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1989 DIGILAW 213 (RAJ)

Jaipur Stock Exchange Ltd. Jaipur v. C. P. Mehta

1989-03-29

DAMODAR THANVI, S.K.M.LODHA, SARIA KHAN

body1989
—Order— By this appeal under s. 15 of the Consumer Protection Act, 1986 (Act No. 68 of 1986) ("the Act" herein). Opposite party No. 1 appellant questions the legality and correctness of the order dated 21-2-89, passed by the District Forum, Jaipur in Complaint Case No. 25 of 1989. 2. The Respondents No. 1 to 4 are complainants. The appellant is opposite-party No. 1 in the complaint. The names of respondents No. 5 to 11 were deleted as the appellant submitted an application on 17-3-89 that they are not necessary parties. Respondents No. 1 to 4 and the appellant will be referred to as "the complainants-opposite party No. 1" respectively in this appeal. 3. The complainants filed a complaint dated 17-2-89 purporting to be under s. 12 of the Act against opposite party no. 1 and seven others before the District Forum, Jaipur for various reliefs mentioned in the last part of the complaint. Along with it, some documents were filed. On 21.2.89, the District Forum, Jaipur passed the order under appeal. It will be useful to read the material part of it, which reads as under :— "On behalf of non-petitioner No. 1, an objection of the jurisdiction of the Forum has been raised which has to be decided on receiving the reply of the State Govt. Meanwhile the status quo as it exists today shall be maintained by the non-petitioner No. 1 ..In any case the status quo will have to be maintained till the State Government replies and about jurisdiction the arguments will be heard on the next date of hearing. Put up for arguments and reply on 27-2-89 .." 4. Aggrieved by this order, the appeal has been filed by the appellant-opposite party No. 1 challenging the above mentioned order. 5 We have heard Mr. U. N. Bhandari, assisted by Mr. M. R. Singhvi and Mr. L. L. Jain, Advocates for the appellant and Mr. Prem Surana, Advocate for respondents no. .1 to 4 (complainants) on March 17,1989. We also directed the learned counsel, if they so like, to give the written submissions in support of the respective contentions in the appeal latest by 18-3-89 at 10.30 AM after exchanging the written submissions with each other. Both the learned counsel have submitted the written submissions in support of the respective contentions. .1 to 4 (complainants) on March 17,1989. We also directed the learned counsel, if they so like, to give the written submissions in support of the respective contentions in the appeal latest by 18-3-89 at 10.30 AM after exchanging the written submissions with each other. Both the learned counsel have submitted the written submissions in support of the respective contentions. In the light of the arguments and written submissions, we have considered the record of the case and in particular the complaint and the documents, accompanying it and the application under O. VII, r, 11. C.P.C. raising preliminary objections regarding the maintainability of the complaint. Opposite-party no. 1 has also filed its version of the case before the District Forum along with the documents. 6. Mr. Prem Surana, learned counsel for respondents no. 1 to 4 (complainants) has raised a preliminary objection that the appeal is not maintainable for the reason that S. 15 of the Act provides for appeal before the State Commission against the order of District Forum passed under s. 14 of the Act and as no order has been passed under s. 14 of the Act by the District Forum appeal against the interlocutory order is not maintainable. He also submitted that point regarding jurisdiction is for the consideration of the District Forum and so at this stage the question of jurisdiction should not be determined. It is correct that the District Forum has not passed any order under s. 14 of the Act as proceedings under s. 13 of the Act have not been concluded as yet. S. 15 of the Act lays down that any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of 30 days from the date of the order. S. 15 of the Act is conspicuously silent as there is no reference to the order made by the District Forum under s. 14 of the Act. S. 15 of the Act is conspicuously silent as there is no reference to the order made by the District Forum under s. 14 of the Act. We do not consider it necessary to make a probe in the matter for the reason that under s. 17(b) of the Act the State Commission has jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has acted in exercise of its jurisdiction illegally or with material irregularity. Even if the appeal is not maintainable as contended by Mr. Surana, it can be treated and decided as a revision. The provisions of s. 17(b) of the Act are similar to the provisions contained in s. 115(1) C.P.C. excluding the proviso. The preliminary objection is, accordingly, over-ruled. 7. The objection of inherent lack of jurisdiction was raised on behalf of opposite-party no. 1 before the District Forum. The District Forum has not decided the question of jurisdiction as yet and before deciding the question of jurisdiction, it passed the order under appeal regarding maintaining status quo as it existed on 21-2-89. Mr. U. N. Bhandari, learned counsel for the appellant argued that the District Forum has no jurisdiction to entertain and try the complaint filed by the complainants and so it could not pass the order of status quo and further that the order which has been passed is not contemplated by any provisions of the Act. He invited our attention to the definition of Stock Exchange contained in s. 2(j) of the Securities Contracts (Regulation) Act, 1956 (for short the Act of 1956") which is as under :— "(j) "stock exchange" means any body of individuals, whether incorporated or not, constituted for the purpose of assisting,regulating or controlling the business of buying, selling or dealing in securities." "Securities" have been defined in s. 2(h) of the Act of 1956. Sec. 3 of the Act of 1956 deals