Dismissed

The State Bank of India., rep.by its Branch Manager v. Ap State consumer Disputes Redressal Commission

Telangana HC13 Mar 2012WP/6623/2012

Case brief

AI extract

What is this about?

Bank filed writ to quash order dismissing its consumer appeal for default and challenge Rule 8(6) validity. Court held alternative remedy under Section 19 existed and dismissed writ at admission stage without entertaining merits challenge.

What did the court decide?

Writ petition dismissed at the stage of admission; liberty granted to petitioner to approach National Commission for redressal.

The State Bank of India., rep.by its Branch Manager Vs… — Consumer Protection | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY

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WRIT PETITION No.6623 of 2011

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ORDER: (per Hon’ble Sri Justice G.Krishna Mohan Reddy)

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This writ petition is taken up for disposal at the stage of admission.

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The present writ petition is filed seeking Writ of Certiorari to quash order dated 19.12.2011 in F.A.No.483 of 2010 and subsequent order dated 18.1.2012 in F.A.I.A.No.2822 of 2011 in F.A.No.483 of 2010 passed by the 1^st respondent as arbitrary, illegal and to declare Rule 8(6) of the A.P. State Consumer Protection Rules, 1987 (for short ‘the Rules’) to the extent of conferring power on the 1^st respondent to dismiss the appeals for default as unconstitutional and consequently direct the 1^st respondent to dispose of F.A.No.483 of 2010 on merits.

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The 3^rd respondent deposited a sum of Rs.12,600/- on 10.7.1992 with the petitioner Bank (for short ‘the petitioner’) for which the petitioner issued a passbook in her name vide Recurring Deposit Account No.7. By 10.7.2009 the 3^rd respondent became entitled to maturity amount of Rs.1,04,506/-. Then she approached the Branch Manager of the petitioner to pay the matured amount, but there was no response. Thereafter, she got issued a legal notice on 15.7.2009 demanding the petitioner to pay the amount, but it was in vain. Hence, she filed complaint against the petitioner before the District Consumer Disputes Redressal Forum, Tirupati (for short ‘District Forum’) numbered there as C.C.No.72 of 2009. After conducting necessary enquiry, the District Forum partly

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allowed the complaint directing the petitioner to pay a sum of Rs.1,04,506/- with interest @ 9% per annum from 1.9.2009 till the date of realization of the amount and costs of Rs.1,500/-, aggrieved by which, the petitioner preferred F.A.No.483 of 2010 before the 1^st respondent i.e. A.P. State Consumer Disputes Redressal Commission, Hyderabad (for short ‘the 1^st respondent or the State Commission’) but it was dismissed for default on 19.12.2011. Thereafter the petitioner filed F.A.I.A.No.2822 of 2011 to set aside the order of dismissal which was also dismissed by the State Commission on 18.1.2012 on the ground that the State Commission got no jurisdiction to entertain the matter.

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The petitioner would contend that by virtue of Section 19A of the Consumer Protection Act, 1986 (for short ‘the Act’), the 1^st respondent has to dispose of the appeal on merits and he got no power to dismiss the appeal for default and the impugned order was passed under Rule 8(6) of A.P. State Consumer Protection Rules, 1987 (for short ‘the Rules’) which is incidental or subsidiary to Section 19A of the Act only, but in Section 30 of the Act, which empowers the Central Government or State Government to make necessary rules for carrying out various provisions of the Act enumerated therein, Section 19 or 19A of the Act is not included which makes it clear that the said rule was enacted without any authority and thus the order passed by virtue of that rule is not tenable.

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Therefore, the points to be considered here are whether the impugned order is not tenable in the light of the contentions raised by the learned counsel for the petitioner and whether the writ petition is maintainable in view of the availability of alternative and efficacious remedy under Section 19 of the Act.

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Section 30 of the Act, which contains (2) clauses, empowers the Central Government and State Government to make rules by notification for carrying out various provisions enumerated therein. This provision does not include Section 19 or Section 19A of the Act.

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Section 19 of the Act enables any person aggrieved by an order made by the State Commission in exercise of its powers conferred by sub-clause (1) of clause (a) of Section 17 of the Act to prefer an appeal against such order to the National Consumer Disputes Redressal Commission, New Delhi (for short ‘National Commission’) within a period of 30 days from the date of the order. Section 19A deals with the question of hearing appeals. This section in fact envisages that an appeal filed before the State Commission or the National Commission shall be heard as expeditiously as possible and an endeavour shall be made to finally dispose of the appeal within a period of ninety days from the date of its admission. The first proviso thereunder contemplates that no adjournment shall be ordinarily granted by the State Commission or the National Commission, as the case may be, unless sufficient clause is shown and the reasons for grant of adjournment have been recorded in writing by such Commission. This empowers the State Commission or the National Commission even to dismiss the appeal for default when the appellant is absent or sufficient cause was not shown for adjournment. Rule 8(6) of the Rules envisages “on the date of hearing or any other day to which hearing may be adjourned, it shall be obligatory for the parties or their authorized agents to appear before the State Commission. If appellant or his authorized agent fails to appear on such date, the State Commission may, in its discretion, either dismiss the appeal or

