Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.2406 of 2018
1] Wasan Automotive Pvt. Ltd.,
Office at Wasan House, Plot No.4,
Swastik Pari, Sion Trombay Road, Chembur,
Mumbai400071.
Through its General Manger Shri Pitambar Baburao Bhamre.
2] Vijay Kundanlal Wasan,
Age 52, having his address at Wasan House,
Plot No.4, Swastik Pari, Sion Trombay Road,
Chembur, Mumbai400071. …. Petitioners.
Versus
Subhash Rajaram Vande,
Aged about 40 years, Occ.Business, R/o.Vadegaon,
Tq. Balapur, Dist. Akola. .... Respondent.
Mr. T.D. Mandalekar and Mr. R.V. Malviya, Counsel for petitioners.
Mr. C.A. Joshi, Counsel for respondent.
Coram : Manish Pitale, J.
Date of reserving the judgment : 10012019.
Date of pronouncing the judgment : 05032019.
J U D G M E N T
. Rule made returnable forthwith. Heard finally with the
Rule
consent of Counsel for the parties.
2. The petitioner being a Company and its Director have
challenged order dated 12102017, passed by the State Consumer
Disputes Redressal Commission, Maharashtra, Nagpur Circuit Bench,
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Nagpur [for short, 'the State Commission'], whereby appeal filed by the
petitioners has been dismissed in default. It is the case of the petitioners,
that since the appeal has been dismissed in default by the State
Commission and not on merits, the Writ Petition filed by them is
maintainable and that the impugned order deserves to be set aside.
3. The respondent filed a complaint before the District Consumer
Disputes Redressal Forum, Akola, (hereinafter referred to as 'the District
Forum'] against the petitioners, stating that he had purchased a Marco
Polo School Bus from the petitioners by paying valuable consideration. It
was submitted before the District Forum by the respondent that the
petitioners were dealers of the said vehicle and that there were serious
defects in the said vehicle from the very beginning, due to which it had to
be sent to the petitioners frequently for repair and service. It was claimed
that certain repairs required to be carried out in the vehicle were
deliberately not mentioned by the petitioners in the Service History Report
and that the respondent had suffered mentally, physically and financially
due to the said act of the petitioners. On this basis, the respondent sought
direction against the petitioners for providing a new School Bus and to pay
amount of Rs. 2 lakhs towards damages, as also Rs. 10,000/ towards
litigation expenses. The petitioners appeared before the District Forum
and denied the allegations made by the respondent and they claimed that
they had provided free servicing for the said vehicle as per policy and that
there was no question of the petitioners providing a new bus to the
respondent.
4. By order dated 08092014, the District Forum partly allowed
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the complaint of the respondent and directed the petitioners to provide a
new Marco Polo School Bus to the respondent along with payment of
Rs. 25,000/ towards physical, mental and financial damages with a
further sum of Rs. 2,000/ towards litigation expenses. Aggrieved by the
said order of the District Forum, the petitioners filed appeal before the
State Commission under Section 15 of the Consumer Protection Act, 1986
(hereinafter referred to as the 'aforesaid Act']. One of the grounds raised
in the appeal was that the complaint filed by the respondent ought not to
have been entertained by the District Forum, because manufacturer of the
said vehicle i.e M/s Tata Motors Limited was not made an opposite party
in the complaint. It was contended that the District Forum could not have
given direction of providing new bus to the respondent, when the
manufacturer was not made a party to the proceedings. On 30102014,
the State Commission issued notice to the respondent and further granted
interim stay to the order of the District Forum, subject to the petitioners
depositing the amount to be paid to the respondent as directed by the
District Forum. The petitioners deposited the said amount before the
District Forum in compliance of the said order. Accordingly, interim stay
operated in their favour. On 21012015, the State Commission admitted
the appeal, continued the interim stay and directed both the parties to file
their respective written notes of arguments.
5. Thereafter, the Counsel for the respondent filed written notes
of arguments before the State Commission. It has come on record that
adjournments were sought on behalf of the petitioners for filing written
notes of arguments. The appeal was listed before the State Commission
on 12102017, when none appeared on behalf of the petitioners. The
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State Commission recorded that the appeal had been adjourned on 7 dates
for filing of written notes of arguments on behalf of the petitioners and yet
they had failed to do so, due to which the appeal was liable to be
dismissed for want of prosecution. The State Commission directed the
appeal to be called again at the end of the Board and when none
appeared for the appellant at that stage, by the impugned order, the State
Commission dismissed the appeal in default. The petitioners claimed that
they became aware of the dismissal of the appeal when notice was
received in April, 2018 on an application filed by the respondent under
Section 27 of the aforesaid Act, before the District Forum. Thereupon, the
petitioners filed the present Writ Petition on 17042018, challenging the
impugned order.
6. Mr. T.D. Mandalekar, learned Counsel appearing for the
petitioners, contended that the petitioners were entitled to challenge the
impugned order passed by the State Commission by invoking writ
jurisdiction of this Court because firstly, the impugned order passed by the
Bench comprising of a Single Member of the State Commission was an
order passed without jurisdiction and secondly, such an order dismissing
the appeal in default and not on merits could not be made subject matter
of a Revision Petition before the National Consumer Disputes Redressal
Forum, New Delhi, under Section 21(b) of the aforesaid Act. It was
submitted that on these two grounds the present Writ Petition was
maintainable and that the petitioners had a strong case to demonstrate that
the impugned order was unsustainable even on merits. According to the
learned Counsel, after the appeal was admitted before the State
Commission, the dealership agreement of the petitioners had expired and
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in August, 2015, the dealership establishment had been completely closed
down. It was submitted that this resulted in the Advocate appearing for
the petitioners before the State Commission not being able to obtain
instructions from the petitioners. As a consequence, the appeal stood
adjourned on certain dates before the State Commission and the
petitioners remained unaware about dismissal of the appeal in default by
the impugned order. It was contended that when the respondent filed
application under Section 27 of the aforesaid Act before the District Forum,
and notice of the same was received by the petitioners, that they become
aware of dismissal of the appeal and thereafter, they immediately filed the
present Writ Petition. It was submitted that the petitioners had a very
strong case in the appeal before the State Commission because the
complaint filed by the respondent before the District Forum was
fundamentally defective, in the absence of manufacturer of the vehicle
being made party. On this basis, it was submitted that it would be in the
interest of justice that the impugned order is set aside and the appeal is
directed to be heard and disposed of on merits. The learned Counsel for
the petitioners relied on number of judgments on the aspect of
maintainability of the Writ Petition, which shall be considered herein below.