with application for recognition of Stock Exchanges. Sec. 3 of the Act of 1956 deals with application for recognition of Stock Exchanges. He pressed that s. 12 of the Act which lays down manner in which a complaint shall be made is not at all attracted, for, stock exchange merely enrols members to practise profession and it only regulates and controls the working of its members including taking disciplinary action. The submission of the learned counsel for the appellant in this regard is that the Stock exchange as such does not itself sell any goods or render any service and it is only the members of the Stock Exchange who render services and as. the members of the stock Exchange have not started functioning in dealing with the transactions of securities, no complaint as such could be filed under s. 12 of the Act. This is resisted by the learned counsel for respondents no. 1 to 4. Mr. Surana submitted that opposite party no. 1 is not a recognised Stock Exchange as it has not been recognised by the Central Govt. under s. 4 of the Act and that notification has been issued by the Central Government in the Gazette of India and also in the Official Gazette of the State. According to Mr. Surana member means a member of recognised Stock Exchange, i.e. admitted after recognition of the Stock Exchange. Mr. Surana invited our attention to the definition of the consumer given in s. 2(l)(d) and also to the definition of service mentioned in s. 2(1 )(o) of the Act. He referred to the definition of the complaint and the complainant contained in s. 2(l)(c) and (b) of the Act respectively. According to the learned counsel for the complainants, the subject-matter of the complaint falls within the four corners of the above definitions. 8. We have examined the complaint, reply thereto and the application filed by opposite party no. 1 and have also considered the aforementioned provisions of the Act of 1956 as well as of the Act. Before granting the interlocutory order regarding maintaining the status quo, the District Forum should have satisfied itself whether it has jurisdiction to entertain and try the complaint purporting to be under s. 12 of the Act. It has, as stated above, merely rest contended by saying that the question of jurisdiction raised by opposite party no. 1 will be decided on receiving the reply of the State Govt. It has, as stated above, merely rest contended by saying that the question of jurisdiction raised by opposite party no. 1 will be decided on receiving the reply of the State Govt. and that in any case the status quo will have to be maintained till the State Government replies and that about jurisdiction the arguments will be heard on the next date. An interim order passed without jurisdiction is liable to revision. Before passing the order, the District Forum should have also considered the questions of prima facie case, balance of convenience and irreparable injury and that in the interest of justice such an order was necessary. In this case a serious question was raised on behalf of opposite party no. 1 that the District Forum could not invoke the provisions of the Act, and that it has no jurisdiction to entertain, try and determine it. It should have for the limited purpose, recorded a finding that it has jurisdiction to entertain the complaint under the Act and was competent to grant relief/reliefs prayed for by the complainants under sec. 14 of the Act. 9. Having considered the order of the District Forum we are satisfied that it has not applied its mind to the various provisions of the Act of 1956 as well as of the Act before passing the interim order under appeal. It is well settled that if the District Forum had/ has no jurisdiction to entertain the complaint, the order passed by it regarding status quo is without jurisdiction. Now, it will be better to decide the question of jurisdiction after getting replies of all the contesting opposite parties, if they choose to file the replies. The three essential pre-requisite conditions for the grant of interim order were also not taken into consideration by the District Forum. Its order, thus, stands vitiated on this count also and for this reason the District Forum has exercised its jurisdiction with material irregularity. 10. For the aforesaid reasons, the appeal succeeds. It is allowed and the order dated 21-2-89 passed by the District Forum, Jaipur, in so far as relates to the direction for maintaining status quo as it existed on that date is set aside. 11. 10. For the aforesaid reasons, the appeal succeeds. It is allowed and the order dated 21-2-89 passed by the District Forum, Jaipur, in so far as relates to the direction for maintaining status quo as it existed on that date is set aside. 11. The District Forum, Jaipur is directed to decide the question whether it has jurisdiction to entertain and decide the complaint under the Consumer Protection Act, 1986 (Act No. 68 of 1986) after getting the replies of all the opposite parties without unavoidable delay uninfluenced by the observations made by the State Commission in this order. It will, however, be open to the District Forum, Jaipur to pass any appropriate interim order which the facts and circumstances of the case may warrant after determining the question of jurisdiction and maintainability of the complaint under the Consumer Protection Act, 1986 in accordance with law, and keeping in view the observations made in the order. The appellant (opposite party no. 1 in the complaint) shall also not take any further action on the applications of membership received upto Feb. 25, 1989 until the question of jurisdiction and maintainability of the complaint, is decided. There will be no order as to the costs of the appeal. 12. The copies of the order may be sent and supplied to the appellant as well as respondents no. 1 to 4 (complainants) free of cost after the order is ready. 13. The record received from the District Forum, Jaipur alongwith the copy of the order be sent back to it. 14. Order pronounced on March 29, 1989.