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The Manager, Burdwan... v. Anath Bandhu Dhara O...
Structured Summary of the Opinion (C.O No. 3191 of 2008)
Factual and Procedural Background
The revision (C.O No. 3191 of 2008) arises from an order passed by the West Bengal State Consumer Disputes Redressal Commission in S.C. Case No. FA 41 of 2008. The opposite party (complainant) originally filed a complaint under Section 12 of the Consumer Protection Act before the District Consumer Disputes Redressal Forum, Muchipara, Burdwan, registered as DF Case No. 20 of 2004.
The complainant alleged that he purchased a tractor with trailer from Farmer's Friend and Engineers Private Limited on installment through Burdwan Co-operative Agricultural and Rural Development Bank Limited, paid Rs. 70,000/-, took delivery and executed an agreement, and mortgaged 10 bighas of his land together with 5 bighas 12 kathas of family land to the bank. The bank refused to furnish a copy of the agreement but informed him repayment was to be made over nine consecutive years. He paid the first installment in 2001 but failed to pay the third installment in 2003 due to low production/business, and alleged that bank officials took away the tractor and trailer in Chaitra in 1410 B.S., depriving him of the vehicle needed to cultivate his land. The District Forum disposed of the DF Case directing the bank to return the tractor and trailer within one month and allowed time to the complainant to repay the loan.
The bank appealed to the State Consumer Disputes Redressal Commission (S.C. Case No. FA/2008/41), which dismissed the appeal. Aggrieved, the bank preferred the present revision application before this Court.
Legal Issues Presented
- Whether the High Court should entertain a revisional application under Article 227 of the Constitution of India when an alternative statutory remedy of revision to the National Consumer Disputes Redressal Commission is available under Section 21(b) of the Consumer Protection Act.
- Whether the District Forum and the State Commission were justified in relying on an alleged High Court decision (referred to as "Kabita Basuli's case") that was not produced in reported form and, according to the petitioner, supported only by newspaper clippings.
Arguments of the Parties
Petitioner (Bank) — Arguments
- The District Forum and the State Commission disposed of the complaint relying on an alleged decision of this High Court in "Kabita Basuli's case", which the petitioner says is not a reported decision and its existence is uncertain.
- The complainant did not produce the judgment; reliance was placed on a newspaper cutting whose authenticity is challengeable; the Forum was wrong to decide the case based on such a paper cutting.
- The State Commission erred by dismissing the bank's appeal based on newspaper reports of "Kabita Basuli's case".
- The High Court's constitutional power under Article 227 should be exercised when there is manifest illegality; reliance on an alleged newspaper-reported judgment without production of the actual judgment is unlawful and the impugned orders should be quashed.
- The opposite party failed to clear the bank's dues; there was no forcible seizure of the tractor and trailer and the Forum did not discuss these contentions.
- Reliance was placed on authorities: 2003 (2) SCC p.412, 1997 (3) SCC p.261, and AIR 1997 Madras p.204 (as cited by the petitioner's counsel).
Respondent (Complainant / Opposite Party) — Arguments
- The revision petition is not maintainable because the bank did not first move the National Commission for revision under Section 21(b) of the Consumer Protection Act; statutory revisional remedies were not exhausted.
- Since the petitioner did not invoke the statutory revisional forum, the High Court cannot entertain the petition under Article 227 of the Constitution and the petition should be dismissed on that ground.