7. Per contra, Mr. C.A. Joshi, learned Counsel appearing for the
respondent, submitted that the Writ Petition was not maintainable in view of
the alternative remedy available to the petitioners of filing Revision Petition
before the National Commission, under Section 21 (b) of the said Act. It
was submitted that as per the law laid down by the Hon'ble Supreme Court
and subsequently followed in a number of judgments, in spite of availability
of alternative remedy, this Court exercised its writ jurisdiction in three
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contingencies firstly, where the Writ Petition sought enforcement of any
fundamental rights, secondly, where there was failure of principles of
natural justice and thirdly, where the impugned order was wholly without
jurisdiction. It was submitted that the petitioners had failed to demonstrate
how their case fell within any of the aforesaid three contingencies and that
therefore, the Writ Petition was not maintainable. It was submitted that
perusal of the impugned order would show that on as many as 7 dates the
appeal had been adjourned and yet the petitioners had failed to file written
notes of arguments and that after granting sufficient opportunity to the
petitioners, the State Commission was constrained to dismiss the appeal
in default. It was submitted that remedy of filing Revision Petition was
certainly available to the petitioners and that therefore, the Writ Petition
deserved to be dismissed as not maintainable. It was submitted that the
petitioners had failed to demonstrate any special reasons as to why the
Writ Petition was required to be entertained or as to why the impugned
order deserved to be set aside. On this basis, the learned Counsel
submitted that the Writ Petition deserved to be dismissed.
8. Heard Counsel for the parties and perused the record. The
basis for the contention raised on behalf of the petitioners that the
impugned order is without jurisdiction, is that a Member of the State
Commission sitting singly could not have dismissed or disposed of the
appeal filed by the petitioners. In this regard, the learned Counsel placed
reliance on Section 14 read with Section 18 of the aforesaid Act. It was
contended that by the application of the aforesaid two provisions, it was
evident that the appeal could have been disposed of by the President of
the State Commission sitting with at least one more member and that the
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impugned order being passed a Bench of Single Member of the State
Commission was rendered without jurisdiction. In this regard, the learned
Counsel appearing for the petitioners placed reliance on an order passed
by the State Commission dated 11032011 in First Appeal No.A/14/363
( Vasan Automobiles Ltd., Akola and another vs Subhash Rajaram
). In the said judgment, the State Commission has held that
Vande
quorum of the District Forum is President and two Members and in an
exceptional case, if one of the Members is absent, the District Forum can
consist of President and one Member who can dispose of cases. The
said view of the State Commission was based on interpretation of Section
14 (2) and (2A) of the said Act by placing reliance on the same. It was
contended on behalf of the petitioners that since Section 18 of the said Act
lays down that the provisions of Sections 12, 13 and 14 of the said Act and
the Rules made therein for disposal of complaint by the District Forum,
shall be applicable to disposal of disputes by the State Commission, an
appeal could not be disposed of or dismissed by a Bench consisting of a
Single Member of the State Commission.
9. The said contention raised on behalf of the petitioners ignores
Section 16(1B)(i) and (ii) of the said Act. The said provision reads as
follows :
“16. Composition of the State Commission .—
(1B) (i) The jurisdiction, powers and authority of
the State Commission may be exercised by
Benches thereof.
(ii) A Bench may be constituted by the President
with one or more members as the President may
deem fit.”
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10. A bare perusal of the above quoted provisions shows that the
jurisdictional powers and authority of the State Commission can be
exercised by Benches thereof and a Bench may be constituted by the
President of the State Commission with one or more Members as the
President may deem fit. A proper reading of the aforesaid section clearly
shows that the President of the State Commission can certainly constitute
a Bench consisting of a Single Member of the State Commission. As
regards the contention raised on behalf of the petitioners based on Section
18 of the said Act, a perusal of the aforesaid provision shows that Sections
12, 13 and 14 of the said Act and the Rules framed thereunder for disposal
of complaint by the District Forum shall be applicable to disposal of
disputes before the State Commission. A proper reading of the said
provision clearly shows that Section 18 of the said Act lays down the
procedure applicable to the State Commission when it considers original
complaints filed before it. The said procedure would not apply to the
appeals that arise from orders passed by the District Forum and therefore,
there is no substance in the contention raised on behalf of the petitioners.
In fact, a perusal of the aforesaid judgment of the State Commission
relied upon by the learned Counsel for the petitioners in the case of
Vasan Automobiles Ltd., Akola and another vs Subhash Rajaram
Vande (supra), shows that the State Commission was considering the
issue of procedure to be adopted by the District Forum under Section 14 of
the said Act for disposal of an original complaint. The said judgment can
be of no assistance to the petitioners to claim that the impugned order
passed by a Bench consisting of Single Member of the State Commission,
was without jurisdiction. Therefore, on this ground, it cannot be said that
the Writ Petition of the petitioners is maintainable before this Court.
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11. The other ground raised on behalf of the petitioners while
insisting that there is no alternative remedy in the form of Revision Petition
under Section 21(b) of the aforesaid Act before the National Commission,
is based on an assertion that a Revision Petition would be maintainable
only against an order passed by the State Commission while disposing of
an appeal on merits and not against an order dismissing an appeal in
default. Section 21 (b) of the said Act reads as follows :
“Section 21 Jurisdiction of the National
Commission
(a)
(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.”