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decide it on the merits of the case. If respondent or his authorized agents fail to appear on such date, the State Commission shall proceed ex parte and shall decide the appeal ex parte on merits of the case”. Thus, this rule also gives discretion to the State Commission either to dismiss the appeal or decide the appeal on merits if the appellant or his authorized agent fails to appear before the State Commission on a particular date to which the hearing of the case is posted. This rule is subsidiary to Section 19A of the Act.

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Rule 8(6) is in fact in conformity with the provisions incorporated in Section 19A. In other words, this Rule is not in violation of Section 19A, by reason of which, the validity of the rule cannot be questioned. When the main provision contemplates the dismissal of appeal for default, the subsidiary rule framed within the ambit of the Section is to be upheld irrespective of whether the main provision is included under Section 30 of the Act or not.

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In any case, there is no provision in the Act which empowers the 1^st respondent to set aside the impugned order passed by the 1^st respondent itself. By virtue of the language of Section 19 of the Act, appeal lies against any order passed under the Act either ex parte or on contest to the National Commission.

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In fact, only the National Commission has been given discretion or power to set aside e x parte orders passed by the National Commission itself on an application filed by the party aggrieved by that.

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I n Rajeev Hitendra Pathak and others v. Achyut Kashinath [1] Karekar and another the Supreme Court had occasion to consider as to whether the District Consumer Forums and the State Commissions got power to set aside their own ex parte orders, or in

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other words, got power to recall or review their own orders. In that case, a complaint was filed before State Commission alleging deficiency in service and claiming compensation of Rs.15,00,000/for the respondents therein. The State Commission issued notices to the opposite parties/appellants, but however, the State Commission dismissed the complaint for want of prosecution subsequently, following which the respondents filed an application for recalling the order of dismissal, which was allowed by the State Commission. The appellants, having aggrieved, preferred revision before the National Commission, New Delhi against the order impugned on the ground that the Act does not empower the State Commission to set aside its own order. Upon considering relevant factors, the National Commission held that the State Commission got power to set aside its own order, against which, the parties aggrieved by preferred appeal before the Supreme Court. The Supreme Court examining the circumstances of the case and considering various judicial pronouncements, held;

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“On a careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the statute and derive their power from the express provisions of the statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and the power of review and the powers which have not been expressly given by the statute cannot be exercised.

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The legislature chose to give the National Commission power to review its e x parte orders. Before amendment, against dismissal of any case by the Commission, the consumer had to rush to this Court. The amendment in Section 22 and introduction of Section 22-A were done for the convenience of the consumers. We have carefully ascertained the legislative intention and interpreted the law accordingly”.

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The State Commission in this case, in fact, dismissed the petition filed to set aside the impugned order relying upon the judgment cited above. Therefore, there is no error apparent on the face of the record to entertain the writ petition.

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With regards to the question as to whether this writ petition lies when there is alternative, effective and efficacious remedy available under Section 19 of the Act in Om Prakash Saini v. DCM Limite d^[2] , the Supreme Court considered the scope of High Court writ jurisdiction with reference to a case under Consumer Protection Act itself. The appellant therein, a retired Railway employee invested certain amount in fully secured redeemable nonconvertible debentures in DCM and a revised payment scheme was informed and when the amount became matured, he approached the DCM for the matured amount, but the DCM did not pay it, following which he approached a State Commission, but later he withdrew the claim and then approached Delhi High Court under Article 227 of the Constitution, where a single Judge allowed it ex parte and thereafter a writ was filed before the Supreme Court questioning the invocation of Articles 227 of the Constitution and the Supreme Court allowed the appeal holding that the High Court would not entertain a petition under Article 226 and 227 of the Constitution when an alternative remedy is available to the aggrieved person.

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The questions raised by the petitioner in this writ petition are to be raised only before the National Commission in appeal, if any. Hence as there is alternative, effective and efficacious remedy by way of approaching the National Commission under Section 19 of the Act and there is no error apparent on the face of the record, this writ petition cannot be entertained and is liable to be dismissed as misconceived.

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In the result, the writ petition is dismissed accordingly at the stage of admission, granting liberty to the petitioner Bank to approach the National Commission for redressal under Section 21(b) of the Act, as per law. There shall be no order as to costs.

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______________ (V.V.S.RAO, J) ________________________________ (G.KRISHNA MOHAN REDDY, J) Date: 13.3.2012 DA

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THE HON’BLE SRI JUSTICE V.V.S.RAO AND

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THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY

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WRIT PETITION No.6623 of 2012

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13.3.2012

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IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD