SC: Filing of petition under Article 227 an abuse of the process of the Court
ITEM NO.29 COURT NO.11 SECTION XVII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil)No(s).17068-17069/2010
(From the judgment and order dated 02/02/2010 in FA No. 36/2010 & order dated 21.4.2010 in RP No. 104/2010 in FA No.36 of 2010 of The NATIONAL CONSUMERS DISPUTES REDRESSAL COMMISSION, NEW DELHI)
M/S ADVANCE SCIENTIFIC EQUIP.LD. & ANR Petitioner(s)
WEST BENGAL PHARMA& PHOTOCHEMICAL DEV&AN Respondent(s)
(With prayer for interim relief)
Date: 09/07/2010 These Petitions were called on for hearing today.
HON'BLE MR. JUSTICE G.S. SINGHVI
HON'BLE MR. JUSTICE ASOK KUMAR GANGULY
For Petitioner(s) Mr. R.V. Sinha,Adv.
Mr. R.N. Singh,Adv.
Mr. Balraj Dewan,Adv.
UPON hearing counsel the Court made the following O R D E R
The petitioner had supplied certain equipments to respondent No.1, West Bengal Pharmaceuticals and Photochemical Development Corporation Limited. Since the equipments did not work properly, respondent No.1 called upon the petitioners to rectify the defects. After sometime, respondent No.1 filed complaint under Section 17 of the Consumer Protection Act, 1986 (for short, 'the Act') and prayed for issue of a direction to the petitioners to replace the equipments or refund the amount. A reply on behalf of petitioner No.1 was filed but, thereafter, no one appeared on its behalf. By an ex-parte order dated 29.6.2007, the State Consumer Disputes Redressal Commission, West Bengal (for short' 'the State Commission') allowed the complaint in the following terms:
"It is accordingly ordered that the complaint be allowed on contest with cost of Rs.3,000/- to be paid by the OPs to the Complainant. We further direct that the OPs shall take back the instrument in question to their custody for its proper rectification and subsequent installation of the same in the laboratory of the Complainant in Kolkata. Entire responsibility will lie on OP No.2, M/s. Advance Scientific Equipment (P) Ltd. of Kolkata who is the Indian Gent of OP No.1, M/s. GBC Scientific Equipment (P) Ltd. of Australia and looks after sales negotiation and after sales service matters. This OP shall also take the responsibility of ensuring that if the instrument in question is not set right properly then the same is to be replaced with a new one before taking the said instrument in their custody. The OPs shall provide 100% bank guarantee of the total cost of the said instrument. We also allow compensation of Rs.1 lakh to be paid by the OPs to the Complainant for its financial loss in view of non functioning of the machine in question. The OPs shall make payment of the aforesaid sums to the Complainant within a period of 60 days from the date of communication of this order failing which interest @ 10% p.a. shall accrue on the decreetal amount."
The petitioners did not challenge the aforementioned order but when respondent No.1 filed execution petition, they raised an objection to the very maintainability of the complaint by contending that respondent No.1 does not fall within the definition of the consumer under Section 2(1)(d) of the Act. The State Commission overruled the objection and held that the complaint filed by respondent No.1 was very much maintainable. The petitioners challenged the order of the State Commission by filing a petition under Article 227 of the Constitution of India. In the first instance, the High Court passed an interim order in favour of the petitioners but ultimately dismissed the petition with an observation that the petitioners' contention on the issue of maintainability of the complaint was untenable and in any case, the only remedy available to it was to file an appeal under Section 23 of the Act. Thereafter, the petitioners filed an appeal before the National Consumer Disputes Redressal Commission (for short. 'the National Commission') along with an application for condonation of 901 days' delay in filing of the appeal.
By the impugned order, the National Commission declined to entertain the petitioners' prayer for condonation of delay and dismissed the appeal as barred by time. The review petition filed by the petitioners was also dismissed by the National Commission by observing that there was no error apparent in the order rejecting their prayer for condonation of delay.
We have heard learned counsel for the petitioners at considerable length and are convinced that the National Commission did not commit any error by refusing to entertain the petitioners' prayer for condonation of delay because the explanation given by the petitioners for not filing with appeal within the pscribed period of limitation was wholly unsatisfactory.
We are further of the view that the petitioners' venture of filing petition under Article 227 of the Constitution was clearly an abuse of the process of the Court and the High Court ought not to have entertained the petition even for a single day because an effective alternative remedy was available to the petitioner under Section 23 of the Act and the orders passed by the State Commission did not suffer from lack of jurisdiction.
With the above observations, the special leave petitions are dismissed.
(Satish K.Yadav) (Phoolan Wati Arora)
Court Master Court Master