12. A perusal of the said provision nowhere indicates that a
Revision Petition would be maintainable before the National Commission
only against orders passed by the State Commission disposing of appeals
on merits. Even an order passed by the State Commission dismissing an
appeal in default could very well be made subject matter of challenge in a
Revision Petition before the National Commission. The learned Counsel
for the petitioners was unable to support the said contention raised on
behalf of the petitioners. In this situation, the learned Counsel for the
petitioners referred to and relied upon a number of judgments to contend
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that Writ Petitions in similar circumstances had been entertained by this
Court and that therefore, the present Writ Petition filed by the petitioners
was maintainable.
13. On going through the said judgments relied upon by the
learned Counsel for the petitioners, it was found that in judgments passed
by this Court in the cases of Hemlata w/o Kantilal Thole vs United India
Insurance Co.Ltd (W.P. No.8401 of 2013), Kapurchand Kotechan
Urban CoOp. Credit Society Ltd, Bhusawal and another vs Mangilal
s/o Bhikchand Jain (W.P. No.531 of 2014), The Branch Manager, State
Bank of India, Dhondakha Branch vs Dharmaraj Chindha Patil
(W.P.No.2811 of 2015), Kamlakar Ramsa Chawre vs State Consumer
Disputes Redressal Commission, Maharashtra Circuit Bench at
Nagpur and others (W.P. No.2697 of 2012), Shashikala
Rameshchandra Sinha (Dead) through Lrs. And others vs Ram
(W.P. No.5805 of 2015) and
Ramprasad Rathi Ashtavinayak developers
through is partners and others vs Gulam Mustafa Khan s/o Gulam
Ahmad Khan and another (W.P. No.864 of 2017), the question of
availability of alternative remedy under Section 21(b) of the aforesaid Act,
was not even raised and therefore, there was no discussion and finding on
the very maintainability of the Writ Petitions. Thus, the said judgments can
be of no assistance to the petitioners.
14. In other judgments relied upon by the learned Counsel for the
petitioners in the cases of Anita Chandrakant Patil vs The Circle
Officer, LIC of India and another (WP No.7718 of 2015), Shivaji s/o
Rangnath Khilari vs The Manager, Wasan Automobiles and another
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(W.P. No.9793 of 2014), Miss. Radhika d/o Rajesh Mandhani vs Dr.
Dilip Pathwardhan and another (WP No.3985 of 2012), The Assistant
Engineer, M.S.E.B. Risod, District Washim and another vs Bhikaji
Bhaurao Gavhane and others (WP No.4493 of 2013), M/s Ankur Seeds
(WP No.6286
P. Ltd., vs Ashok s/o Janardhan Dhumale and another
of 2013) and Ganpat s/o Punjaji Chouke vs Provident Fund
Commissioner and others (WP No.330 of 2016), this Court referred to
the availability of the aforesaid alternative remedy under Section 21(b) of
the aforesaid Act, and yet entertained the Writ Petitions, noting in each
case that there were special circumstances that required exercise of writ
jurisdiction, despite availability of the alternative remedy. In the said cases,
this Court found that there were senior citizens or minors or ladies who
were challenging the orders of dismissal in default passed by the State
Commission and in such circumstances, despite availability of the said
alternative remedy, this Court deemed it fit to exercise writ jurisdiction to
entertain the Writ Petitions.
15. Thus, it becomes clear that although alternative remedy, in
the form of Section 21(b) of the aforesaid Act, was available to the
petitioners in the present case, they chose to file the present Writ Petition.
It could be entertained by this Court, if the petitioners also are able to
demonstrate certain special facts and circumstances for exercise of writ
jurisdiction. The learned Counsel for the respondent has insisted that the
Writ Petition could be entertained by this Court despite availability of
alternative remedy, only in the three contingencies referred to by him. In
this context, the learned Counsel relied upon judgment of the Hon'ble
Supreme Court in the case of Harbanslal Sahnia and another vs Indian
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Oil Corporn. Ltd and others , (2003) 2 SCC 107 . But, a perusal of
paragraph 7 of the said judgment shows that the Hon'ble Supreme Court
has laid down that the High Court may exercise writ jurisdiction despite
availability of alternative remedy in at least three contingencies.
Thereafter, the Hon'ble Supreme Court has stated three contingencies
that are referred to and relied upon by the learned Counsel for the
respondents. But, the use of the words “at least three contingencies”,
shows that there could be other circumstances also wherein writ
jurisdiction could be exercised by the High Court. In this context, the
judgment relied upon by the learned Counsel for the respondent in the
case of Commissioner of Income Tax and others vs Chhabil Dass
Agarwal , reported at (2014) 1 SCC 603 becomes relevant. Although in
the said case, the Hon'ble Supreme Court held that a Writ Petition was not
maintainable when a statutory remedy was available, in paragraph 11 of
the said judgment, it was held as follows :
“15. Before discussing the fact proposition, we
would notice the principle of law as laid down by
this Court. It is settled law that nonentertainment of
petitions under writ jurisdiction by the High Court
when an efficacious alternative remedy is available
is a rule of selfimposed limitation. It is essentially a
rule of policy, convenience and discretion rather
than a rule of law. Undoubtedly, it is within the
discretion of the High Court to grant relief under
Article 226 despite the existence of an alternative
remedy. However, the High Court must not interfere
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if there is an adequate efficacious alternative
remedy available to the petitioner and he has
approached the High Court without availing the
same unless he has made out an exceptional case
warranting such interference or there exist sufficient
grounds to invoke the extraordinary jurisdiction
under Article 226. (See: State of U.P. vs.
