High Court dismissed a writ petition seeking adjustment of consumer dispute payments via CPC application. Bench noted disputed factual issues and availability of Section 21(b) remedy, declining to adjudicate on contentions. Petition dismissed.
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THE HON’BLE SRI JUSTICE V.V.S.RAO AND
THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY
WRIT PETITION No.23102 OF 2011
28.03.2012
Between:
M/s.Lalwani Agricultural and Dairy Farm
... Petitioner
And
Akash Enclave Residents Welfare Association Rep. by its President B.Satyanarayana
... Respondent
THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY
WRIT PETITION No.23102 OF 2011
ORDER: (Per Hon’ble Sri Justice V.V.S.Rao)
The petitioner is opposite party in C.D.No.102 of 2001 filed by the first respondent before the State Consumer Disputes Redressal Commission (the State Commission, for brevity). The consumer case was filed seeking a direction to the petitioner, a firm engaged in the construction of flats – to pay an amount of Rs.5 lakhs to rectify the defects mentioned in the Commissioner’s report. It was allowed on 31.12.2005. Aggrieved, the petitioner carried the matter in appeal to the National Consumer Disputes Redressal Commission (the National Commission, for brevity). The same being F.A.No.109 of 2006 was dismissed on 18.08.2010. The petitioner was unsuccessful before the Supreme Court in obtaining leave to Appeal as S.L.P., was dismissed on 04.03.2011. The first respondent then filed E.A.No.34 of 2010 under Section 27 of the Consumer Protection Act, 1986 (the Act, for brevity) to punish the petitioner for non-compliance with the orders of the State Commission. While the same is pending, the petitioner filed E.A.I.A.No.1311 of 2011 under Order XX Rule 19 of the Code of Civil Procedure, 1908 (CPC), praying for an order granting adjustment of the amount paid by the petitioner in a sum of Rs.2,85,000/- and also amount to be paid by the members of the first respondent i.e., Rs.1,00,000/- out of the amounts payable by
the petitioner as ordered by the State Commission i.e., 5,21,000/-. By impugned order, dated 29.07.2011, the State Commission dismissed the same.
Counsel for the petitioner made two submissions. He would contend that the State Commission failed to exercise powers of executing Court in giving a set off to the amounts already paid by the petitioner to the first respondent. Secondly, he would submit that under Section 25 of the Act, even interim order of the forum can be enforced. According to him, the State Commission passed orders on 19.04.2005 directing eleven flat owners to deposit the balance amount or file ‘No Due Certificates’ and four persons did not pay the cumulative amount of Rs.69,000/-.
The counsel for the first respondent opposed the writ petition raising the following contentions. The application under Order XX Rule 19 of CPC is barred under Section 13(4) of the Act. If the plea of the petitioner is accepted, it amounts to review as the petitioner’s contention that the amount payable by the flat owners should be set off is considered by the State Commission while passing original order in C.D.No.102 of 2001.
There are very serious disputed questions of fact with regard to the payments made by the petitioner to the first respondent, whether during the pendency of the consumer dispute case, during pendency of the appeal before the National Commission or during the pendency of E.A.No.34 of 2010. Therefore, we are not inclined to go into this question. Further as pointed out by the counsel for the first respondent, the petitioner has an effective alternative remedy to approach the National Commission under Section 21(b) of the Act. Therefore, we are not inclined to express any opinion on the plea raised by the petitioner on various contentions. If so advised, the petitioner may approach
the National Commission and avail effective alternative remedy. The writ petition with the above observations is dismissed without costs. The W.P.M.P., shall stand dismissed.
_______________ (V.V.S.RAO, J)
________________________________ (G.KRISHNA MOHAN REDDY, J)
28.03.2012 pln
2 issues framed by the court
Whether the State Commission erred in dismissing an application for set-off of amounts paid by the petitioner to other flat owners.
Whether an application under Order XX Rule 19 CPC is barred against the State Commission when an effective alternative remedy exists.
2 provisions across 2 enactments
M/s.Lalwani Agricultural and Dairy Farm
Akash Enclave Residents Welfare Association
V.V.S.Rao
G.Krishna Mohan Reddy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
