Akash Ganga Builders and Engg. (P) Ltd. and Another Vs. Smt. Shanta Rani Sharma - Court Judgment

Lokeshwar Prasad, President:

1. The present petition, filed by the petitioners, under Section 17(b) of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act), is directed against order dated 30.12.2002, passed by District Forum-VII, Sheikh Sarai, Phase-II, New Delhi in Case No. 299/2001 - entitled Smt. Shanta Rani Sharma v. Shri Ashok Arora (Director), M/s. Akash Ganga Builders and Engineers (P) Ltd. and Anr.

2. The facts, relevant for the disposal of the above mentioned petition, briefly stated, are that the respondent Smt. Shanta Rani Sharma initially had filed a complaint under Section 12 of the Act before the District Forum averring therein that she had booked a flat, bearing No. 104 on the First Floor of Ganga Darshan Apartments, Godawari Block, Haridwar, (Uttranchal) and for that purpose had paid a sum of Rs. 1,20,000/- to the petitioner. It was stated that subsequently that allotment was changed to No. 115 on the ground floor of Shiv Shakti Apartments against the original booking of Flat No. 104 in Ganga Darshan Apartments. It was stated that thereafter a meeting was held with the petitioners and the petitioners promised to give the possession of the flat booked, by 26.1.2000. It was further stated that no flats whatsoever were constructed at the site of Shiv Shakti Apartments by the petitioners. Alleging deficiency in service on the part of the petitioners, the respondent Smt. Shanta Rani Sharma in that complaint prayed that the amount paid by her to the petitioners be directed to be refunded to her together with interest @ 24% p.a. from the date of registration till payment. The respondent also claimed compensation of Rs. 1,00,000/- for mental agony and another sum of Rs. 15,000/- on account of litigation expenses.

3. A notice of the complaint was issued to the petitioners who were served through registered A.D. post and as none appeared on behalf of the petitioners, the petitioners were proceeded ex parte in the proceedings before the District Forum.

4. The learned District Forum vide order dated 21.12.2000, passed in Complaint Case No. 460/2000 - entitled Smt. Shanta Rani Sharma v. M/s. Akash Ganga Builders and Engg. (P) Ltd., held that the petitioners had indulged in ‘unfair trade practice and on the basis of the above finding directed the petitioners to refund the amount of Rs. 1,20,000/- to the respondent together with interest @ 18% p.a. from the date of booking till payment. The learned District Forum also directed the petitioners to pay a sum of Rs. 10,000/- to the respondent Smt. Shanta Rani Sharma for mental agony and cost of litigation.

5. The petitioners on 1.5.2001 filed an application for setting aside ex parte order dated 21.12.2000 passed by District Forum in Complaint Case No. 460/2000 - entitled Smt. Shanta Rani Sharma v. M/s. Akash Ganga Builders and Engineers (P) Ltd. The above mentioned application, filed by the petitioners has been rejected by the District Forum by means of a well-reasoned order dated 30.5.2001 (photocopy at pages 31-32 of the paper book).

6. Thereafter, the petitioners filed another application dated 26.12.2002 praying for the following reliefs :

(i) that the non-bailable warrant of arrest issued against the petitioner be stayed;

(ii) that the petitioner be given the opportunity to make the payment of Rs. 1,20,000/- in instalments less the amount already paid;

(iii) that the respondent Smt. Shanta Rani Sharma be directed to accept another cheque of Rs. 40,000/- from the petitioner;

(iv) that for the refund of the remaining amount, periodical instalments be fixed.

7. The above mentioned application, filed by the petitioners, has been rejected by the learned District Forum vide impugned order.

8. Feeling aggrieved, the petitioners have filed the above mentioned petition under Section 17(b) of the Act. We have heard the learned Counsel for the petitioners at length on the question of admission of the present petition and have also carefully gone through the documents/material on record. As already stated, the present petition has been filed by the petitioners under Section 17(b) of the Act. Powers under Section 17(b) of the Act are extra-ordinary powers and the same can be exercised by this Commission only in the circumstances/situations specified in Clause (b) of Section 17 of the Act and in no other circumstance/situation. In other words, the scope of a petition filed under Section 17(b) is limited one. Analogous provision exists in the Civil Procedure Code, 1908 (hereinafter referred to as ‘the CPC), in Section 115 dealing with ‘revisions. Even before the amendment effected in the C.P.C., by the amending Act of 1976, Section 115, C.P.C., as it exists prior to the amendment, had been subjected to a large number of judicial decisions and the scope and ambit of Section 115, C.P.C. has been dilated upon by various Courts including the Honble Supreme Court. In case Pandurang Dhondi Chougule and Ors. v. Maruti Hari Jadhav and Ors., AIR 1966 SC 153, their Lordships of the Honble Supreme Court, while examining the ambit and scope of Section 115 of the C.P.C., have held :