Mohammad Nooh , AIR 1958 SC 86; Titaghur Paper
Mills Co. Ltd. vs. State of Orissa , (1983) 2 SCC
433; Harbanslal Sahnia vs. Indian Oil Corpn. Ltd .,
(2003) 2 SCC 107; State of H.P. vs. Gujarat
Ambuja Cement Ltd ., (2005) 6 SCC 499).
16. Therefore, it becomes clear that the High Court not
entertaining a Writ Petition when an alternative remedy is available, is a
rule of self imposed limitation, being more a rule of prudence and policy,
rather that being a rule of law. The High Court has discretion to exercise
writ jurisdiction even when an alternative remedy is available to the
petitioners. But such discretion could be exercised in favour of the
petitioners, if they are able to make out an exceptional case showing that
special facts and circumstances existed for exercise of such jurisdiction.
17. Applying the aforesaid test to the facts of the present case, it
will have to be determined as to whether the present Writ Petition
deserves to be dismissed as not maintainable. It has come on record that
the petitioners had filed appeal before the State Commission challenging
the order passed by the District Forum, wherein notice was issued and
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interim stay was granted, subject to the petitioners depositing the entire
amount before the District Forum in terms of order passed by the said
Forum. Admittedly, the petitioners deposited the entire amount before the
District Forum. Consequently, the appeal was admitted by the State
Commission on 21012015. The parties were directed to file their
respective written notes of arguments. It has also come on record that the
dealership agreement of the petitioners expired in the month of July,
2015, and that the entire establishment of the dealership was completely
closed down in August, 2015. The petitioner handed over possession of
the dealership premises to the landlord as a consequence of closing down
of the dealership establishment. In these circumstances, it was contended
on behalf of the petitioners that their Advocate was unable to file written
notes of arguments and the appeal was adjourned from time to time. The
petitioners were under the impression that since the appeal was admitted
and interim relief was granted in their favour as they had deposited the
entire amount before the District Forum, the appeal would be considered
on merits by the State Commission. As their Advocate could not contact
them, the petitioners remained unaware of dismissal of their appeal in
default on 12102017.
18. It is the case of the petitioners, that after the appeal was
dismissed in default by the impugned order, the respondent filed
application under Section 27 of the aforesaid Act before the District Forum
for implementation of order passed by the said Forum. In this application, it
is found that the respondent himself stated that notices sent by him after
dismissal of the appeal in default to the petitioners, were returned with the
remarks that “the Company had closed down” and that the “addressee
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had left”. This lends credence to the contentions raised on behalf of the
petitioners before this Court, that they were unaware of passing of the
impugned order, whereby the appeal was dismissed in default. The record
shows that it was when the Registrar of the District Forum sent notice to
the petitioner no.2. (Director of the Company) to his address at Mumbai
through the Police Commissioner of Mumbai, on 20032018, which was
returnable on 07042018, that time the petitioners became aware for the
first time about filing of the application under Section 27 of the aforesaid
Act, due to dismissal of their appeal in default by the impugned order.
The record further shows that upon receipt of the aforesaid notice/
summons, through the Commissioner of Police, Mumbai, the petitioners
immediately filed present Writ Petition on 17042018, to challenge the
impugned order passed by the State Commission. While issuing notice on
24042018, this Court granted adinterim relief to the petitioners of stay of
further proceedings in the application filed by the respondent before the
District Forum, under Section 17 of the said Act. These facts do show that
there exist special facts and circumstances in the present case for the
petitioners to invoke writ jurisdiction of this Court under Article 226 of the
Constitution of India. This, coupled with the fact that since the appeal of
the petitioners was admitted by the State Commission with interim relief in
their favour for being considered and disposed of on merits, the State
Commission could have considered the appeal on merits in view of the
documents available on record and yet it dismissed the appeal only on the
ground that written notes of arguments had not been filed on behalf of the
petitioners despite several adjournments. In this backdrop, the main
ground raised in the appeal before the State Commission becomes crucial
as the petitioners have pointed out that the complaint filed by the
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respondent before the District Forum itself was fundamentally defective
and not maintainable, because the manufacturer of the vehicle was not
made party, dispite the fact that a specific prayer for providing a new
vehicle was made on the ground that there were serious manufacturing
defects. This aspect goes to the very root of the matter, thereby showing
that this is another circumstance indicating that grave prejudice was
caused to the petitioners by dismissal of their appeal in default by the
State Commission.
19. In view of the above, this Court holds that although alternative
remedy of filing Revision Petition under Section 21(b) of the aforesaid Act
was available to the petitioners to challenge the impugned order, in the
peculiar facts and circumstances of the present case, the Writ Petition filed
by the petitioners is maintainable. As discussed above, the facts and
circumstances of the present case show, that the State Commission
ought to have decided the appeal of the petitioners on merits, in stead of
dismissing it in default.
20. Nonetheless, it cannot be ignored that inconvenience has
been caused to the respondent, because of the number of adjournments
taken on behalf of the petitioners after the appeal was admitted before the
State Commission. The respondent deserves to be compensated for the
inconvenience caused to him. Hence, this Court is of the opinion that the
petitioners need to pay costs to the respondent.
21. Accordingly, the present Writ Petition is allowed. The
impugned order passed by the State Commission, is quashed and set
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aside. The parties are relegated to appear before the State Commission.
The appeal of the petitioners is directed to be decided by the State
Commission on merits expeditiously and in any case within a period of
three months from today. The parties shall appear before the State
Commission on 11032019. In the facts and circumstances of the present
case, the petitioners shall pay costs of Rs. 25,000/ to the respondent
before 11032019 and produce proof of the same before the State
Commission. It is made clear that this Court has not expressed any
opinion on the merits of the case of the petitioners in their appeal, which
shall be decided by the State Commission in accordance with law.
