Upon hearing the respective Counsels, it is indubitable that the opposite party have not only initiated a civil proceeding before the Civil Court but simultaneously filed the complaint case before the District Forum under the Consumer Protection Act, 1986. The petitioner have put much stress on the fact that once the party resorted to a remedy which cannot be said to be inefficient or complete one, further remedy on the self-same cause of action is impermissible. In this regard, the Court can safely placed upon Section 3 of the Consumer Protection Act, 1986 which says that the provision of this Act shall be in addition to and not in derogation of the provision of any other law for the time being in force. The three judge bench of the Supreme Court in case of State of Karnataka -vs- Vishwabharathi House Building Coop. Society and Others; reported in (2003) 2 SCC 412 held that by reason of Section 3, the said Act supplement and not supplant the jurisdiction of the Civil Court or other statutory authorities. The right of the consumer to approach the Civil Court for necessary relief have been provided under the said Act itself, in the event, the complaint involved complicated issues requiring recording of evidence of experts. Furthermore, the relief claimed in the civil suit as narrated herein above and the relief claimed in the complaint petition before the Consumer Forum are distinct and separate which is clearly discernible from the set of facts as well as the prayers made in both the proceedings.
The civil suit is filed by the opposite party no.1 for declaration of his right as an owner of the said vehicle with consequential reliefs in form of injunctions whereas the complaint case is restricted to compensation for the alleged illegal acts of repossession by the petitioner and the damages which he suffers. This Court, therefore, does not find that both the proceedings are mutually destructive and cannot run concurrently.
Kolkata High Court (Appellete Side)
T Finance Limited - vs Anup Kumar Bera on 20 January, 2014
Citation;AIR 2014 CAl 78
The order of the State Consumer Disputes Redressal Commission passed in S.C. Case No. F.A. 68 of 2011 allowing the appeal in part and directed the compensation to be paid without recording any reasons and/or findings thereupon is assailed in this revisional application. The opposite party no.1 took a loan of Rs.11 lakhs from the petitioner for purchase of a commercial vehicle (truck), and executed Loan-cum-Hypothecation Agreement on May 30, 2008 to be paid in monthly installments. Some installments are paid but thereafter a default was committed. The petitioner further alleged that while the said vehicle was plying between Haldia and Tata with loaded vegetable oil, it was intercepted and forcible possession of the said vehicle was taken by the petitioner. The opposite party no.1 lodged an FIR with the local police station and a case was registered against the petitioner. By an order of the Chief Judicial Magistrate, Paschim Medinipur, the trucks and goods were released and the possession was handed over to the opposite party no.1 but the papers for plying the vehicles have not been handed over. Subsequently the petitioner terminated the said Loan-cum- Hypothecation Agreement and recalled the loan.
The opposite party no.1 filed Title Suit No.23 of 2010 before the Fast Court of Civil Judge (Junior Division), Tamluk claiming the following reliefs:
"a) a decree of declaration to the effect that the plaintiff is the registered owner of the truck specifically described in the schedule below and the defendants have no right on the said truck; b) a decree of permanent injunction restraining the defendants from interfering the peaceful plying the truck;
c) a decree of accounting;
d) a decree of all costs;
e) a decree as your plaintiff is entitled to get the relief as per law and equity;"
In the said suit, an application for injunction was also taken out and an ad interim order of injunction was passed restraining the petitioner from taking possession of the said vehicle. After the service is effected in compliance of Order 39 Rule 3 of the Code of Civil Procedure, the petitioner appeared and filed an application under Section 5 & 8 of the Arbitration and Conciliation Act, 1996 for referring the parties to arbitration. The petitioner states that the said Loan-cum-Hypothecation Agreement contains a valid arbitration clause and, therefore, the Civil Court cannot entertain the said lis. By an order dated 4th December, 2010, the Trial Court dismissed the said application filed by the petitioner which was assailed in revision before the High Court in C.O. No. 438 of 2011. The said revisional application was ultimately allowed and the said revisional application was disposed of by directing the Trial Court to consider the said application filed by the petitioner under Section 5 & 8 of the Arbitration & Conciliation Act, 1996 afresh. The review application against the said order disposing of the revisional application also stood dismissed.
During the pendency of the aforesaid proceedings, the opposite party no.1 filed a complaint before the District Consumer Disputes Redressal Forum (District Forum in short) which gave rise to the registration of complaint case no. 105 of 2010 claiming the compensation for the alleged forcible possession of the vehicle in the following:
"a) Direct the opp. Parties to pay Rs. 4,48,444/- by way of damages caused due to the deficiency of service fully described in the schedule B below together with interest @ 12% per annum till realisation of the award money.
b) Direct the opp.parties to pay Rs. 50,000/- as special damages for causing mental suffering and damage of business credibility and good will of the complainant.
c) Costs of the suit.
d) Such other relief or relief to which the complainant is entitle under law and equity."
