B.V. Nagarathna JUDGMENT
M.R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned interim order passed by the High Court of Delhi at New Delhi dated 22.12.2021 passed in CM(M) No. 1196/2021, by which the learned Single Judge of the High Court has stayed order dated 9.12.2021 passed by the National Consumer Disputes Redressal Commission, New Delhi (for short, National Commission'), while hearing a writ petition filed Under Article 227 of the Constitution of India, in which the Respondent herein challenged the judgment and order passed by the National Commission in First Appeal No. 250/2021, the original Respondent before the High Court has preferred the present appeal.
2. Pursuant to the earlier order passed by this Court dated 21.03.2022 in the special leave petition, by a detailed order dated 31.03.2022, the learned Single Judge of the High Court has answered the question of jurisdiction and has held that against the order passed by the National Commission dated 9.12.2021 in First appeal No. 250/2021, a writ petition would be maintainable Under Article 227 of the Constitution of India. By way of Interlocutory Application No. 58657/2022, the Appellant herein has sought permission to amend the special leave petition, which is allowed.
3. Feeling aggrieved and dissatisfied with the order passed by the High Court holding that against the order passed by the National Commission passed in an appeal Under Section 58(1)(a)(iii) of the Consumer Protection Act, 2019 (hereinafter referred to as the '2019 Act'), a writ petition Under Article 227 of the Constitution of India would be maintainable, the original Respondent before the High Court has preferred the present appeal before this Court.
4. The jurisdiction of the High Court Under Article 227 of the Constitution of India, against the order passed by the National Commission, in an appeal Under Section 58(1)(a)(iii) of the 2019 Act, is the moot question for consideration before this Court.
5. The facts leading to the present appeal in a nutshell are as under:
The Appellant herein booked a flat in the project floated by the Respondent herein. According to the Appellant herein, despite the payment of sale consideration, the possession of the flat was not handed over and therefore the Appellant filed a consumer complaint before the Delhi State Consumer Redressal Forum (for short, 'State Commission') on 10.08.2013 on the grounds of deficiency of service and unfair trade practice. By order dated 16.10.2020, the State Commission allowed the said complaint directing the Respondent herein to handover possession of the flat booked by the Appellant subject to their meeting the requirements. The State Commission also directed the Respondent herein to pay to the complainant - Appellant herein compensation for the delayed period in the form of simple interest at the rate of 9% for the period from the date of possession of the flat was due to be delivered till the delivery of the possession.
5.1. The Appellant herein - original complainant filed an execution and contempt petition before the State Commission. Vide order dated 12.03.2021, the State Commission directed the decree holder - Appellant herein to place on record the details of the bank accounts or the properties of the Respondent herein which are to be attached for not implementing the judgment and order dated 16.10.2020 passed by the State Commission. Thereafter, the Respondent-builder preferred an appeal before the National Commission. Vide order dated 30.03.2021, the National Commission granted stay of the State Commission's order, subject to deposit of the entire cost of the flat along with 9% interest on the amount paid till date in the Registry of the State Commission or face the execution action by the State Commission.
Feeling aggrieved and dissatisfied with the order dated 30.03.2021 passed by the National Commission, the Respondent herein preferred writ petition before the High Court by way of Writ CM(M) No. 374/2021 Under Article 227 of the Constitution of India contending, inter alia, that the National Commission ought not to have directed the builder to deposit the entire cost of the apartment along with the compensation awarded by the State Commission. The High Court, vide order dated 25.05.2021, stayed the operation of the order of National Commission dated 30.03.2021, subject to the builder depositing with the State Commission 50% of the amount directed to be deposited by way of interest towards compensation within four weeks. A further order came to be passed by the High Court on 17.08.2021 in Writ CM(M) No. 374/2021. Thereafter, the National Commission passed a final order in First Appeal No. 250/2021 vide order dated 09.12.2021 and confirmed the order passed by the State Commission dated 16.10.2020.
5.2. Feeling aggrieved and dissatisfied with the final order dated 09.12.2021 passed by the National Commission, confirming the order dated 16.10.2020 passed by the State Commission, the Respondent-builder again approached the High Court by way of present writ petition being CM(M) No. 1196/2021. By the impugned interim order dated 22.12.2021, till the next date of hearing, the High Court has stayed the operation of final order dated 09.12.2021 passed by the National Commission in First Appeal No. 250/2021.
5.3. Feeling aggrieved and dissatisfied with the impugned interim order passed by the High Court in Writ CM(M) No. 1196/2021, Under Article 227 of the Constitution of India, the original complainant has preferred the present appeal.
6. At the time of admission hearing via Video Conferencing on 21.03.2022, this Court passed the following order:
The jurisdiction of the High Court, Under Article 227 of the Constitution of India, against the order passed by the National Consumer Disputes Redressal Commission (NCDRC) is the moot question for consideration. As the matter is pending before the High Court and the next date of hearing is reported to be 29.03.2022, we request the High Court to decide the issue with respect to the jurisdiction of the High Court, Under Article 227 of the Constitution of India, against the order passed by the National Consumer Disputes Redressal Commission (NCDRC) first which may be decided on or before 18.04.2022. The decision of the High Court on the jurisdiction shall be placed before this Court on or before the next date of hearing.
Put up on 21.04.2022.
It is agreed by learned Counsel appearing for the respective parties that they shall not ask for any adjournment on any ground whatsoever before the High Court.
7. That accordingly, by the impugned further order dated 31.03.2022, the learned Single Judge of the High Court has decided on the question of jurisdiction and it has held that against the order passed by the National Commission dated 09.12.2021 passed in First appeal No. 250/2021, impugned before it, a writ petition Under Article 227 of the Constitution of India would be maintainable. By way of amendment, which was allowed, the subsequent order dated 31.03.2022 is also challenged and is now the subject matter before this Court in the present appeal.
8. Shri Sudeepta Kumar Pal, learned Counsel appearing on behalf of the Appellant has vehemently submitted that against the order passed by the National Commission in First Appeal No. 250/2021, a writ petition before the High Court Under Article 227 of the Constitution of India would not be maintainable.
8.1. It is submitted that as such against the order passed by the National Commission, an appeal provided Under Section 27A(1)(c) of the Consumer Protection Act, 1986 would be maintainable. It is contended that without exhausting the said remedy, the High Court ought not to have entertained the writ petition Under Article 227 of the Constitution of India, which was against the order passed by the National Commission in First Appeal No. 250/2021.
8.2. In the alternative, it is submitted that assuming that the writ petition Under Article 227 of the Constitution of India against the order passed by the National Commission, impugned before the High Court, was maintainable, in that case also, in the limited jurisdiction available Under Article 227 of the Constitution of India, the High Court ought not to have stayed the order passed by the National Commission dated 09.12.2021 passed in first appeal No. 250/2021.
9. Shri Karanjot Singh Mainee, learned Counsel appearing on behalf of the Respondent has vehemently submitted that as the appeal before the National Commission was Under Section 58(1)(a)(iii) of the 2019 Act, there is no further appeal provided against the order of the National Commission, as provided to the Supreme Court Under Section 67 of the 2019 Act, against the order passed by the National Commission Under Section 58(1)(a)(iii) of the 2019 Act. Hence, a writ petition Under Article 227 of the Constitution of India would be maintainable. In support of his submission, learned Counsel appearing on behalf of the Respondent- original writ Petitioner before the High Court has heavily relied upon the decision of this Court in the case of Associated Cement Companies Limited v. P.N. Sharma MANU/SC/0215/1964 : AIR 1965 SC 1595 (paras 44 & 45), and the subsequent decision of this Court in the case of L. Chandra Kumar v. Union of India, MANU/SC/0261/1997 : (1997) 3 SCC 261.
9.1. Making the above submissions and relying upon the aforesaid decisions, it is submitted that the High Court has rightly observed and held that against the judgment and order passed by the National Commission, impugned before the High Court, a writ petition Under Article 227 of the Constitution of India would be maintainable.
10. We have heard learned Counsel for the respective parties at length.
As observed hereinabove, the short question which is posed for the consideration of this Court is, "whether, against the order passed by the National Commission in an appeal Under Section 58(1)(a)(iii) of the 2019 Act, a writ petition before the concerned High Court Under Article 227 of the Constitution of India would be maintainable?"
11. While answering the aforesaid issue/question, the relevant provisions of the 2019 Act, which are relevant for our purpose, i.e., Sections 58 and 67 are required to be referred to. Sections 58 & 67 of the 2019 Act read as under:
58. Jurisdiction of National Commission.--(1) Subject to the other provisions of this Act, the National Commission shall have jurisdiction--
(a) to entertain--
(i) complaints where the value of the goods or services paid as consideration exceeds rupees ten crore:
Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit;
(ii) complaints against unfair contracts, where the value of goods or services paid as consideration exceeds ten crore rupees;
(iii) appeals against the orders of any State Commission;
(iv) appeals against the orders of the Central Authority; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission 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.
(2) The jurisdiction, powers and authority of the National Commission may be exercised by Benches thereof and a Bench may be constituted by the President with one or more members as he may deem fit:
Provided that the senior-most member of the Bench shall preside over the Bench.
(3) Where the members of a Bench differ in opinion on any point, the points shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other members and such point or points shall be decided according to the opinion of the majority of the members who have heard the case, including those who first heard it:
Provided that the President or the other member, as the case may be, shall give opinion on the point or points so referred within a period of two months from the date of such reference.
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67. Appeal against order of National Commission.--Any person, aggrieved by an order made by the National Commission in exercise of its powers conferred by Sub-clause (i) or (ii) of Clause (a) of Sub-section (1) of Section 58, may prefer an appeal against such order to the Supreme Court within a period of thirty days from the date of the order:
Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period:
Provided further that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person has deposited fifty per cent of that amount in the manner as may be prescribed.
It is not in dispute that in the present case, the appeal before the National Commission was against the order passed by the State Commission Under Section 47(1)(a) of the 2019 Act. Therefore, against the order passed by the State Commission passed in a complaint in exercise of its powers conferred Under Section 47(1)(a) of the 2019 Act, an appeal to the National Commission was maintainable, as provided Under Section 58(1)(a)(iii) of the 2019 Act. As per Section 67 of the 2019 Act, any person, aggrieved by an order made by the National Commission of its powers conferred by Sub-clause (i) or (ii) of Clause (a) of Sub-section (1) of Section 58, may prefer an appeal against such order to the Supreme Court.
Therefore, an appeal against the order passed by the National Commission to this Court would be maintainable only in case the order is passed by the National Commission in exercise of its
powers conferred Under Section 58(1)(a)(i) or Under Section 58(1)(a)(ii) of the 2019 Act. No further appeal to this Court is provided against the order passed by the National Commission in exercise of its powers conferred Under Section 58(1)(a)(iii) or Under Section 58(1)(a)(iv) of the 2019 Act. In that view of the matter, the remedy which may be available to the aggrieved party against the order passed by the National Commission in an appeal Under Section 58(1)(a)(iii) or Section 58(1)(a) (iv) would be to approach the concerned High Court having jurisdiction Under Article 227 of the Constitution of India.