22. Rule made absolute in above terms.
JUDGE
Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.2406 of 2018
1] Wasan Automotive Pvt. Ltd.,
Office at Wasan House, Plot No.4,
Swastik Pari, Sion Trombay Road, Chembur,
Mumbai400071.
Through its General Manger Shri Pitambar Baburao Bhamre.
2] Vijay Kundanlal Wasan,
Age 52, having his address at Wasan House,
Plot No.4, Swastik Pari, Sion Trombay Road,
Chembur, Mumbai400071. …. Petitioners.
Versus
Subhash Rajaram Vande,
Aged about 40 years, Occ.Business, R/o.Vadegaon,
Tq. Balapur, Dist. Akola. .... Respondent.
Mr. T.D. Mandalekar and Mr. R.V. Malviya, Counsel for petitioners.
Mr. C.A. Joshi, Counsel for respondent.
Coram : Manish Pitale, J.
Date of reserving the judgment : 10012019.
Date of pronouncing the judgment : 05032019.
J U D G M E N T
. Rule made returnable forthwith. Heard finally with the
Rule
consent of Counsel for the parties.
2. The petitioner being a Company and its Director have
challenged order dated 12102017, passed by the State Consumer
Disputes Redressal Commission, Maharashtra, Nagpur Circuit Bench,
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Nagpur [for short, 'the State Commission'], whereby appeal filed by the
petitioners has been dismissed in default. It is the case of the petitioners,
that since the appeal has been dismissed in default by the State
Commission and not on merits, the Writ Petition filed by them is
maintainable and that the impugned order deserves to be set aside.
3. The respondent filed a complaint before the District Consumer
Disputes Redressal Forum, Akola, (hereinafter referred to as 'the District
Forum'] against the petitioners, stating that he had purchased a Marco
Polo School Bus from the petitioners by paying valuable consideration. It
was submitted before the District Forum by the respondent that the
petitioners were dealers of the said vehicle and that there were serious
defects in the said vehicle from the very beginning, due to which it had to
be sent to the petitioners frequently for repair and service. It was claimed
that certain repairs required to be carried out in the vehicle were
deliberately not mentioned by the petitioners in the Service History Report
and that the respondent had suffered mentally, physically and financially
due to the said act of the petitioners. On this basis, the respondent sought
direction against the petitioners for providing a new School Bus and to pay
amount of Rs. 2 lakhs towards damages, as also Rs. 10,000/ towards
litigation expenses. The petitioners appeared before the District Forum
and denied the allegations made by the respondent and they claimed that
they had provided free servicing for the said vehicle as per policy and that
there was no question of the petitioners providing a new bus to the
respondent.
4. By order dated 08092014, the District Forum partly allowed
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the complaint of the respondent and directed the petitioners to provide a
new Marco Polo School Bus to the respondent along with payment of
Rs. 25,000/ towards physical, mental and financial damages with a
further sum of Rs. 2,000/ towards litigation expenses. Aggrieved by the
said order of the District Forum, the petitioners filed appeal before the
State Commission under Section 15 of the Consumer Protection Act, 1986
(hereinafter referred to as the 'aforesaid Act']. One of the grounds raised
in the appeal was that the complaint filed by the respondent ought not to
have been entertained by the District Forum, because manufacturer of the
said vehicle i.e M/s Tata Motors Limited was not made an opposite party
in the complaint. It was contended that the District Forum could not have
given direction of providing new bus to the respondent, when the
manufacturer was not made a party to the proceedings. On 30102014,
the State Commission issued notice to the respondent and further granted
interim stay to the order of the District Forum, subject to the petitioners
depositing the amount to be paid to the respondent as directed by the
District Forum. The petitioners deposited the said amount before the
District Forum in compliance of the said order. Accordingly, interim stay
operated in their favour. On 21012015, the State Commission admitted
the appeal, continued the interim stay and directed both the parties to file
their respective written notes of arguments.
5. Thereafter, the Counsel for the respondent filed written notes
of arguments before the State Commission. It has come on record that
adjournments were sought on behalf of the petitioners for filing written
notes of arguments. The appeal was listed before the State Commission
on 12102017, when none appeared on behalf of the petitioners. The
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State Commission recorded that the appeal had been adjourned on 7 dates
for filing of written notes of arguments on behalf of the petitioners and yet
they had failed to do so, due to which the appeal was liable to be
dismissed for want of prosecution. The State Commission directed the
appeal to be called again at the end of the Board and when none
appeared for the appellant at that stage, by the impugned order, the State
Commission dismissed the appeal in default. The petitioners claimed that
they became aware of the dismissal of the appeal when notice was
received in April, 2018 on an application filed by the respondent under
Section 27 of the aforesaid Act, before the District Forum. Thereupon, the
petitioners filed the present Writ Petition on 17042018, challenging the
impugned order.
6. Mr. T.D. Mandalekar, learned Counsel appearing for the
petitioners, contended that the petitioners were entitled to challenge the
impugned order passed by the State Commission by invoking writ
jurisdiction of this Court because firstly, the impugned order passed by the
Bench comprising of a Single Member of the State Commission was an
order passed without jurisdiction and secondly, such an order dismissing
the appeal in default and not on merits could not be made subject matter
of a Revision Petition before the National Consumer Disputes Redressal
Forum, New Delhi, under Section 21(b) of the aforesaid Act. It was
submitted that on these two grounds the present Writ Petition was
maintainable and that the petitioners had a strong case to demonstrate that
the impugned order was unsustainable even on merits. According to the
learned Counsel, after the appeal was admitted before the State
Commission, the dealership agreement of the petitioners had expired and
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in August, 2015, the dealership establishment had been completely closed
down. It was submitted that this resulted in the Advocate appearing for
the petitioners before the State Commission not being able to obtain
instructions from the petitioners. As a consequence, the appeal stood
adjourned on certain dates before the State Commission and the
petitioners remained unaware about dismissal of the appeal in default by
the impugned order. It was contended that when the respondent filed
application under Section 27 of the aforesaid Act before the District Forum,
and notice of the same was received by the petitioners, that they become
aware of dismissal of the appeal and thereafter, they immediately filed the
present Writ Petition. It was submitted that the petitioners had a very
strong case in the appeal before the State Commission because the
complaint filed by the respondent before the District Forum was
fundamentally defective, in the absence of manufacturer of the vehicle
being made party. On this basis, it was submitted that it would be in the
interest of justice that the impugned order is set aside and the appeal is
directed to be heard and disposed of on merits. The learned Counsel for
the petitioners relied on number of judgments on the aspect of
maintainability of the Writ Petition, which shall be considered herein below.