The opposite party no.1 averred in the said complaint case that because of the forcible possession taken by the petitioner, the opposite party has suffered a damages and/or loss and was also subject to mental cruelty. The District Forum dismissed the said complaint case solely on the ground that the opposite party no.1 has approached the Civil Court and the Criminal Court for alleged illegal repossession of the vehicle and, therefore, he cannot approach the Forum under the Consumer Protection Act, 1986. It is relevant to record that the said complaint case was heard ex parte and dismissed by the District Forum. The opposite party no.1 carried the said order of dismissal before the State Consumer Disputes Redressal Commission, West Bengal (State Commission in short). By the impugned order the State Commission not only set aside the order of the District Forum but awarded the damages suffered due to deficiency in service and a compensation of Rs.50,000/- for causing mental suffering and damages of the business credibility. The parties have argued at length both on the point of maintainability of an application under Article 227 of the Constitution as well as that the order suffers from illegality, infirmity, perversity and manifest error of law.
The learned Advocate appearing for the petitioner submits that the petitioner have already resorted to an avenue by filing a suit alleging the same set of facts, the present proceeding initiated before the District Forum is not maintainable. It is further submitted that the District Forum rightly rejected the complaint case because of the pendency of the civil suit and, therefore, the State Commission was not justified in setting aside the said order. It is strenuously submitted that the State Commission has mechanically allowed the appeal without recording any reasons and, therefore, the order cannot with stand on the anvil of doctrine of speaking order.
The learned Advocate appearing for the opposite party no.1 vehemently submits that an application under Article 227 of the Constitution of India is not maintainable as the remedy of the petitioner is to file an appeal before the National Commission. In alternative, it is submitted that even if, the order is not assailable by filing an appeal before the National Commission, the petitioner can very well assail the said order under Section 29 (b) of the Consumer Protection Act, 1986. In support of the said contention, reliance is placed upon an unreported judgment of the Supreme Court in case of Phalguni Das -vs- Tapas Dutta (Civil Appeal No. 2123 of 2012 decided on February 15, 2012) and in case of Nivedita Sharma -vs- Cellular Operations Assn. Of India & Ors. (Civil Appeal No. 10706 of 2011 decided on December 7, 2011). In reply the petitioner submits that there is no absolute bar in entertaining an application under Article 227 of the Constitution of India despite the existence of alternative remedy by way of a statutory appeal. The High Court can certainly exercise the supervisory jurisdiction in an appropriate case where there is a manifest injustice either in law or procedure. The reliance is placed upon the unreported judgment delivered by this Bench in case of The Operation Manager, Auto Loan Consumer Service Dept., ABN Amro Bank Ltd; (C.0. No. 749 of 2008 decided on 07.03.2012) and in case of West Bengal Agro Industries Corporation Ltd. -vs- Sirajul Haque reported in 2012 (2) CHN 529 (Cal) and in case of Rita Das -vs- Jayashri Ghosh reported in 2012 (1) CHN 272 (Cal) in support of the aforesaid contentions. Upon hearing the respective Counsels, it is indubitable that the opposite party have not only initiated a civil proceeding before the Civil Court but simultaneously filed the complaint case before the District Forum under the Consumer Protection Act, 1986. The petitioner have put much stress on the fact that once the party resorted to a remedy which cannot be said to be inefficient or complete one, further remedy on the self-same cause of action is impermissible. In this regard, the Court can safely placed upon Section 3 of the Consumer Protection Act, 1986 which says that the provision of this Act shall be in addition to and not in derogation of the provision of any other law for the time being in force. The three judge bench of the Supreme Court in case of State of Karnataka -vs- Vishwabharathi House Building Coop. Society and Others; reported in (2003) 2 SCC 412 held that by reason of Section 3, the said Act supplement and not supplant the jurisdiction of the Civil Court or other statutory authorities. The right of the consumer to approach the Civil Court for necessary relief have been provided under the said Act itself, in the event, the complaint involved complicated issues requiring recording of evidence of experts. Furthermore, the relief claimed in the civil suit as narrated herein above and the relief claimed in the complaint petition before the Consumer Forum are distinct and separate which is clearly discernible from the set of facts as well as the prayers made in both the proceedings.
