Research › Search › Judgment

Calcutta High Court · body

2006 DIGILAW 88 (CAL)

DUNCANS INDUSTRIES LTD. v. HINDOLA DUTTA ROY

2006-02-16

PRATAP KUMAR RAY

body2006
Pratap Kumar Ray ( 1 ) SINCE the C. O. No. 3526 of 2005 and C. O. No. 3527 of 2005 both involved with the same question of law, both the matters are taken up for analogous hearing. ( 2 ) HEARD the learned Advocates appearing for the parties. ( 3 ) IN the instant case, the petitioner has challenged the judgment dated 5th August, 2005 passed by the District Consumer Disputes Redressal Forum, south 24-Parganas whereby and whereunder a direction was given to make all payments namely, the deposit of the complainants along with interest with further payment of compensation to the extent of Rs. 10,000/- for causing harassment. From the fact of the case it appears that the opposite party No. 1 moved before the said Consumer Forum alleging, inter alia, that despite several representations the company namely, M/s. Duncans Industries Limited did not refund their deposits along with the interest accrued. This application was resisted as filed under Section 12 of the Consumer Protection Act read with Section 13 thereof by the present petitioner, who was opposite party No. 1 contending inter alia, that the Consumer Forum had no jurisdiction, that already the Company Law board decided the issue and with reference to such the High Court has already framed a scheme for payment of the depositors and that all the relevant documents and papers were not placed for release of deposited amount. The consumer Forum decided all the points against the present petitioner. In this application, the petitioner has mainly thrashed the point that the decision of the company Law Board with reference to the application filed by the other depositors and subsequently framely of a scheme framed by the Calcutta High Court directing the payment of the depositors in the manner as stated thereto, the consumer Forum had no jurisdiction to interfere with that as virtually by the impugned order the scheme of the Calcutta High Court has been disturbed. It has been further contended that as per the scheme the petitioner, the opposite party No. 1, entitled to have refund. However, the learned Advocate for the opposite parties submits that no amount has been paid when the opposite parties approached to release the same in terms of the scheme and furthermore as they are not the parties in those proceedings, naturally, that orders shall not be binding upon him. However, the learned Advocate for the opposite parties submits that no amount has been paid when the opposite parties approached to release the same in terms of the scheme and furthermore as they are not the parties in those proceedings, naturally, that orders shall not be binding upon him. It has been -further contented by the opposite party, the applicant before the Consumer Forum that there is a provision of the appeal in terms of the Consumer Protection Act, 1986 being Section 15 thereof and under the Consumer Protection Act, 1986 which is a full-fledged Act dealing with the appeal provision also, the present petitioner without exhausting the appeal forum cannot file the application under Article 227 of the Constitution of India. ( 4 ) HAVING heard the learned Advocates appearing for the parties, this court is of the view that though the jurisdiction under Article 227 of the constitution of India is a constitutional jurisdiction vesting with the power of the high Court namely, supervisory power as well as the revisional power and exercise of such power though cannot be curtailed by any statutory provision, but still it is a settled law now that once there is an alternative appellate forum under any statute, the High Court will be slow to interfere with that matter by exercising the power either under Article 226 or 227 of the Constitution of India. Where there is a hierarchy of the appeal prescribed by a statute, the party must exhaust such statutory remedies and cannot divert the issue by approaching the High Court under Article 226 and/or 227 of the Constitution of India. It is a settled law of the Supreme Court since the year 1952 till this period. Reliance may be placed to the judgment passed in the case Virappa Filial v. Raman and raman, reported in AIR 1952 SC 192 . C. C. E v. Dun/op India Ltd. , reported in 1985 (1) SCC 260 , Ramendra Kishore Biswas v. State of Tipura, reported in 1999 (1) SCC 472 , Shibgonda Anna Patil v. State of Maharashtra, reported in 1999 (3) SCC 5 , Titagarh Paper Mills Co. Ltd. v. State of Orissa. reported in 1983 (2) SCC 433 , Whirlpool Corporation v. Registry of Trade Mark, reported in 1998 (8) SCC 1 , Tin Plate Co. Ltd. v. State of Orissa. reported in 1983 (2) SCC 433 , Whirlpool Corporation v. Registry of Trade Mark, reported in 1998 (8) SCC 1 , Tin Plate Co. India Ltd. v. State of Bihar, reported in 1998 (8)SCC 272 , Shila Debi v. Gospal Singh, reported in 1999 (1) SCC 209 and Punjab national Bank v. O. C. Kishnan, reported in 2001 (6) SCC 569 . Only exception as has been curved out by the Apex Court in that proposition where preference of the appeal would be nothing but approaching to the "caesar to Caesar wife" as discussed in the case Ram and Shyam Company v. State of Haryana, reported in 1985 (3) SCC 267 . ( 5 ) IN the instant case, this Court is not getting any material or foundation either from the pleadings or from the arguments that no effective remedy could be available by the said provision. The petitioner has remedy to approach the appellate authority under Section 15 of the said Act. ( 6 ) HAVING regard to such State of affairs without going into the merits of the case only on the point of maintainability of these applications in view of the existence of statutory appeal provision, this Court is not inclined to entertain these applications. ( 7 ) ACCORDINGLY, both the two applications stand dismissed as not maintainable, all interim orders stand vacated. There will be no order as to costs.