Redressal Commission at Bengaluru, (Principal Bench) in First Appeal No. 780 of 2021 which arose out of the Execution Proceedings before the District Forum. For ready reference the provisions of Section 21 of the Consumer Protection Act, 1986, Section 47, 51, 72 and 73 of the Act 2019 are reproduced below:-
"Section 21 Jurisdiction of the National Commission --
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 and compensation, if any, claimed exceeds rupees one crore; and
(ii) appeals against the orders of any State Commission; and
(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.
Section 47. Jurisdiction of the State Commission (1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction--
(a) to entertain--
complaints where the value of the goods or services paid as consideration, exceeds rupees one crore, but does not exceed 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 does not exceed ten crore rupees;
(iii) appeals against the orders of any District Commission within the State; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Commission within the State, where it appears to the State Commission that such District Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity.
(2) The jurisdiction, powers and authority of the State Commission may be exercised by Benches thereof, and a Bench may be constituted by the President with one or more members as the President may deem fit:
Provided that the senior-most member shall preside over the Bench.
(3) Where the members of a Bench differ in opinion on any point, the points shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other members and such point or points shall be decided according to the opinion of the majority of the members who have heard the case, including those who first heard it:
Provided that the President or the other members, as the case may be, shall give opinion on the point or points so referred within a period of one month from the date of such reference.
(4) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,--
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, ordinarily resides or carries on business or has a branch office or personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided in such case, the permission of the State Commission is given; or
(c) the cause of action, wholly or in part, arises; or
(d) the complainant resides or personally works for gain.
Section 51 : Appeal to National Commission Any person aggrieved by an order made by the State Commission in exercise of its powers conferred by sub-clause (i) or (ii) of clause (a) of sub-section (1) of section 47 may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed:
Provided that the National Commission shall not entertain the appeal after the expiry of the said period of thirty days unless 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 State Commission, shall be entertained by the National Commission unless the appellant has deposited fifty per cent. of that amount in the manner as may be prescribed.
(2) Save as otherwise expressly provided under this Act or by any other law for the time being in force, an appeal shall lie to the National Commission from any order passed in appeal by any State Commission, if the National Commission is satisfied that the case involves a substantial question of law.
(3) In an appeal involving a question of law, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the National Commission is satisfied that a substantial question of law is involved in any case, it shall formulate that question and hear the appeal on that question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the National Commission to hear, for reasons to be recorded in writing, the appeal on any other substantial question of law, if it is satisfied that the case involves such question of law.
(5) An appeal may lie to the National Commission under this section from an order passed ex parte by the State Commission Section 72 : Penalty for non-compliance of Order (1) Whoever fails to comply with any order made by the District Commission or the State Commission or the National Commission, as the case may be, shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty-five thousand rupees, but which may extend to one lakh rupees, or with both.
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the District Commission, the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of first class for the trial of offences under sub-section (1), and on conferment of such powers, the District Commission or the State Commission or the National Commission, as the case may be, shall be deemed to be a Judicial Magistrate of first class for the purposes of the Code of Criminal Procedure, 1973.
(3) Save as otherwise provided, the offences under sub-section (1) shall be tried summarily by the District Commission or the State Commission or the National Commission, as the case may be Section 73 Appeal Against Order Passed U/S 72 (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, where an order is passed under sub-section (1) of section 72, an appeal shall lie, both on facts and on law from--
(a) the order made by the District Commission to the State Commission;
(b) the order made by the State Commission to the National Commission; and
(c) the order made by the National Commission to the Supreme Court.
(2) Except as provided in sub-section (1), no appeal shall lie before any court, from any order of a District Commission or a State Commission or the National Commission, as the case may be.
(3) Every appeal under this section shall be preferred within a period of thirty days from the date of order of a District Commission or a State Commission or the National Commission, as the case may be:
Provided that the State Commission or the National Commission or the Supreme Court, as the case may be, may entertain an appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period of thirty days."
07. Hon'ble Supreme Court in the case of Karnataka Housing Board (supra) has held that the Revision Petition U/S 21(b) of the Consumer Protection Act, 1986 is not maintainable before this Commission which may be filed against an Order passed by the State Commission in Appeal arising out of the Execution Proceedings, as the Consumer Complaint is not pending. Principle laid down by the Hon'ble Supreme Court in Karnataka Housing Board (supra) would also be applicable to an Appeal preferred under Sub Section 2 of the Section 51 of the Act, 2019 for the simple reason that Section 51 of the Act, 2019 provides for filing an Appeal against an Order passed by the State Commission in exercise of its power conferred by Sub Clauses (i) and (ii) of Clause (a) of Sub Section (1) of Section 47 of the Act 2019. Similarly, under Sub Clause (iii) of Clause (a) of Sub Section (1) of Section 47 of the Act 2019, the State Commission has been given jurisdiction to pass Order in an Appeal against the Orders of any District Commission within the State. Though, a First Appeal under Sub Section (1) of Section 51 of the Act, 2019, is not provided against an Order passed by the State Commission u/s 47 (1) (a) (iii) but a Second Appeal under Sub Section (2) of Section 51 of the Act, 2019 has been provided. It may be mentioned here that under Section 73 of the Act 2019, an Appeal has been provided against an Order passed by the District Commission under Sub Section (1) of Section 72 of the Act 2019, to the State Commission and if the Order is passed by the State Commission to the National Commission and further if the Order is passed by the National Commission to the Hon'ble Supreme Court. Thus, the Order passed by the District Commission in Execution Proceedings has to be challenged before the State Commission only and thereafter, no further Appeal lies before this Commission as Complaint is not pending. The Principles laid down by the Hon'ble Supreme Court in the case of Karnataka Housing Board (Supra) will also apply to the Appeals arising out of Execution Proceedings.
08. In view of the foregoing discussion, the plea of the Applicant/Appellant that the Second Appeal is maintainable under sub section (2) of Section 51 of the Act, 2019 cannot be accepted and accordingly rejected as not maintainable. The Registry is directed to register the present case as defective Second Appeal.
......................J R.K. AGRAWAL PRESIDENT