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2015 DIGILAW 643 (CAL)

HDFC Bank Limited v. Shibendu Ghosh

2015-07-31

MIR DARA SHEKO

body2015
JUDGMENT: Mir Dara Sheko, J. : 1. The revisional application under Article 227 of the Constitution of India has been directed by the appellants/petitioners HDFC Bank Limited against the Opposite Parties challenging the Order No.5 dated 31st October, 2011 passed by the State Consumer Disputes Redressal Commission West Bengal in S.C. Case No. FA/151/2011 by which the ex-parte order passed by the Consumer Disputes Redressal Forum Uttar Dinajpur at Raiganj in Consumer Complaint No.44 of 2010 dated 7.12.2010 has been affirmed. 2. Fact of the case, in brief, is that the opposite party No.1 obtaining loan of Rs.7,23,434/- repayable in 47 equal monthly installments purchased truck No. WB 73A 6689. The Opposite Party No.1 in terms of the loan agreement, which expired due to an efflux of time on April 01, 2009 paid only the first 43rd installments and neglected to pay the rest which fallen due during the period from 01.01.2009 to 01.04.2009. The petitioner bank issued notice dated 13.01.2010 asking the Opposite Party to pay the balance amounting to Rs.1,01,192/- failing which the petitioner would take possession of the vehicle in terms of the default clause of the agreement, and, while the petitioner on taking possession of the subject vehicle issued notice to sell on auction on failure to satisfy the dues the Opposite Party No.1 filed the petition of complaint under Section 12 of the Consumer Protection Act, 1986 before Uttar Dinajpur Consumer Disputes Redressal Forum. 3. The petitioner in compliance of the notice received from the District Forum appeared on 29th September, 2010, took time to file written version on that date and also on the following day. It is averred supported by affidavit that by order dated 28th October, 2010 next date of the case was fixed by the Forum on November 8, 2010 which was declared holiday due to sudden demise of the former Chief Minister of West Bengal late Siddartha Sankar Ray and the record being put up on November 9, 2010 next date of the case was fixed on 16.11.2010, and, as no steps taken on behalf of the revisionist on 16.11.2010, the case was posted on 30.11.2010 for ex-parte hearing and ex-parte affidavit-in-Chief having been filed on 30.11.2010 the impugned ex-parte order was passed by the District Forum on 07.12.2010. 4. 4. The revisionist contended that on November 9, 2010 Learned Advocate of the revisionist took query over phone and came to learn that December 08, 2010 was the next date of the case. In view of ex-parte disposal of the case the revisionist filed an application along with written version before the District Forum on December 23, 2010 for vacating the ex-parte order dated 12.07.2010 and restoration of the C.C. 44 of 2010 and said application was rejected by the District Forum on 6th January, 2011 upon hearing both sides. The Forum being led by the case of Jyotsana Arvind Kumar v Bombay Hospital Trust (1999) 1 Supreme 303 that the State Commission has no power to set aside its own ex-parte order, held that no Redressal Forum can proceed either under Order 9 rule 9 or Order 9 rule 13, C. P. Code.’ 5. Being aggrieved by the said order dated January 6, 2011 the petitioner preferred S.C. Appeal under Section 15 of the Consumer Protection Act, 1986 before the State Disputes Redressal Commission West Bengal and the State Commission turned down to interfere with the impugned order passed by the District Forum or to allow any opportunity of hearing on merit with the observation as follows: “At the hearing of the said complaint case it has been proved in evidence that the Complainant had issued a cheque dated 04.10.2010 for payment of the entire balance dues to the Appellant-Banker which has not been encashed by the Appellant – Banker. Since the Appellant – Banker has failed to contest the above complaint case and further since as per EMIs fixed by the Appellant – Banker the Complainant had issued the aforesaid cheque for payment of the entire balance due to the Banker, the complaint case has thus been allowed by awarding compensation as above in favour of the Complainant for forcible taking over possession of the vehicle in question in breach of principle of the law. Since no defense has been taken by the Appellant – Banker in the complaint case and further since there has been no material whatsoever in support of the Appellant – Banker to prove that any amount is still due to the Appellant – Banker from the Complainant in request of the loan taken by him for purchasing the aforesaid truck, we do not find any illegality and/or infirmity in the impugned judgment. The appeal is accordingly dismissed.” 6. Mr. Bose, Learned Advocate for the petitioner argued that there may be alternative an efficacious remedy provided under the statute but the same is not a bar to make interference by this Court with the impugned order in exercising the power of superintendence if this Court may satisfy that natural justice has been violated in stretching the minimum relief in favour of the revisionist by way of allowing hearing of opportunity, specially when grounds of appeal have been put in the tune of written version taking some legal points apart from merit. Admitting that the revisionist ought to have been much more vigilant in laying the written versions before the Forum well before the date of presentation, submission is, while the very route of the case has been challenged by questioning maintainability of the case under law as well as jurisdiction of the Forum then by allowing one opportunity of hearing to secure ends of justice the power of superintendence should be exercised by this Court to uproot the injustice not only incurred but recurred in succession. Mr. Bose, relied upon the case of : Auro Developers Vs. Mala Mukherjee reported in 2012 (1) CHN (CAL) 543 decided on December 23, 2011. Gainwell Enterprises Pvt. Ld. & Anr. Vs. Ashoke Kumar Agarwal & Ors. decided in C.O. No.231 of 2013. 7. Learned Advocate for the Opposite Party No.1 Mr. Aasif Hussain invited attention of the Court to the appellate jurisdiction as well as the revisional jurisdiction of the State Commission and the National Commission laid down respectively under Section 15 read with Section 17 & Section 19 read with 21 of the Consumer Protection Act, 1986. Submission is that remedy if any of the revisionist would have been lying before the National Commission at least within the ambit of Section 21(b) by way of revision if not by way of regular appeal under Section 21(a) of the Act. Mr. Aasif Hussain referred the case of Cicily Kallarackal Vs. Vehicle Factory decided by the Hon’ble Supreme Court on 06.08.2012 to ventilate his argument that when the jurisdiction of appeal or revision against the impugned order is vested to any Higher Forum, the instant application is liable to be rejected. Mr. Aasif Hussain referred the case of Cicily Kallarackal Vs. Vehicle Factory decided by the Hon’ble Supreme Court on 06.08.2012 to ventilate his argument that when the jurisdiction of appeal or revision against the impugned order is vested to any Higher Forum, the instant application is liable to be rejected. Submission is that it cannot be proper for the High Court to entertain the application in exercise of the power under Article 227 of the Constitution of India in allowing the petitioner to bypass the statutory remedy. Mr. Hussain also cited the case the National Insurance Company Limited Vs. Consumer Disputes Redressal Forum decided by this Court in W.P. No.228 of 2014 (Original Side) on 25.03.2014 where this Court held “I am conscious that the power of judicial review that a High Court is empowered to exercise in terms of the provisions of Article 226 of the Constitution cannot be granted either by any constitutional provision, far less by any ordinary law………………I am sure, the Supreme Court while deciding Cicily Kallarackal (supra) was aware of the decisions in Vishwabharathi (supra) as well as L. Chandra Kumar (supra), yet, has issued a direction of caution in regard to entertainment of a writ petition by the High Courts in which the order of the National Commission is under challenge. The writ jurisdiction that cannot be curtailed by the Constitution itself, has been sought to be taken away by the Supreme Court. Be that as it may, the decision in Cicily Kallarackal (supra) is that latest judgment on the point and even if I do not agree with the reason given therein, I am bound by Section 141 of the Constitution to abide by it.” Mr. Hussain further relied in the case of Rajeev Hitendra Pathak and Ors. Vs. Achyut Kashinath Karekar & Anr. Hussain further relied in the case of Rajeev Hitendra Pathak and Ors. Vs. Achyut Kashinath Karekar & Anr. reported in (2011)9 Supreme Court Cases 541 and inviting my attention to Section 22A of the Act concluded his argument that when the impugned application for setting aside ex-parte order was submitted before the District Forum and while the District Forum was not empowered to set aside his own order, even ex-parte, and the power of setting aside own ex-parte order having been vested only to National Commission the intention of the legislature is clear on the point and, therefore, the District Forum rightly had rejected the application of the revisionist by disallowing the restoration petition, and the revisionist having not availed of the forum available before the National Commission the instant appeal under Article 227 of the Constitution of India is liable to be dismissed. The decision of the Hon’ble Apex Court laid down in the case of Cicily Kallarackal Vs. Vehicle Factory was circulated amongst the Judges of all the High Court in the country presumably for the reason so that against order of any authority where the jurisdiction is vested only with the Hon’ble Supreme Court then High Court has got no jurisdiction adjudging propriety of any such order or issue in the name of exercise of unfettered jurisdiction available under Article 226. But in the case of hand the order under challenge has been passed by the State Commission upholding the order of the District Forum, against which under the Act next Forum would