“The provisions of Section 115 of the Code have been examined by judicial decisions on several occasions. While exercising its jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact, however, gross they may be, or even errors of law, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. As Clauses (a), (b) and (c) of Section 115 indicate, it is only in cases where the subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may arise in proceeding instituted before subordinate Courts which are related to questions of jurisdiction. It is well-settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the Court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of Section 115 of the Code. But an erroneous decision on a question of law reached by the subordinate Court which has no relation to questions of jurisdiction of that Court, cannot be corrected by the High Court under Section 115.”

9. Thereafter in case M.L. Sethi v. R.P. Kapur, AIR 1972 SC 2379, it was held by their Lordships of the Honble Supreme Court that the jurisdiction of the High Court under Section 115 of the C.P.C. is of a limited character and the provisions contained in Section 115, C.P.C. are not directed against conclusions of law and fact in which question of jurisdiction is not involved. In the case of M.L. Sethi (supra), the Honble Supreme Court, referred with approval, the decision of the Privy Council in Rajah Amir Hassan Khan v. Sheo Baksh Singh, (1884) II Ind. App. 237 (PC), and in case Balakrishna Udayar v. Vasudeva Aiyar, AIR 1917 PC 71, the Honble Supreme Court quoted what the Privy Council had stated in case N.S. Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras, AIR 1949 PC 156. It was held that Section 115 empowers the High Court to satisfy itself on three matters : (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to have exercised jurisdiction; and (c) that in exercising jurisdiction the Court has not acted illegally, i.e. in breach of some provisions of law, or with material irregularity, i.e. by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision and if the High Court is satisfied on those three matters, it has no power to interfere because it differs from the conclusions of the subordinate Courts on questions of fact or law.

10. If the above criterion is applied to the present petition, in view of the position already explained, it cannot be stated in the given facts that the District Forum, while passing the impugned order, has exercised a jurisdiction not vested in it by law or has failed to exercise the jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with any other material irregularity.

11. Even otherwise, as per settled law, Redressal Agencies established under the Act are less concerned with technicalities and more concerned with substantial justice. In the present case equity is (sic.) of respondent which fact would be evident from the operative portion of the impugned order which reads as under :

“The record shows that an ex parte order was passed on 21.12.2000 by this Forum directing the judgment-debtor to pay the decretal amount along with interest to the decree-holder. Judgment-debtor moved an application for setting aside ex parte order which was rejected by this Forum vide order dated 14.5.2001. The said order was passed in the presence of the judgment-debtor. Thereafter on the motion of the decree-holder, proceedings were initiated under Section 27 of the Consumer Protection Act and after hearing the judgment-debtor, an order was passed on 30.5.2001 sentencing the judgment-debtor Mr. Arora to simple imprisonment for a period of one year. However, the presence of judgment debtor could not be procured despite non-bailable warrants issued against him on several occasions. The judgment-debtor, it appears, avoided his arrest. The present application is nothing but a ploy to prolong the payment and harass the decree-holder who is an old and infirm lady and who is waiting for redressal of her grievances for over 2 years. Part payment of decretal amount would not be a consolation to the decree- holder having regard to her old age. The application under consideration is without substance and there is no justification in staying the arrest of the judgment-debtor or deferring the penalty under Section 27 of the Consumer Protection Act. The application is, therefore, rejected. Put up on 7.1.2003 for further proceedings. Copy of this order be supplied to both the parties.”

(Underlined by us)

12. We are in perfect agreement with the observations made by the learned District Forum that the application, filed by the petitioners, before the District Forum was merely a ploy to prolong the payment of the dues of the respondent who is an old and infirm lady. The order being impugned in the present proceedings, therefore, suffers from no infirmity so as to call for any interference by this Commission in exercise of its extraordinary powers under Section 17(b) of the Act.

13. Thus, viewed from all angles, the above mentioned petition, filed by the petitioners, is devoid of substance. The same merits dismissal. Accordingly, the same is dismissed in-limine with no order as to costs.

Revision Petition dismissed.