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M/s. Max Worth Homes Ltd. v/s V. Raman

    Civil Revision Petition (PD) No.153 of 2005

    Decided On, 23 March 2005

    At, High Court of Judicature at Madras


    For The Petitioner: R. Subramanian, Advocate. For The Respondent: N.L. Raja for M/s. Rajan and Venkatesh Associates.

Judgment Text

The above Revision Petition is filed challenging the order dated 28.12.2004 made in E.P.No.4 of 2004 in O.P.No.13 of 2003 by the State Consumer Disputes Redressal Commission (hereinafter called as the Commission), at Chennai.

2. The petitioner herein is the opposite party in the complaint preferred by the respondent herein. The respondent has preferred a complaint for deficiency of service on the part of the petitioner. According to the respondent, even though he has parted with the amount for construction of the house in question long bank, the petitioner has not completed the construction and there was undue delay, which resulted in filing the complaint before the Commission.

3. The Commission by order dated 29.3.2004 directed the petitioner to pay a sum of Rs.6,93,416/- towards compensation, which includes the payment made by the respondent/complainant for construction of the house with with interest and damages.

4. Apart from the said amount a sum of Rs.5,000/- was also ordered towards the costs of the complaint.

5. Subsequently, the petitioner has filed an application before the National Commission and an interim order was passed on 6.7.2004 directing the petitioner to deposit a sum of Rs.6,00,000/- to the credit of the petition within a period of six weeks therefrom. In this regard, an application was filed before the National Commission seeking extention of time, which was dismissed. Subsequently, the petitioner has also filed an application on 31.11.2004 before the State Commission seeking permission to deposit the amount and the same was also dismissed. Under the said circumstances, the respondent has filed an application in E.P.No.4 of 2004 to execute the order and the Commission by Order dated 28.3.2004 has ordered for the issuance of warrant of arrest and production of the petitioner herein. Aggrieved by the said order, the petitioner herein approached this Court by way of revision.

6. Learned counsel for the petitioner would contend that the Commission has not considered the bona fide on the part of the petitioner, who was ready and willing to make the payment as ordered earlier and that even when the application filed on the earlier occasion viz., on 31.11.2004 seeking for permission to deposit the amount, he was in possession of the demand drafts for the substantial amount except for a sum of Rs.1,00,000/-, which could not be mobilised due to unforeseen circumstances. In this connection, he has drawn my attention, about the demand drafts obtained as early as on 14.12.2004. According to the learned counsel, the Commission has not considered the fact that except a sum of Rs.1,00,000/-, the petitioner has mobilised the entire balance amount and the equitable order could have been passed instead of dismissing the application seeking permission to deposit the amount. He would further add that even the balance of Rs.1,00,000/- was deposited in the Registry of the Commission. In this regard, he has produced acknowledgment affixing the seal of the office of the Commission dated 22.12.2004 which discloses that all the demand drafts were received and kept in the locker. In the light of the above facts and circumstances, according to the learned counsel for the petitioner, the order passed by the Commission on 28.3.2004 is liable to be interfered with by this Court in exercise of powers under Article 227 of the Constitution. In this regard, the learned counsel for the petitioner has placed reliance upon a decision of the Apex Court in State of Karnataka vs. Vishwabharathi House Building Coop.Society and others (2003) 2 Supreme Court Cases 412 and the decision rendered in Uma Nursing Home rep.by its owner.., and another vs. V.Jansirani and others [2005 (1) TLNJ 176].

7. Per contra, the learned counsel appearing for the respondent would contend that though the power of this Court under Article 227 of the Constitution is wide, the petitioner has not made out a case for this Court to exercise the said powers. He would further add that the conduct of the petitioner has to be deprecated and no indulgence should be shown to him inasmuch as the orders passed on the earlier occasion viz., by the National Commission as well as the State Commission directing him to deposit the amount were not complied within the stipulated time therein. The grounds as set out in the revision petition do not warrant interference by this court under Article 227 of the Constitution. The learned counsel would further contends that if at all the petitioner is aggrieved against the present order, he has to approach only the National Commission for appropriate remedy.

