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2011 DIGILAW 1108 (CAL)

Prabir Chatterjee v. Sunirmal Chakraborty

2011-08-16

SYAMAL KANTI CHAKRABARTI

body2011
JUDGMENT 1. Syamal Kanti Chakrabarti The present revisional application under Article 227 of the Constitution is directed against the order dated 13.01.2009 passed by the learned State Consumer Dispute Redressal Commission, West Bengal in Appeal No. FA 08/212 of 2008 arising out of order dated 05.03.2004 in DF Case No. 129/2003 passed by the learned District Forum at Alipore, South 24 Parganas. 2. THE petitioner contends that in course of their usual business of selling flats he made an agreement on 27.12.1993 with the opposite party for allotment of a flat at Diamond Tower, Diamond Harbour Road, Joka, South 24 Parganas. But he has not delivered the flat within the stipulated time for which the opposite party respondent filed a complaint before the learned District Redressal Forum at Alipore. THE said proceeding was finally dismissed by the learned District Consumer Forum on 05.03.2004 as not maintainable as barred by limitation. After four years the opposite party filed an appeal on 04.06.2008 being no. SC/A/212/2008 before the learned State Commission together with an application under Section 24A of the Consumer Protection Act. THE learned State Consumer Forum decided the matter ex parte on 12.01.2009 and being aggrieved by and dissatisfied with such order the petitioner has preferred this revisional application contending, inter alia, that the learned State Commission ought to have entertained and allowed his application under Section 24A of the Consumer Protection Act, 1986. It is also contended that the learned State Commission has failed to consider that the petitioner was unable to register the flat of the opposite party due to non-payment of full consideration amount for the said flat. As such the said order of the learned State Commission is liable to be quashed or set aside. The opposite party, however, has opposed the move and contended, inter alia, that the remedy sought for is not available under the revisional jurisdiction of this Hon'ble Court under Article 227 of the Constitution and as such there is no merit in this revisional application which should be dismissed. 3. IT is argued on behalf of the learned lawyer for the petitioner that in fact the date 13.01.2009 was fixed for consideration of the application for condonation of delay made by the appellant therein under Section 24A of the Consumer Protection Act. 3. IT is argued on behalf of the learned lawyer for the petitioner that in fact the date 13.01.2009 was fixed for consideration of the application for condonation of delay made by the appellant therein under Section 24A of the Consumer Protection Act. But by the impugned order the learned State Commission has erroneously disposed of the appeal itself which is not sustainable in law. In fact, no reason has been assigned or no opportunity has been given to the appellant to explain the delay of 1552 days in preferring the appeal. He has relied upon and referred to the decision reported in 2009(7) SCC 768 [Kandimalla Raghavaian and Company 'Vs.- National Insurance Company and Anr.]. The views of the Hon'ble Apex Court on the aforesaid point is quoted below: "Section 24-A bars any fora set up under the Act, from admitting an complaint, unless the complaint is filed within two years from the date on which the cause of action has arisen. The provision expressly casts a duty on the Commission, admitting a complaint, to dismiss a complaint unless the complaint satisfies the District Forum, the State Commission or the National Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action had arisen." 4. LEARNED lawyer for the opposite party on the contrary has held, inter alia, that in the instant case the complaint under Section 12 of the Consumer Protection Act was filed on 04.04.2003 claiming execution and registration of the deed of conveyance/ damages etc. and ultimately decided with the majority view on 23.11.2003 ignoring a dissenting judgement dated 11.08.2003. But no plausible explanation to the satisfaction of the learned State Commission was made available for which the prayer for condonation of delay made under Section 24A of the Act was ultimately dismissed with the consequential result of dismissal of appeal which could not be heard on merit being barred by limitation. Therefore, the learned State Commission did not commit any error which can be interfered with under Article 227 of the Constitution. Therefore, the learned State Commission did not commit any error which can be interfered with under Article 227 of the Constitution. In a good number of identical cases this Hon'ble Court has already decided that a party aggrieved by the decision of the State Commission may approach the National Commission only in view of the specific provision contained under Section 21 of the Consumer Protection Act. It is further contended that when there is a remedy available to the petitioner in the statute itself that remedy should be exhaustive. Therefore, without exhausting the remedy available under Section 21(b) the petitioner cannot approach this Hon'ble High Court under Article 227 of the Constitution. He has referred to and relied upon the principles laid down in 2009(1) CLJ (Cal) 929 [The Manager, Contai Co-operative Bank Ltd. and Anr. 'Vs.