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2024 DIGILAW 1273 (AP)

G. Nageswara Rao v. State of Andhra Pradesh

2024-09-06

DHIRAJ SINGH THAKUR, NINALA JAYASURYA

body2024
ORDER Ninala Jayasurya, J. 1. The petitioner herein aggrieved by the Order dated 14.03.2024 of the District Consumer Disputes Redressal Commission, Vizianagaram (hereinafter referred to “The Commission”), in C.C.No.33 of 2023 filed the present Writ Petition. 2. The petitioners filed C.C.No.33 of 2023 against the respondent Nos.3 to 5, inter alia, seeking a direction to (a) deliver the original title deed dated 23.06.2010 in respect of a plot bearing No.69/B, IDA, Nellimarla, which was furnished as security and created an equitable mortgage for the loan availed from the Central Bank of India, (b) pay a sum of Rs.50,00,000/-towards loss of the document and deficiency of service for the failure on the part of the Bank in delivering the original document in respect of the said plot, and (c) pay a sum of Rs.40,00,000/-towards mental agony and damages to the petitioners/complainants, apart from costs of Rs.2,00,000/-. 3. The respondent-Bank contested the matter by filing counter affidavit. The Commission on considering the evidence, both oral and documentary, adduced by the parties before it, formulated the following points for consideration: 1. Whether the Commission has no jurisdiction to entertain the complaint? 2. Whether there is deficiency of service on the part of the Opposite Parties? 3. Whether the Complainants are entitled for the reliefs? 4. What relief? 4. The Commission answered Point No.1 in favour of the petitioners/complainants holding that it has got jurisdiction to entertain the complaint. So far as Point No.2 is concerned, the Commission opined that there is deficiency of service on part of the Bank. With reference to Point No.3, the Commission, taking into consideration of the orders passed by the DRT, Visakhapatnam in S.A.No.6 of 2016, in respect of the above said Plot No.69/B, directed the petitioners/complainants to deposit an amount of Rs.90,38,000/-in Fixed Deposit with the respondent-Bank towards the sale consideration of the auctioned property/plot, which was set aside by the DRT, Visakhapatnam, vide order dated 06.10.2021 in S.A.No.6 of 2016 and the Bank to deliver the original title deed of the said plot, within 15 days of such deposit. Further that if the complainants fail to deposit the said amount within the stipulated time, the Bank can proceed to recover the dues from them by following the procedure under the SARFAESI Act as per the directions of the DRT in S.A.No.6 of 2016 dated 06.10.2021. 5. Further that if the complainants fail to deposit the said amount within the stipulated time, the Bank can proceed to recover the dues from them by following the procedure under the SARFAESI Act as per the directions of the DRT in S.A.No.6 of 2016 dated 06.10.2021. 5. Heard the learned counsel for the petitioners and the learned counsel appearing on behalf of the Bank. 6. Petitioner’s counsel mainly contended that the directions of the DRT referred to above with regard to deposit of the amounts, as also granting liberty to the Bank to invoke the provisions of SARFAESI Act on failure to deposit the amount within the stipulated time, amounts to exercise of excessive jurisdiction and contrary to the provisions of the Consumer Protection Act (for short “the Act”). She submits that the Commission having recorded categorical findings that there is deficiency of service on the part of the respondent-Bank should have granted the relief sought for by the petitioners/complainants, without imposing any conditions. She submits while exercising powers under Section 39 of the Act, the Commission has no jurisdiction to issue any such direction for recovery of the alleged dues from the petitioners, under the provisions of the SARFAESI Act. She submits that even if there are any dues payable by the petitioners, it is for the respondent-Bank to seek recourse to Law and the directions referred to above are beyond the scope of the complaint, the relief sought for by the petitioners/complainants and the jurisdiction vested in the Commission under Section 39 of the Act. She submits that by virtue of the impugned order, the petitioners are placed in a much worse situation than before filing the complaint and at any rate, the directions as contained therein are liable to be set aside, as the same are in exercise of excessive jurisdiction, unjust and arbitrary. 7. Learned counsel for respondent-bank made submissions to sustain the order challenged in the Writ Petition. 8. This Court has considered the submissions made and perused the material on record. 9. At the outset, it is pertinent to mention that against the impugned order passed by the Commission an appeal lies to the State Consumer Disputes Redressal Commission under Section 41 of the Act. 8. This Court has considered the submissions made and perused the material on record. 9. At the outset, it is pertinent to mention that against the impugned order passed by the Commission an appeal lies to the State Consumer Disputes Redressal Commission under Section 41 of the Act. However, this Court is inclined to examine the matter with reference to the contention that the directions issued by the Commission are contrary to Section 39 of the Act and is in excessive exercise of the jurisdiction by the Commission. 