State Consumer Disputes Redressal Commission
Smt. Sumati Arlekar, vs Shri. Gopal Mapari, on 7 February, 2012
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION PANAJI GOA Review Application No.01/2011 Smt. Sumati Arlekar, R/o. L-442, Housing Board, Davorlim, Salcete, Goa. Applicant v/s 1. Shri. Gopal Mapari, 2. M/s. Prerana Architect & Engineer, Bhavani Apartments 2nd Floor, behind Maruti Temple, Mapusa, Bardez, Goa Respondents None present for the Applicant. Adv. M. DSouza is present for the Respondent. Coram: Shri Justice N.A. Britto, President. Smt Vidhya R. Gurav, Member. Dated: 07/02/2012. ORDER
[Per Shri Justice N.A. Britto, President] The complainant/Applicant by application dated 28/11/11 seeks review of exparte order dated 31/10/11, the operative part of which reads as follows:-
The present Appeal is allowed. Accordingly, it is ordered that the impugned Order dated 25.8.2010 passed by the Lower Forum in Execution application No. 19/2007, is hereby set aside. The Execution Proceedings pending before the Lower Forum in the above Execution application are hereby quashed. The Respondent shall be at liberty to withdraw the balance amount of Rs. 25,000/- deposited before this Commission within the aforesaid period. The Respondent shall pay to the Appellant herein the cost of Rs. 2,000/- inclusive of the amount by way of cost earlier granted.
2. A preliminary objection has been taken as regards the maintainability of this review application, but before we proceed to decide the said objection some barest facts are needed to be mentioned.
3. The complainant/Applicant was to be refunded by the Respondent/O.P a sum of Rs. 1,92,650/- with interest at the rate of 12% from 19/05/04. Before the Lr. District Forum, both the parties agreed on 23/7/09 to settle the matter by payment of Rs. 2,50,000/- and apparently the matter was adjourned to make the said payment. At one stage, the O.P. was issued a notice under section 27 of the C.P. Act, 1986 and against that the O.P. preferred an appeal, being appeal No. 31/10. As can be seen from order dated 31/10/11, sought to be reviewed, the complainant/applicant did not appear and the Lr. Members of this Commission after hearing the Lr. Counsel on behalf of the Appellant/O.P. came to the conclusion that a sum of Rs. 2,25,000/- was paid to the Complainant and acknowledged on roznama sheet dated 3/6/10 and giving liberty to the complainant/applicant to withdraw the balance amount of Rs. 25,000/- deposited by the O.P. before the Commission proceeded to allow the appeal and set aside the order dated 25/08/10.
4. The complainant/applicant claims an amount of Rs. 1,01,900/- as on 3/6/10 presumably contending that since the O.P. failed to pay the sum of Rs. 2,50,000/- on 23/07/09 or thereafter.
She would be entitled to the same.
5. Shri. V. Shirodkar, Lr. Counsel on behalf of the complainant/applicant has referred the judgment of the Apex Court in New India Assurance Co. Ltd. V/s. R. Srinivasan (AIR 2000 SC 941) and also to Regulations 8 and 15 of the C.P. Regulations, 2005 and submitted that the review petition is maintainable.
6. On the other hand, Shri. M. DSouza, Lr. Advocate appearing on behalf of the O.P. has submitted that power of review is a creation of statute and in this context has placed reliance on Major C.B. Singh (AIR 1978 S.C. 1814). The Lr. Advocate has further submitted that section 13 of the C.P. Act, 1986 confers very limited powers of a civil court under C.P.C. on the Fora under the C.P. Act and therefore the State Commission has no powers of review. Lr. Advocate next refers to regulation 26 of the said Regulations and submits that in all proceedings before the consumer forum endeavours are required to be made to avoid the use of the provisions of C.P.C., 1908. Lastly Shri. DSouza has relied upon Rajeev Hitendra Pathak & others 2011 (5) ALL MR 951/2012 (1) CPR 78 wherein the Apex Court speaking through the three Lr. Judges has held that the District Forums and State Commissions have not been given any power of review and powers which has been not expressly given by the statute cannot be exercised.
7. In reply Shri. V. Shirodkar has submitted that the Honble Apex Court while rendering the said judgment in Rajeev Hitendra Pathak (supra) has not considered the provisions of Regulation 8 & 15 of the said Regulations.
8. We are entirely in agreement with the submissions made by Lr. Advocate Shri. M. DSouza. It is well settled that review is a creative of Statute and cannot be entertained in the absence of the provision therefor. This view of the Apex Court in Major C.B. Singh, AIR 1978 SC 1814 has also be followed in 2005 (13) SCC 177. The C.P. Act, 1986 did not confer any power of review either on the State Commission or the National Commission. The power of review came to be conferred on the National Commission by virtue of substitution of section 22 of the said Act which section deals with the powers and procedure applicable to the National Commission. The Parliament, in its wisdom, has chosen not to substitute section 18 which deals with the procedure applicable to the State Commission.
Section 22 with sub Section 2 came to be substituted w.e.f. 15/3/03 and there is no provision similar to sub section 2 of Section 22 in Section 18 of the said Act. In other words, Parliament in its wisdom, for the present has chosen not to confer the power of review on the State Commission. That the State Commission has no power of review is also a view held by Andhra Pradesh High Court in AIR 2005 AP 118, by the National Commission in 2011 (4) CPR 137 and now authoritatively by the Apex Court in Rajeev Hitendra Pathak (supra). The view held in Jyotsanas case (1999 4 SCC
325) has been preferred to the view held in New India Assurance Company (supra).
9. Regulations 8 and 15 have got nothing to do with conferring the power of review but have everything to do in the manner the power conferred is to be exercised.
10. In the circumstances we have no other option but to uphold the objection and dismiss the application for review, which we hereby do, with no order as to costs.
[Smt. Vidhya R. Gurav ] [Justice Shri. N. A. Britto] Member President