- Reliance was placed upon authorities including: 2008 (1) CLJ (Cal) p.892, 1995 (2) CLJ p.218, 1995 (1) CHN p.501, 2009 (1) CLJ (Cal) p.929, and 2008 (2) CLJ (Cal) p.137.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 2003 (2) SCC p.412 | Explains that the provisions relating to appeals and the power of High Court/Supreme Court under Articles 226/227 and Article 32, together with Section 23 of the Act, provide adequate safeguards; notes primary jurisdiction of Forums/Commissions is to grant damages and a complainant may choose a civil court for injunctions or other remedies. | The Court cited this to show that statutory mechanisms and constitutional powers provide safeguards and that alternative remedies exist outside Article 227. |
| 1997 (3) SCC p.261 | Holds that the power vested in High Courts to exercise judicial superintendence over decisions of courts and tribunals within their jurisdiction is part of the basic structure of the Constitution. | The Court cited this to acknowledge the High Court's supervisory jurisdiction under Article 227 while balancing it against the requirement to exhaust statutory remedies. |
| AIR 1997 Madras p.204 | Interprets Section 19 to show that an appeal to the National Commission is provided only against orders made by the State Commission under sub-clause (i)(a) of Section 17; since Section 19 does not mention Section 17(a)(ii), no appeal/revision lies to National Commission against such orders. | The Court cited this for the proposition on the scope of appellate remedies to the National Commission under Section 19 and Section 17. |
| AIR 2004 Madras p.494 | Holds that parties aggrieved by the order of the State Commission have the remedy to approach the National Commission and should not invoke jurisdiction under Article 227. | The Court used this to reinforce that statutory revision to the National Commission is the appropriate remedy rather than recourse to Article 227. |
| 2009 (1) CLJ (Cal) p.929 | Holds that where an alternative forum of appeal is available under the Act and the remedy by way of appeal is exhaustive, efficacious and speedy, the petitioner cannot invoke Article 227 of the Constitution. | The Court relied on this to support the conclusion that Article 227 should not be invoked when a statutory revisional remedy is available. |
| 2008 (1) CLJ (Cal) p.892 | States the settled position that when an alternative remedy is available under the Act, an aggrieved party should not approach the High Court under Article 227. | The Court cited this authority to confirm the principle that statutory remedies must be exhausted before invoking Article 227. |
| 1995 (2) CLJ p.218 | Holds that when an efficacious remedy under the Act exists, a litigant should not resort to extraordinary constitutional remedies under Article 226 without exhausting statutory remedies. | The Court invoked this precedent to emphasize the obligation to exhaust statutory remedies before resorting to constitutional reliefs. |
| 2008 (2) CLJ (Cal) p.137 | Holds that a writ petition under Article 226 is maintainable against orders of a Consumer Forum only in very exceptional cases, where a person is deprived of remedies of appeal and revision provided by Sections 15 and 17 of the Act. | The Court cited this to stress that writ remedies are exceptional and not a substitute for statutory appeals/revisions. |
| 1995 (1) CHN p.501 | Holds that Section 19 of the Consumers Protection Act, 1956 provides an equally efficacious or wider alternative remedy, and unless grievances fall within the ambit of Article 227, the High Court should relegate the petitioner to the statutory appellate forum. | The Court relied on this to support the general principle that when statutory remedies are adequate, Article 227 should not be invoked. |
Court's Reasoning and Analysis
The Court analysed the maintainability of the revision under Article 227 in the light of the Consumer Protection Act and the cited authorities. Key points from the Court's reasoning, as stated in the opinion, are:
- The jurisprudence establishes that where statutory remedies/appeals or revisions are available under the Consumer Protection Act, those remedies should normally be exhausted before invoking constitutional supervisory jurisdiction under Article 227.
- Several authorities were cited to show the settled position that alternative remedies provided by the Act (including appeal/revision to the National Commission under the relevant provisions) are adequate and that the High Court should not routinely entertain Article 227 petitions when such statutory remedies exist.
- The Court specifically noted that in the present case the National Commission can entertain a revision in view of the provision of Section 21(b) of the Consumer Protection Act; therefore the statutory remedy of revision to the National Commission is available to the petitioner.
- Given the availability of the statutory remedy, the Court held that the application under Article 227 cannot be entertained in the present proceeding and no relief can be granted to the petitioner in this Court.
- The Court, however, granted the petitioner liberty to prefer a revision to the National Commission and directed that the National Commission may consider any request for condonation of delay under Section 21(b) in view of Section 5 of the Limitation Act read with Section 14 of the Consumer Protection Act.
Holding and Implications
Holding: The revisional application (C.O No. 3191 of 2008) is dismissed on the ground that the petitioner must first exhaust the statutory remedy of revision to the National Commission under Section 21(b) of the Consumer Protection Act; accordingly, the Court declined to entertain the petition under Article 227 and disposed of the revision.
Implications:
- The direct effect is that no relief is granted to the petitioner in this High Court proceeding and the revisional application is disposed of.
- The petitioner is given liberty to prefer a revision petition to the National Commission under Section 21(b) of the Consumer Protection Act, and the National Commission is requested to consider condonation of delay under Section 5 of the Limitation Act read with Section 14 of the Consumer Protection Act, if necessary.
- The opinion does not discuss any broader legal or normative implications beyond directing the petitioner to the statutory remedy; therefore, no new precedent or broader rule was set out in this opinion beyond applying the existing principle that statutory remedies must be exhausted before invoking Article 227.
Order: Urgent xerox certified copy, if applied for, to be provided to the parties. (Signed S.K.G.)
The judgment of the Court was as follows:
1. The C.O arises out of an order passed by West Bengal State Consumer Disputes Redressal Commission in S.C Case No. F.A 41 of 2008.
2. The opposite party filed complaint under Section 12 of the Consumer Protection Act before the District Consumer Disputes Redressal Forum, Muchipara, Burdwan which was registered as DF Case No. 20 of 2004.
3. The complainant alleged that he purchased a Tractor with Trailor from the Firm named Farmer's Friend and Engineers Private Limited on instalment through Burdwan Co-operative Agricultural and Rural Development Bank Limited and he paid Rs. 70,000/- to the aforesaid concern and took delivery of the Tractor and Trailor through the aforesaid bank by executing an agreement and mortgaging 10 bighas of his own land along with 5 bighas 12 kathas of land of the family members with the aforesaid bank. The bank authority refused to give him a copy of said agreement but informed him that he should clear the price money in 9 consecutive year. He paid first instalment in the year 2001 but he failed to pay the third instalment in the year 2003 due to low production and low business out turn. The bank authority did all these simply with a view to grab the whole of the land properties of the petitioner's and his family members along with his vehicle and in the month of Chaitra in 1410 B.S some bank officials went to the petitioner's place and took away the tractor and trailor along with his own materials from his possession and without help of the tractor he was unable to cultivate the land and the petitioner requested the bank authorities to release the vehicles but unfortunately the bank did not do the same and hence the complainant filed the complaint before District Forum praying for direction upon the bank to return the seized vehicle.
4. The bank contended that the dispute is triable by Registrar, Co-operative Societies under provisions of the West Bengal Co-operative Societies Act. The complainant failed to repay the loan amount and surrendered the said tractor with trailor on 29.8.03 and stated that he will not be able to pay the instalment of the loan amount. The bank has authority to realise the loan amount by selling the mortgage property.
5. During hearing of the case, learned Advocate of the complainant argued that in Kabita Basuli's case Hon'ble Justice Soumitra Sen of this Court observed that due to failure of payment of instalment the Bank cannot seize the vehicle at its own will and the Bank cannot sell that vehicle and the vehicle should be kept under the custody of police till the final hearing of the case and in view of the said judgment the bank may be directed to return the vehicle. Relying on the said judgment DF Case was disposed of directing the Bank to return the tractor with trailor to the complainant within one month and the complainant was given time to repay the loan amount.
6. Being aggrieved by the said order the Bank moved the State Consumer Disputes Redressal Commission, West Bengal in filing S.C Case No. FA/2008/41 and the appeal was dismissed.
7. Being aggrieved the Bank preferred this revision.
8. It was contended by the learned Lawyer for the petitioner that in disposing of the complaint the Consumer Forum and in disposing of the appeal the State Consumer Disputes Redressal Commission relied upon the so called decision of this High Court in Kabita Basuli's case. The said decision is not a reported decision. It is now known whether there is existence of such decision. The decision, if any was not produced by the complainant/opposite party and reliance was placed not on the judgment but on the paper cutting the authenticity of which is subject to challenge and learned Consumer Forum was wrong in disposing of the complaint on the basis of paper cutting.
9. It has further been contended by the learned Counsel for the petitioner-Bank that the State Consumer Disputes Redressal Commission erred on the face of record by dismissing the appeal relying on Kabita Basuli's case reported in two newspapers.
10. Learned Counsel has further contended that the High Court has got the superintendence power conferred on it under Article 227 of the Constitution of India and it can interfere when there is manifest illegality in the order of the Tribunal. Here, the Consumer Forum relied on a publication said to be the judgment of this Court in Kabita Basuli's case. The Forum did not insist on production of the judgment and did not enquire whether such judgment was really delivered. So, this reliance of the Forum on the alleged judgment in the case of Kabita Basuli as claimed in the newspaper and decision of the case on such reliance cannot stand in law and the impugned order of the Forum should be interfered and the same should be quashed.
11. Learned Counsel has further contended that the opposite party failed to clear the dues of the Bank and there was no forcible seizure of the tractor and traitor and the learned Forum did not discuss the same.
12. Learned Counsel for the petitioner has placed his reliance upon the ruling reported in 2003 (2) SCC at page 412, 1997 (3) SCC at page 261 and AIR 1997 Madras at page 204.
13. Learned Counsel for the respondent has contended that the instant revision application is not maintainable as the Bank did not move the revision authority before the National Commission as provided in Section 21 Clause (b) of the Consumer Protection Act, 1986. As the petitioner has not moved the statutory revisional forum and exhausted the statutory relief as available in the Act against the order of the State Commission, the petition under Article 227 of the Constitution of India cannot be entertained and on this score the case is liable to be dismissed.