7. Per contra, Mr. C.A. Joshi, learned Counsel appearing for the
respondent, submitted that the Writ Petition was not maintainable in view of
the alternative remedy available to the petitioners of filing Revision Petition
before the National Commission, under Section 21 (b) of the said Act. It
was submitted that as per the law laid down by the Hon'ble Supreme Court
and subsequently followed in a number of judgments, in spite of availability
of alternative remedy, this Court exercised its writ jurisdiction in three
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contingencies firstly, where the Writ Petition sought enforcement of any
fundamental rights, secondly, where there was failure of principles of
natural justice and thirdly, where the impugned order was wholly without
jurisdiction. It was submitted that the petitioners had failed to demonstrate
how their case fell within any of the aforesaid three contingencies and that
therefore, the Writ Petition was not maintainable. It was submitted that
perusal of the impugned order would show that on as many as 7 dates the
appeal had been adjourned and yet the petitioners had failed to file written
notes of arguments and that after granting sufficient opportunity to the
petitioners, the State Commission was constrained to dismiss the appeal
in default. It was submitted that remedy of filing Revision Petition was
certainly available to the petitioners and that therefore, the Writ Petition
deserved to be dismissed as not maintainable. It was submitted that the
petitioners had failed to demonstrate any special reasons as to why the
Writ Petition was required to be entertained or as to why the impugned
order deserved to be set aside. On this basis, the learned Counsel
submitted that the Writ Petition deserved to be dismissed.
8. Heard Counsel for the parties and perused the record. The
basis for the contention raised on behalf of the petitioners that the
impugned order is without jurisdiction, is that a Member of the State
Commission sitting singly could not have dismissed or disposed of the
appeal filed by the petitioners. In this regard, the learned Counsel placed
reliance on Section 14 read with Section 18 of the aforesaid Act. It was
contended that by the application of the aforesaid two provisions, it was
evident that the appeal could have been disposed of by the President of
the State Commission sitting with at least one more member and that the
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impugned order being passed a Bench of Single Member of the State
Commission was rendered without jurisdiction. In this regard, the learned
Counsel appearing for the petitioners placed reliance on an order passed
by the State Commission dated 11032011 in First Appeal No.A/14/363
( Vasan Automobiles Ltd., Akola and another vs Subhash Rajaram
). In the said judgment, the State Commission has held that
Vande
quorum of the District Forum is President and two Members and in an
exceptional case, if one of the Members is absent, the District Forum can
consist of President and one Member who can dispose of cases. The
said view of the State Commission was based on interpretation of Section
14 (2) and (2A) of the said Act by placing reliance on the same. It was
contended on behalf of the petitioners that since Section 18 of the said Act
lays down that the provisions of Sections 12, 13 and 14 of the said Act and
the Rules made therein for disposal of complaint by the District Forum,
shall be applicable to disposal of disputes by the State Commission, an
appeal could not be disposed of or dismissed by a Bench consisting of a
Single Member of the State Commission.
9. The said contention raised on behalf of the petitioners ignores
Section 16(1B)(i) and (ii) of the said Act. The said provision reads as
follows :
“16. Composition of the State Commission .—
(1B) (i) The jurisdiction, powers and authority of
the State Commission may be exercised by
Benches thereof.
(ii) A Bench may be constituted by the President
with one or more members as the President may
deem fit.”
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10. A bare perusal of the above quoted provisions shows that the
jurisdictional powers and authority of the State Commission can be
exercised by Benches thereof and a Bench may be constituted by the
President of the State Commission with one or more Members as the
President may deem fit. A proper reading of the aforesaid section clearly
shows that the President of the State Commission can certainly constitute
a Bench consisting of a Single Member of the State Commission. As
regards the contention raised on behalf of the petitioners based on Section
18 of the said Act, a perusal of the aforesaid provision shows that Sections
12, 13 and 14 of the said Act and the Rules framed thereunder for disposal
of complaint by the District Forum shall be applicable to disposal of
disputes before the State Commission. A proper reading of the said
provision clearly shows that Section 18 of the said Act lays down the
procedure applicable to the State Commission when it considers original
complaints filed before it. The said procedure would not apply to the
appeals that arise from orders passed by the District Forum and therefore,
there is no substance in the contention raised on behalf of the petitioners.
In fact, a perusal of the aforesaid judgment of the State Commission
relied upon by the learned Counsel for the petitioners in the case of
Vasan Automobiles Ltd., Akola and another vs Subhash Rajaram
Vande (supra), shows that the State Commission was considering the
issue of procedure to be adopted by the District Forum under Section 14 of
the said Act for disposal of an original complaint. The said judgment can
be of no assistance to the petitioners to claim that the impugned order
passed by a Bench consisting of Single Member of the State Commission,
was without jurisdiction. Therefore, on this ground, it cannot be said that
the Writ Petition of the petitioners is maintainable before this Court.
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11. The other ground raised on behalf of the petitioners while
insisting that there is no alternative remedy in the form of Revision Petition
under Section 21(b) of the aforesaid Act before the National Commission,
is based on an assertion that a Revision Petition would be maintainable
only against an order passed by the State Commission while disposing of
an appeal on merits and not against an order dismissing an appeal in
default. Section 21 (b) of the said Act reads as follows :
“Section 21 Jurisdiction of the National
Commission
(a)
(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.”