be the National Commission under Section 19 read with 21(a) (ii) or revision under Section 21(b) of the Consumer Protection Act, 1986. Therefore, the cases of Cicily Kallarackal (supra) or Rajeev Hitendra Pathak and Ors. (supra) are not coming on the way as hurdle in the case. 8. I have accepted the legal position as argued by Mr. Hussain that the District Forum or even the State Commission under the Act has not been vested with any power to set aside its own ex-parte orders. Admittedly the revisionist did not avail of the alternative remedy which was available either under Section 19 read with Section 21 or 21 (b) of the Act. Hussain that the District Forum or even the State Commission under the Act has not been vested with any power to set aside its own ex-parte orders. Admittedly the revisionist did not avail of the alternative remedy which was available either under Section 19 read with Section 21 or 21 (b) of the Act. Therefore, within the ambit of Article 227 of the Constitution of India the duty vests upon the Court to examine whether there is any scope of making interference with the impugned orders as urged by Mr. Bose. To explicit myself it is to be looked into whether there is any violation of natural justice in dealing with the decision making process caused by the State Commission in considering propriety of the order of the District Forum. 9. It appears that the petitioner while filed the application before the District Consumer Redressal Forum Uttar Dinajpur for vacating the ex-parte order dated 07.11.2010 with prayer to allow opportunity of hearing on merit, and submitted the written version along with the same, the District Forum had turned down said applications since the District Forum was not vested with the power under the Act to set aside its own order. But while against the said order the petitioner moved the State Commission and while the State Commission was free to act under Section 15 in entertaining appeal within the jurisdiction vested to it under Section 17(1) (a)(ii) since 17(1)(b) would not be applicable in the then circumstance of the case, and while in the written version the question of maintainability of the petition of complaint under the Act including jurisdiction of the District Forum in the matter was raised, and while those grounds also were taken in the Memo of Appeal before the State Commission, I find no discussion, observation and finding to that tune in the order under challenge. 10. It is pertinent to mention that the question of jurisdiction in the matter of adjudicating any legal disputes touches the very root of the case and the authority dealing with the disputes must satisfy itself that it has jurisdiction to deal with the issue and shall determine the maintainability point also if is urged. 10. It is pertinent to mention that the question of jurisdiction in the matter of adjudicating any legal disputes touches the very root of the case and the authority dealing with the disputes must satisfy itself that it has jurisdiction to deal with the issue and shall determine the maintainability point also if is urged. The State Commission while acting as the first appellate authority, could have examined those points of law touching maintainability of complaint under the Act and jurisdiction of the District Forum so that the propriety of the ex-parte order of the District Forum could have been tested in appeal. 11. Therefore, the State Commission committed illegality in the decision making process by not entertaining the grounds of appeal set out in the Memo of Appeal on merit and also by not answering to the defence of maintainability and jurisdiction of the District Forum in entertaining the petition of complaint of the present nature under Section 12 of the Act. In view of above observation and in exercise of the power of superintendence as I find absolutely wrong and illegality in the decision making process committed by the State Commission this Court has no other alternative but to interfere with the impugned order No.5 dated 31.10.2011 passed by the State Commission in the S.C. Case No.FA/151/2011. 12. The revisional application under Article 227 of the Constitution of India is allowed and the order No.5 dated 31st October, 2011 passed by the State Consumer Disputes Redressal Commission, West Bengal in S.C. Case No.FA/151/2011 is set aside with direction to State Commission to rehear the appeal upon notice to both sides and to dispose of the same to its discretion and satisfaction by pronouncing fresh judgment covering the points of maintainability and jurisdiction of the District Forum in entertaining the petition of complaint under Section 12 of the Consumer Protection Act, 1986, of course, without being carried out or influenced by any observation of this Court made in deciding the instant application. No order as to costs. Issue copy of such order to the State Consumer Disputes Redressal Commission, West Bengal at once for information and necessary action. Parties are given liberty also to approach the State Commission accordingly. Urgent certified copy be supplied to the parties if applied for.