10. Section 39 of the Act reads as follows: “39. However, this Court is inclined to examine the matter with reference to the contention that the directions issued by the Commission are contrary to Section 39 of the Act and is in excessive exercise of the jurisdiction by the Commission. 10. Section 39 of the Act reads as follows: “39. Findings of District Commission.—(1) Where the District Commission is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services or any unfair trade practices, or claims for compensation under product liability are proved, it shall issue an order to the opposite party directing him to do one or more of the following, namely:— (a) to remove the defect pointed out by the appropriate laboratory from the goods in question; (b) to replace the goods with new goods of similar description which shall be free from any defect; (c) to return to the complainant the price, or, as the case may be, the charges paid by the complainant along with such interest on such price or charges as may be decided; (d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party: Provided that the District Commission shall have the power to grant punitive damages in such circumstances as it deems fit; (e) to pay such amount as may be awarded by it as compensation in a product liability action under Chapter VI; (f) to remove the defects in goods or deficiencies in the services in question; (g) to discontinue the unfair trade practice or restrictive trade practice and not to repeat them; (h) not to offer the hazardous or unsafe goods for sale; (i) to withdraw the hazardous goods from being offered for sale; (j) to cease manufacture of hazardous goods and to desist from offering services which are hazardous in nature; (k) to pay such sum as may be determined by it, if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently: Provided that the minimum amount of sum so payable shall not be less than twenty-five per cent of the value of such defective goods sold or service provided, as the case may be, to such consumers; (l) to issue corrective advertisement to neutralise the effect of misleading advertisement at the cost of the opposite party responsible for issuing such misleading advertisement; (m) to provide for adequate costs to parties; and (n) to cease and desist from issuing any misleading advertisement. (2) xxxx (3) xxxx (4) xxxx” 11. Thus, a reading of the above provision of the Law would go to show that the Commission on coming to a conclusion that there is a deficiency in service, inter alia, is empowered to remove defects in goods or remove deficiencies, grant compensation to the consumer/complainant for any loss or injury due to the negligence of the opposite party and punitive damages, as it deems fit. However, as noted above, the Commission having recorded categorical findings with reference to the deficiency of service on the part of the Bank, curiously imposed a condition to deliver the original document to the petitioners/complaints, subject to their depositing an amount of Rs.90,38,000/-by referring to the orders of the DRT Visakhapatnam in S.A.No. 2 of 2016. The Commission has also provided that failure to deposit the said amount within the stipulated time would entail the bank to invoke the provisions of SARFAESI Act. Imposition of such a condition for return/delivery of the documents and empowering the Bank to invoke the provisions of the SARFAESI Act, in the event of failure to deposit the amount, is beyond the scope of the complaint and the powers conferred under Section 39 of the Act. Once the Commission arrives at a conclusion that there is a deficiency of service, it should grant the reliefs in terms of Section 39 of the Act, yet, the Commission issued directions exceeding the jurisdiction vested in it and the same in fact, amounts to granting a relief to the opposite party/Bank in a proceeding not instituted by it, which is not sustainable in law. 12. The Hon’ble Supreme Court of India in T.C.Basappa v T. Nagappa and Another, (1954) 1 SCC 905 succinctly dealt with the essential features of Writ of Certiorari and inter alia held that a patent error can be corrected by certiorari, but not a mere wrong decision. It is axiomatic that some wrong decision cannot be corrected by a writ of Certiorari as that would be using it as the cloak of an appeal in disguise, but a manifest error apparent on the face of the proceedings based on clear ignorance or disregard of the provisions of law or absence of or excess of jurisdiction when shown can be so corrected. Though the present Writ Petition is filed seeking a Mandamus, this Court is satisfied that it is a grave case where the Commission acted in excess of the jurisdiction vested in it, sufficient grounds exists and a case is made out warranting exercise of powers under Article 226 of the Constitution of India, that the remedy of appeal is not a bar, in the facts and circumstances of the case. 13. Accordingly, the order under challenge is set aside. The 2nd respondent shall pass orders, afresh, in accordance with law, as expeditiously as possible. 14. The Writ Petition is allowed to the extent indicated above. No costs. 15. Consequently, the Miscellaneous Applications pending, if any, shall also stand dismissed.