12. A perusal of the said provision nowhere indicates that a
Revision Petition would be maintainable before the National Commission
only against orders passed by the State Commission disposing of appeals
on merits. Even an order passed by the State Commission dismissing an
appeal in default could very well be made subject matter of challenge in a
Revision Petition before the National Commission. The learned Counsel
for the petitioners was unable to support the said contention raised on
behalf of the petitioners. In this situation, the learned Counsel for the
petitioners referred to and relied upon a number of judgments to contend
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that Writ Petitions in similar circumstances had been entertained by this
Court and that therefore, the present Writ Petition filed by the petitioners
was maintainable.
13. On going through the said judgments relied upon by the
learned Counsel for the petitioners, it was found that in judgments passed
by this Court in the cases of Hemlata w/o Kantilal Thole vs United India
Insurance Co.Ltd (W.P. No.8401 of 2013), Kapurchand Kotechan
Urban CoOp. Credit Society Ltd, Bhusawal and another vs Mangilal
s/o Bhikchand Jain (W.P. No.531 of 2014), The Branch Manager, State
Bank of India, Dhondakha Branch vs Dharmaraj Chindha Patil
(W.P.No.2811 of 2015), Kamlakar Ramsa Chawre vs State Consumer
Disputes Redressal Commission, Maharashtra Circuit Bench at
Nagpur and others (W.P. No.2697 of 2012), Shashikala
Rameshchandra Sinha (Dead) through Lrs. And others vs Ram
(W.P. No.5805 of 2015) and
Ramprasad Rathi Ashtavinayak developers
through is partners and others vs Gulam Mustafa Khan s/o Gulam
Ahmad Khan and another (W.P. No.864 of 2017), the question of
availability of alternative remedy under Section 21(b) of the aforesaid Act,
was not even raised and therefore, there was no discussion and finding on
the very maintainability of the Writ Petitions. Thus, the said judgments can
be of no assistance to the petitioners.
14. In other judgments relied upon by the learned Counsel for the
petitioners in the cases of Anita Chandrakant Patil vs The Circle
Officer, LIC of India and another (WP No.7718 of 2015), Shivaji s/o
Rangnath Khilari vs The Manager, Wasan Automobiles and another
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(W.P. No.9793 of 2014), Miss. Radhika d/o Rajesh Mandhani vs Dr.
Dilip Pathwardhan and another (WP No.3985 of 2012), The Assistant
Engineer, M.S.E.B. Risod, District Washim and another vs Bhikaji
Bhaurao Gavhane and others (WP No.4493 of 2013), M/s Ankur Seeds
(WP No.6286
P. Ltd., vs Ashok s/o Janardhan Dhumale and another
of 2013) and Ganpat s/o Punjaji Chouke vs Provident Fund
Commissioner and others (WP No.330 of 2016), this Court referred to
the availability of the aforesaid alternative remedy under Section 21(b) of
the aforesaid Act, and yet entertained the Writ Petitions, noting in each
case that there were special circumstances that required exercise of writ
jurisdiction, despite availability of the alternative remedy. In the said cases,
this Court found that there were senior citizens or minors or ladies who
were challenging the orders of dismissal in default passed by the State
Commission and in such circumstances, despite availability of the said
alternative remedy, this Court deemed it fit to exercise writ jurisdiction to
entertain the Writ Petitions.
15. Thus, it becomes clear that although alternative remedy, in
the form of Section 21(b) of the aforesaid Act, was available to the
petitioners in the present case, they chose to file the present Writ Petition.
It could be entertained by this Court, if the petitioners also are able to
demonstrate certain special facts and circumstances for exercise of writ
jurisdiction. The learned Counsel for the respondent has insisted that the
Writ Petition could be entertained by this Court despite availability of
alternative remedy, only in the three contingencies referred to by him. In
this context, the learned Counsel relied upon judgment of the Hon'ble
Supreme Court in the case of Harbanslal Sahnia and another vs Indian
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Oil Corporn. Ltd and others , (2003) 2 SCC 107 . But, a perusal of
paragraph 7 of the said judgment shows that the Hon'ble Supreme Court
has laid down that the High Court may exercise writ jurisdiction despite
availability of alternative remedy in at least three contingencies.
Thereafter, the Hon'ble Supreme Court has stated three contingencies
that are referred to and relied upon by the learned Counsel for the
respondents. But, the use of the words “at least three contingencies”,
shows that there could be other circumstances also wherein writ
jurisdiction could be exercised by the High Court. In this context, the
judgment relied upon by the learned Counsel for the respondent in the
case of Commissioner of Income Tax and others vs Chhabil Dass
Agarwal , reported at (2014) 1 SCC 603 becomes relevant. Although in
the said case, the Hon'ble Supreme Court held that a Writ Petition was not
maintainable when a statutory remedy was available, in paragraph 11 of
the said judgment, it was held as follows :
“15. Before discussing the fact proposition, we
would notice the principle of law as laid down by
this Court. It is settled law that nonentertainment of
petitions under writ jurisdiction by the High Court
when an efficacious alternative remedy is available
is a rule of selfimposed limitation. It is essentially a
rule of policy, convenience and discretion rather
than a rule of law. Undoubtedly, it is within the
discretion of the High Court to grant relief under
Article 226 despite the existence of an alternative
remedy. However, the High Court must not interfere
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if there is an adequate efficacious alternative
remedy available to the petitioner and he has
approached the High Court without availing the
same unless he has made out an exceptional case
warranting such interference or there exist sufficient
grounds to invoke the extraordinary jurisdiction
under Article 226. (See: State of U.P. vs.