- Smt. Gouri Mandal] as well as the case of Nilmoni Mukherjee and Ors. 'Vs.- Asim Kumar Chattopadhyay and Anr. reported in 2008(1) CLJ (Cal) 893 in support of his contention that there is no merit in this revisional application which should be dismissed as not maintainable in law. From the rival contention of both the parties it appears that the only point for my consideration is whether the instant application under Article 227 of the Constitution is maintainable in law. 5. FOR the purpose of better appreciation the relevant provision laid down in Section 27A of the Consumer Protection Act, 1986 are quoted below: "27A. Appeal against order passed under section 27.- (1) Notwithstanding anything contained in the Code of Criminal Procedure 1973 (2 of 1974), an appeal under section 27, both on facts and on law, shall lie from ' (a) the order made by the District FORum to the State Commission; (b) the order made by the State Commission to the National Commission; and (c) the order made by the National Commission to the Supreme Court." 6. FROM a plain reading of the aforesaid provision it will appear that the legislature has specifically mentioned the appellate fora under Section 27A of the Act and in terms of Section 27A(1)(b) appeal shall lie against the order made by the State Commission to the National Commission. FROM a plain reading of the aforesaid provision it will appear that the legislature has specifically mentioned the appellate fora under Section 27A of the Act and in terms of Section 27A(1)(b) appeal shall lie against the order made by the State Commission to the National Commission. In the instant case the petitioner has approached this Hon'ble Court instead of approaching the National Commission for setting aside the order of the learned State Commission regarding rejection of an application made under Section 24A of the Act. It has been specifically provided in sub-Section 2 of Section 27A of the Act that except as provided in Section 27A of the Act no appeal shall lie to any Court from any order of a District Forum or a State Commission or the National Commission. From the hierarchical point of view it appears that the petitioner approached the State Commission under Clause (a) of Section 27(A)(i) of the Act. But being aggrieved by and dissatisfied with the order of the learned State Commission as specifically provided in Clause (b) of Section 27(A)(i) of the Act where the aggrieved party has chosen the appropriate appellate fora at the intermediate stage he cannot change the course bypassing the National Commission which is a component part of the whole organic structure of an appellate fora prescribed by the legislature in the special stature. 7. IN the case relied upon by the learned lawyer for the petitioner reported in (2009)7 SCC 768 the point of controversy was decided by the Hon'ble Apex Court relating to an application under Section 24A but the remedy was sought for after exhausting the proceeding in terms of Clause (C) of Section 27(A)(i) of the Act. The decision of the learned National Commission in the case was assailed before the Hon'ble Apex Court in connection with the determination of an application for condonation of delay under Section 24A of the Act. Therefore, I hold that the said principle laid down under different circumstances will not be applicable in this case. 8. A more appropriate case has been referred to and relied upon by the learned lawyer for the opposite party reported in 2008(1) CLJ (Cal) 893. In the said case of Nilmoni Mukherjee and Ors. 'Vs.- Asim Kumar Chattopadhyay and Anr. Therefore, I hold that the said principle laid down under different circumstances will not be applicable in this case. 8. A more appropriate case has been referred to and relied upon by the learned lawyer for the opposite party reported in 2008(1) CLJ (Cal) 893. In the said case of Nilmoni Mukherjee and Ors. 'Vs.- Asim Kumar Chattopadhyay and Anr. this Hon'ble Court has held, inter alia, "As such, from the ratio, as decided in the decisions quoted above, it is palpably clear that it is now the settled position of law that when there is an alternative remedy available in an alternative forum, as provided in the Act, then an aggrieved party should not be allowed to approach the High Court by way of filing a revisional applications under Article 227 of the Constitution of India. Under such circumstances, I fully agree with Mr. Roy Chowdhury that the present revisional applications are not maintainable in the High Court, as there is an alternative forum available to agitate the grievance of the petitioners". The same principle was followed by this Hon'ble Court in the case of the Manager, Contai Cooperative Bank Limited and Anr. Reported in 2009(1) CLJ 929 . Therefore, relying upon the above principles I hold that since there is an alternative remedy available in an alternative forum prescribed in the special Act itself, the aggrieved party should not be allowed to approach the High Court by way of filing revisional application under Article 227 of the Constitution. Accordingly, I hold that the instant application is not sustainable in law and the same is accordingly dismissed giving liberty to the petitioner to approach the appropriate forum for the remedy, if so advised, reserving rights and contentions of both the parties. 9. URGENT certified photocopies of this order, if applied for, be supplied to the parties, on compliance of all requisite formalities.