8. I have considered the rival submissions made by the learned counsel on both sides.

9. Admittedly, the petitioner has failed to comply with the conditional order dated 6.7.2004 passed by the National Commission, wherein six weeks time was granted to deposit the amount. Subsequently, the application filed by the petitioner seeking extention of time was also rejected considering the facts and circumstances of the case. Thereafter, the petitioner has chosen to approach the State Commission seeking permission to deposit the amount. It is also not in dispute that the petitioner was ready to deposit the entire amount as ordered by the National Commission viz., the sum of Rs.6,00,000/-.

10. Though the petitioner has arranged a substantial portion of the amount that cannot be construed as compliance of the conditional order particularly when an extention of time was sought for to deposit the amount. Though the petitioner himself has sought for extention of time, till 21.12.2004, to deposit the amount, he was able to arrange the entire amount except the balance amount of Rs.1,00,000/- which could be arranged only on 22.12.2004, and later on deposited in the Registry of the State Commission. In the light of the facts and circumstances, the State Commission was left with no other option than to pass the order, which is under challenge in this revision petition.

11. In the background of the above factual aspects, when the order came to be passed for the noncompliance of the earlier directions exercising powers under Section 27 of the Consumer Protection Act, 1986 (hereinafter called as the Act), it is not possible for this Court to interfere with the said order. Even though the learned counsel for the petitioner has advanced arguments to the effect that the present order cannot be construed as final order under Section 27(1) of the Act and the Appeal lies under Section 27(A) of the Act, I am not inclined to accept the above proposition of law. Admittedly, the execution proceedings itself was initiated by the complaint/respondent herein only under Section 27 of the Act. The present order which is under challenge in the above revision came to be passed was only in the said circumstances under Section 27 of the Act. As such it cannot be suggested that no appeal shall lie as against the said order. Even otherwise, Section 21(b) of the Act confers wide powers to the National Commission to call for records and pass appropriate orders in respect of any matter pending or orders passed by the State Commission when it appears to the National Commission that the 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. In the light of such wide powers conferred upon the National Commission and in the light of the present facts on hand, I am not inclined to exercise powers under Article 227 of the Constitution.

12. As regards the decision relied upon by the learned counsel for the petitioner reported in 2003 (2) SCC 412 supra, the said decision was rendered when the legality of the Act was under challenge and the Apex Court while upholding the legality of the Act has observed that sufficient safeguards are available to the parties concerned by virtue of the powers conferred upon the High Court under Article 226/227 as well as the Apex Court under Article 32 of the Constitution apart from Section 23 of the Consumer Protection Act 1986, wherein the right to appeal is conferred to the Apex Court as against the orders passed by the National Commission. The said observation cannot be construed that in all cases, the High Courts should exercise its powers conferred under Article 227 of the Constitution unless the particular case on hand warrants interference. Similarly, the decision rendered by this Court reported in 2005 (1) TLNJ 176 supra was rendered in a situation therein the application sought for condonation of delay in filing the version, was dismissed by the State Commission, and considering that it would be an onerous exercise to drive one of the parties on an interlocutory issue to go before the National Commission at Delhi. Even otherwise, the said decision was rendered by the learned Judge considering the facts and circumstances prevailing in the said case, which is not applicable to the

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case on hand. More over, as also contended by the learned counsel for the respondent, this Court cannot interfere with the order impugned unless there is fragrant violation of law; grave or manifest order has crept in; or there is a misappreciation of evidence; or a preverse finding is rendered by the State Commission,. Inasmuch as none of the conditions are satisfied, more particularly, there are no pleadings even to this effect in the grounds of revision, I am not inclined to entertain the above revision. 13. As such the above Revision Petition is liable to be dismissed and accordingly, the same is dismissed. No costs. Consequently, CMP No.1476 and 3320 of 2005 are closed. However, it is made clear that filing of the above revision will not preclude the petitioner to seek such remedy open to law. Liberty is given to the petitioner to seek the refund of the deposit which was already made before the State Commission in pursuance of the interim order passed by this Court in the above revision.