Mohammad Nooh , AIR 1958 SC 86; Titaghur Paper
Mills Co. Ltd. vs. State of Orissa , (1983) 2 SCC
433; Harbanslal Sahnia vs. Indian Oil Corpn. Ltd .,
(2003) 2 SCC 107; State of H.P. vs. Gujarat
Ambuja Cement Ltd ., (2005) 6 SCC 499).
16. Therefore, it becomes clear that the High Court not
entertaining a Writ Petition when an alternative remedy is available, is a
rule of self imposed limitation, being more a rule of prudence and policy,
rather that being a rule of law. The High Court has discretion to exercise
writ jurisdiction even when an alternative remedy is available to the
petitioners. But such discretion could be exercised in favour of the
petitioners, if they are able to make out an exceptional case showing that
special facts and circumstances existed for exercise of such jurisdiction.
17. Applying the aforesaid test to the facts of the present case, it
will have to be determined as to whether the present Writ Petition
deserves to be dismissed as not maintainable. It has come on record that
the petitioners had filed appeal before the State Commission challenging
the order passed by the District Forum, wherein notice was issued and
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interim stay was granted, subject to the petitioners depositing the entire
amount before the District Forum in terms of order passed by the said
Forum. Admittedly, the petitioners deposited the entire amount before the
District Forum. Consequently, the appeal was admitted by the State
Commission on 21012015. The parties were directed to file their
respective written notes of arguments. It has also come on record that the
dealership agreement of the petitioners expired in the month of July,
2015, and that the entire establishment of the dealership was completely
closed down in August, 2015. The petitioner handed over possession of
the dealership premises to the landlord as a consequence of closing down
of the dealership establishment. In these circumstances, it was contended
on behalf of the petitioners that their Advocate was unable to file written
notes of arguments and the appeal was adjourned from time to time. The
petitioners were under the impression that since the appeal was admitted
and interim relief was granted in their favour as they had deposited the
entire amount before the District Forum, the appeal would be considered
on merits by the State Commission. As their Advocate could not contact
them, the petitioners remained unaware of dismissal of their appeal in
default on 12102017.
18. It is the case of the petitioners, that after the appeal was
dismissed in default by the impugned order, the respondent filed
application under Section 27 of the aforesaid Act before the District Forum
for implementation of order passed by the said Forum. In this application, it
is found that the respondent himself stated that notices sent by him after
dismissal of the appeal in default to the petitioners, were returned with the
remarks that “the Company had closed down” and that the “addressee
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had left”. This lends credence to the contentions raised on behalf of the
petitioners before this Court, that they were unaware of passing of the
impugned order, whereby the appeal was dismissed in default. The record
shows that it was when the Registrar of the District Forum sent notice to
the petitioner no.2. (Director of the Company) to his address at Mumbai
through the Police Commissioner of Mumbai, on 20032018, which was
returnable on 07042018, that time the petitioners became aware for the
first time about filing of the application under Section 27 of the aforesaid
Act, due to dismissal of their appeal in default by the impugned order.
The record further shows that upon receipt of the aforesaid notice/
summons, through the Commissioner of Police, Mumbai, the petitioners
immediately filed present Writ Petition on 17042018, to challenge the
impugned order passed by the State Commission. While issuing notice on
24042018, this Court granted adinterim relief to the petitioners of stay of
further proceedings in the application filed by the respondent before the
District Forum, under Section 17 of the said Act. These facts do show that
there exist special facts and circumstances in the present case for the
petitioners to invoke writ jurisdiction of this Court under Article 226 of the
Constitution of India. This, coupled with the fact that since the appeal of
the petitioners was admitted by the State Commission with interim relief in
their favour for being considered and disposed of on merits, the State
Commission could have considered the appeal on merits in view of the
documents available on record and yet it dismissed the appeal only on the
ground that written notes of arguments had not been filed on behalf of the
petitioners despite several adjournments. In this backdrop, the main
ground raised in the appeal before the State Commission becomes crucial
as the petitioners have pointed out that the complaint filed by the
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respondent before the District Forum itself was fundamentally defective
and not maintainable, because the manufacturer of the vehicle was not
made party, dispite the fact that a specific prayer for providing a new
vehicle was made on the ground that there were serious manufacturing
defects. This aspect goes to the very root of the matter, thereby showing
that this is another circumstance indicating that grave prejudice was
caused to the petitioners by dismissal of their appeal in default by the
State Commission.
19. In view of the above, this Court holds that although alternative
remedy of filing Revision Petition under Section 21(b) of the aforesaid Act
was available to the petitioners to challenge the impugned order, in the
peculiar facts and circumstances of the present case, the Writ Petition filed
by the petitioners is maintainable. As discussed above, the facts and
circumstances of the present case show, that the State Commission
ought to have decided the appeal of the petitioners on merits, in stead of
dismissing it in default.
20. Nonetheless, it cannot be ignored that inconvenience has
been caused to the respondent, because of the number of adjournments
taken on behalf of the petitioners after the appeal was admitted before the
State Commission. The respondent deserves to be compensated for the
inconvenience caused to him. Hence, this Court is of the opinion that the
petitioners need to pay costs to the respondent.
21. Accordingly, the present Writ Petition is allowed. The
impugned order passed by the State Commission, is quashed and set
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aside. The parties are relegated to appear before the State Commission.
The appeal of the petitioners is directed to be decided by the State
Commission on merits expeditiously and in any case within a period of
three months from today. The parties shall appear before the State
Commission on 11032019. In the facts and circumstances of the present
case, the petitioners shall pay costs of Rs. 25,000/ to the respondent
before 11032019 and produce proof of the same before the State
Commission. It is made clear that this Court has not expressed any
opinion on the merits of the case of the petitioners in their appeal, which
shall be decided by the State Commission in accordance with law.
22. Rule made absolute in above terms.
JUDGE
Deshmukh
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