14. Learned Counsel for the respondent has placed his reliance upon the decision reported in 2008 (1) CLJ (Cal) at page 892, 1995 (2) CLJ at page 218, 1995 (1) CHN at page 501, 2009 (1) CLJ (Cal) at page 929 and 2008 (2) CLJ (Cal) at page 137.
15. In the case reported in 2003 (2) SCC at page 412 it has been held that the provisions relating to power to approach Appellate Court by a party aggrieved by a decision of the forums/State Commissions as also the power of the High Court and the Supreme Court under Articles 226/227 of the Constitution of India and Article 32 of this Court apart from Section 23 of the Act provide for adequate safeguards. Furthermore, primarily the jurisdiction of the Forums/Commissions is to grant damages. In the event, a complainant feels that he will have a better and effective remedy in a Civil Court as he may have to seek for an order of injunction, he indisputably may file a suit in an appropriate Civil Court or may take recourse to some other remedies as provided for in other statutes.
16. In the case reported in 1997 (3) SCC at page 261 it has been held that the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided.
17. In the ruling reported in AIR 1997 Madras at page 204 it has been held that reading of Section 19 clearly shows that an appeal is provided to National Commission only against the order made by the State Commission in exercise of its power conferred by sub-clause (i)(a) of Section 17. Since there is no mention with regard to Section 17(a)(ii) in Section 19, no further appeal or revision lies to National Commission against the impugned orders passed by the State Commission.
18. In the ruling reported in AIR 2004 Madras at page 494 it has been held that the parties aggrieved by the order passed by the State Commission is remedy to approach the National Commission and not invoke jurisdiction under Article 227 of the Constitution.
19. In the case reported in 2009 (1) CLJ (Cal) at page 929 it has been held that since an alternative Forum of appeal is available to the petitioner under the said Act and since the remedy by way of appeal is much more exhaustive, efficacious and speedy, the petitioner cannot invoke the jurisdiction of this Court under Article 227 of the Constitution of India.
20. In the case reported in 2008 (1) CLJ (Cal) at page 892 it has been held that it is palpably clear that it is now the settled position of law that when there is an alternative remedy available in an alternative forum, as provided in the Act, then an aggrieved party should not be allowed to approach the High Court by way of filing a revisional applications under Article 227 of the Constitution of India.
21. In the case reported in 1995 (2) CLJ at page 218 it has been held that when other efficacious remedy under the Act is available to a litigant, he without exhausting such remedy should not resort to the extra ordinary remedy available under Article 226 of the Constitution of India.
22. In the case reported in 2008 (2) CLJ (Cal) at page 137 it was held that there is no reason to say that a writ petition, under Article 226 of the Constitution of India is not at all maintainable against the order of a Consumer Disputes Redressal Forum. Only in a very exceptional case writ petition against an order of a District Forum constituted under Section 9 of the Consumer Protection Act, 1986 should be entertained by the High Court. It should be entertained only when the person approaching the writ Court, for no fault of his own, is deprived of the remedies of appeal and revision provided by the provisions of Sections 15 and 17 of the Consumer Protection Act, 1986.
23. In the case reported in 1995 (1) CHN at page 501 the Division Bench of this High Court held that Section 19 of the Consumers Protection Act, 1956 provides for an equally efficacious, nay, a wider alternative remedy and unless the grievances raised in the revisional application come within the ambit of Article 227 of the Constitution of India, the High Court should not entertain the revisional application and should relegate the petitioner to the appellate forum.
24. So the ratio of decision is that when there is adequate remedy provided in the statute that remedy should be exhausted and before exhausting the remedy the alternative remedy the person aggrieved cannot be allowed to invoke the remedy constitutional remedy as available under Article 227 of the Constitution of India.
25. In this case, against the decision of the State Commission, the National Commission can entertain revision in view of the provision of Section 21(b) of the Consumer Protection Act. So, when there is remedy available to the petitioner provided in that statute that remedy should be exhausted and before exhausting that remedy of revision as available under Section 21(b) of the Consumer Protection Act the application under Article 227 of the Constitution of India cannot be entertained and no relief can be granted to the petitioner in this proceeding.
26. Under the circumstances, the petitioner is given liberty to prefer revision to the National Commission against the impugned order of the State Commission. The National Commission may consider the request of the petitioner for condonation of delay in preferring the revision under Section 21(b) of the Consumer Protection Act in view of the provision of Section 5 of the Limitation Act read with Section 14 of the said Act.
27. In the result, the revisional application being C.O No. 3191 of 2008 stands disposed of.
28. Urgent xerox certified copy, if applied for, be given to the parties.
S.K.G
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