The civil suit is filed by the opposite party no.1 for declaration of his right as an owner of the said vehicle with consequential reliefs in form of injunctions whereas the complaint case is restricted to compensation for the alleged illegal acts of repossession by the petitioner and the damages which he suffers. This Court, therefore, does not find that both the proceedings are mutually destructive and cannot run concurrently. On the point of maintainability and/or entertainability of an application under Article 227 of the Constitution because of the existence of alternative efficacious remedy by way of statutory appeal, let me consider the judgment of the Supreme Court rendered in case of Nivedita Sharma (supra). In the said decision, the division bench of the Delhi High Court entertains the writ petition filed against the order of the State Commission. The Supreme Court after noticing the judgment rendered by the Apex Court on the above subject did not held that the High Courts' power under Article 226 or 227 of the Constitution of India is completely excluded which could be culled out from the following excerpts:
" We have considered the respective arguments/submissions. There cannot be any dispute that the power of the High Courts to issue directions, orders or writs including writs in the nature of habeas corpus, certiorari, mandamus, quo warranto and prohibition under Article 226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislation- L. Chandra Kumar v. Union of India (1997) 3 SCC 261. However, it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action taken by the State and/or its agency/instrumentality or any public authority or order passed by a quasi-judicial body/authority, and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather, it is settled law that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.
In Thansingh Nathmal . Superintendent of Taxes AIR 1964 SC 1419, this Court adverted to the rule of self-imposed restraint that writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed:
"The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up." In Titaghur Paper Mills Co. Ltd. v. State of Orissa (1983) 2 SCC 433, this Court observed:
" It is now well recongnised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkeesford (1859) 6 CBNS 336: 141 ER 486 in the following passage:
' There are three classes of cases in which a liability may be established founded upon a statute....But there is a third class, via., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.'
The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. 1919 AC 368: (1918-19) All ER Rep. 61 (HL) and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd 1935 AC 532 and Secy of State v. Mask and Co. (1939- 40) 67 IA 222: AIR 1940 PC 105. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine."
In Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC 536, B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed:
"So far as the jurisdiction of the High Court under article 226 or for that matter, the jurisdiction of this Court under Article 32 is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Aricle 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment."
In the judgments relied upon by Shri Vaidyanathan, which, by and large, reiterate the proposition laid down in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar AIR 1969 SC 556, it has been held that an alternative remedy is not a bar to the entertaining of writ petition filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order under challenge is wholly without jurisdiction or the vires of the statute is under challenge.
It can, thus, be said that this Court has recognised some exceptions to the rule of alternative remedy."
In case of Phalguni Das (supra), the Court did not find the case before it to come within the excerption carved out for entertaining the application under Article 226 or 227 of the Constitution of India if there is an alternative remedy available and directed the parties therein to avail their remedy provided under the Consumer Disputes Act, 1986. In case of Radhey Shyam & another -vs- Chhabi Nath & Ors; reported in (2009) 5 SCC 616, the Supreme Court held that Article 227 of the Constitution clothed the High Court with the power of superintendence which is to be sparingly exercised to keep tribunal and Courts within the bounds of their authority and the interference should be restricted in an exceptional case where manifest miscarriage of justice has been occasioned in these words:
"31. Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be very sparingly exercised to keep tribunals and courts within the bounds of their authority. Under Article 227, orders of both civil and criminal courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law.
32. The essential distinctions in the exercise of power between Articles 226 and 227 are well known and pointed out in Surya Dev Rai and with that we have no disagreement. But we are unable to agree with the legal proposition laid down in Surya Dev Rai that judicial orders passed by a civil court can be examined and then corrected/reversed by the writ court under Article 226 in exercise of its power under a writ of certiorari. We are of the view that the aforesaid proposition laid down in Surya Dev Rai, is contrary to the ratio in Mirajkar and the ratio in Mirajkar has not been overruled in Rupa Ashok Hurra."
In case of Sneh Gupta -vs- Devi Sarup & Ors; reported in (2009) 6 SCC 194, the Apex Court laid down that the supervisory jurisdiction can be exercised if the finding arrived by the subordinate court or the tribunal were perverse and/or arrived without taking into consideration the relevant factors or irrelevant factors not germane therefor in these words:
"41. The High Court moreover was exercising its jurisdiction under Article 227 of the Constitution of India. While exercising the said jurisdiction, the High Court had a limited role to play. It is not the function of the High Court while exercising its supervisory jurisdiction to enter into the disputed question of fact. It has not been found by the High Court that the findings arrived at by the learned Additional District Judge were perverse and/or in arriving at the said findings, the learned Additional District Judge failed and/or neglected to take into consideration the relevant factors or based its decision on irrelevant factors not germane therefor. It could intervene, if there existed an error apparent on the face of the record or, if any other well-known principle of judicial review was found to be applicable. (See Yeshwant Sakhalkar v. Hirabat Kamat Mhamai.)" In another judgment rendered in case of Jai Singh & Ors -vs- Municipal Corporation of Delhi & Anr; reported in (2010) 9 SCC 385, the two judge bench of the Supreme Court held that the supervisory jurisdiction can be exercised in cases where the order passed is in grave dereliction of duty or flagrant abuse of fundamental principle of law or justice in the following:
"15. We have anxiously considered the submissions of the learned counsel. Before we consider the factual and legal issues involved herein, we may notice certain well-recognised principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well-established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well-known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well-recognised constraints. It can not be exercised like a "bull in a china shop", to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice."
On the above proposition, the judgment rendered by three judge bench of the Supreme Court in case of State of Karnataka -vs- Vishwabharathi House Building Coop. Society reported in (2003) 2 SCC 412 can be aptly referred to. In the said report, the Supreme Court was dealing a matter relating to Consumer Protection Act, 1986 and its constitutional validity. It is held that the power of judicial review of the High Court which is one of the basic features of the Constitution has not been taken away and the power of the High Court under Article 227 of the Constitution of India is adequately safeguarded in following observations:
"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.
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."
In view of the larger bench decision rendered in case of Vishwabharathi House Building Coop. Society (supra), the power of the High Court under Article 226 or 227 of the Constitution has not been taken away because of the alternative efficacious remedy provided under the statute. What can be deduced from the above judgments are that the power of judicial review and/or superintendents are the basic features of the constitution which cannot be taken away absolutely but should be exercised in an exceptional cases where there is a manifest injustice apparent on the order itself either in law or in fact dereliction in discharging the duties, violation of principle of natural justice etc. The High Court is bound to respect the judgment of the higher quorum or the constitutional bench decision operating the field. In Nivedita Sharma (supra), the two judge bench, as indicated above, did not laid down in absolute terms that the power of judicial review or supervisory jurisdiction cannot be exercised under Article 226 or 227 of the Constitution of India because of the existence of statutory remedy. The said judgment is also in tune with the ratio laid down in Vishwabharathi House Building Coop. Society (supra) that in exceptional cases, the High Court can interfere under Article 226 or 227 of the Constitution. In the facts involved in the said report, the Supreme Court refused to exercise the supervisory jurisdiction which is obviously a discretionary one.
Let me now consider on the above principles of law as laid down in the judgments as referred to above whether the order impugned in this application under Article 227 of the Constitution can be interfered with. The facts are more or less adumbrated in the preceding paragraphs. The State Commission is right in contending that the civil proceeding initiated by the opposite party no.1 is distinct and separate and the District Forum should not have rejected the complaint case on such ground alone. I have also demonstrated by depicting the respective claims of both the proceedings which cannot be said to be mutually destructive.
The Consumer Protection Act, 1986 is enacted to protect the common man from wrongs where the remedy under the common law has become illusory. Under the said Act, a consumer is entitled to participate in a proceeding directly and is helpless against the power business house is sufficiently taken care off. The Consumer can very well ventilate his grievance before the Forum without any procedural wrangles and hypertechnicalities. The Forum also correspondingly owes responsibility to adjudicate on summary trial to serve the ends of justice not only in the form of damages but to bring a change in the attitude of service provider qualitatively. The Forum cannot absolve itself from providing the reasons to avoid the chance of arbitrariness and to provide the higher forum to test the correctness thereof. In the above perspective, the observation of the three judge bench of the Supreme Court in case of Vishwabharathi House Building Coop. Society (supra) can be safely relied upon which reads thus:
"39. The rights of the parties have adequately been safeguarded by reason of the provisions of the said Act inasmuch as although it provides for an alternative system of consumer jurisdiction on summary trial, they are required to arrive at a conclusion based on reasons. Even when quantifying damages, they are required to make an attempt to serve the ends of justice aiming not only at recompensing the individual but also to bring about a qualitative change in the attitude of the service provider. Assignment of reasons excludes or at any rate minimizes the chances of arbitrariness and the higher forums created under the Act can test the correctness thereof."
The impugned order is bereft of any reasons. The District Forum dismisses the complaint case solely on the ground of having approached the Civil Court. There was no finding recorded by the District Forum which obviously should not be done on the findings relating to the grant of compensation and/or damages. The State Commission while arriving at the finding that the order of the District Forum is not sustainable awarded the compensation and/or damages as claimed in the said complaint petition without recording any findings thereupon. It is still unknown at least from the impugned order as to what evidence and/or materials were produced by the opposite party no.1 on an issue relating to the compensation and/or damages. The State Commission should have scanned the evidence and the documents produced on the issue of the compensation and/or damages and the quantum thereof. This Court, therefore, set aside the portion of the impugned order by which the damages and/or compensation is granted. The State Commission shall hear the said appeal on the above issue for which the impugned order is set aside.
This Court repose trust and hope on the said Forum that it would make all endeavour to dispose of the same within four weeks from the date of the communication of this order, after giving an opportunity of hearing to the respective parties in accordance with law. With these observations, the revisional application is disposed of. However, there shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Harish Tandon, J.)
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