Gujarat High Court
Nurjahan Ibrahim Mahmadd Lotiya vs Mayurbhai Bipinbhai Rana on 30 January, 2025
NEUTRAL CITATION
C/SCA/16852/2024 ORDER DATED: 30/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16852 of 2024
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NURJAHAN IBRAHIM MAHMADD LOTIYA
Versus
MAYURBHAI BIPINBHAI RANA
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Appearance:
MR RATHIN P RAVAL(5013) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 30/01/2025
ORAL ORDER
1. Heard the learned counsel for the petitioner.
2. The present Special Civil Application has been filed praying for the following reliefs :-
"A. Be pleased to admit and allow this petition.
B. The Hon'ble Court may be further pleased to consider that the
judgment/order of the Ld. Gujarat State Commission, Ahmedabad in AEA No. 15/2024 dated 22/10/2024 (Annexure A) is illegal, wrong and be further be pleased to quash and set aside the impugned judgment/order and/or modify the same considering the merits of the case.
C. The Hon'ble Court may be further pleased to dismiss the judgment/order in Execution Petition No.37/2024 dated 02/07/2024 of the Ld. Bharuch District Consumer Redressal Commission (Annexure B) and thereby allowing the application of the petitioner to dismiss the said execution petition.
D. As an ad-interim ex part relief, the Hon'ble Court may stay the judgment/order of the Ld. Gujarat State Commission, Ahmedabad in AEA No. 15/2024 dated 22/10/2024 (Annexure A) and the judgment/order in Execution Petition No. 35/2024 dated 02/07/2024 of the Ld. Bharuch District Consumer Redressal Commission (Annexure B) until final adjudication of the present petition.
E. Be pleased to pass such other and further awards may be deemed just and proper looking to the facts and circumstances of the case and in the interest of the justice."
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3. The brief facts in the present case are that the respondent complainant had filed the consumer complaint No.24/2015 under the Consumer Protection Act, 1986, which came to be decided in favour of the complainant by the order dated 27.10.2016 and the petitioner was directed to pay Rs.10,00,000/- with interest/cost. Aggrieved, the petitioner herein filed an Appeal before the Consumer Disputes Redressal Commission, Gujarat State, Ahmedabad. The said Appeal came to be filed after a long delay along with the Delay Condonation Application. The State Consumer Commission dismissed the said Delay Condonation Application being MA No.47/2022 as no sufficient cause was made out. That thereafter, the petitioner preferred the Revision Application before the National Consumer Disputes Redressal Commission being R P No.1259/2022 and the same is pending adjudication. In the meantime, the complainant filed an Execution Petition before the District Consumer Redressal Commission being EA No.35/2024 and the same came to be allowed by the District Consumer Redressal Commission. That thereafter, the petitioner preferred an Appeal before the Consumer Disputes Redressal Commission, Gujarat State, Ahmedabad being AEA No.15/2024. The State Consumer Commission, after hearing both the parties, dismissed the AEA No.15/2024 by the impugned order dated 22.10.2024.
4. The learned counsel for the petitioner submits that the orders passed by the State Consumer Commission as well as District Consumer Commission are erroneous and contrary to law. He submits that the complainant filed the Execution Petition simultaneously under Section 25 and Section 27 of the Consumer Protection Act. He submits that the complainant cannot ride two horses and seeks both the reliefs at the same time. The learned counsel for the petitioner submits that the petitioner had taken a preliminary objection with respect to simultaneous reliefs sought under Section 25 and Section 27 of the Consumer Protection Act. He submits that by the pursis, the Advocate for the complainant did not press Page 2 of 5 Uploaded by OMKAR C. MAHAWAR(HC00201) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 22:56:54 IST 2025 NEUTRAL CITATION C/SCA/16852/2024 ORDER DATED: 30/01/2025 undefined the prayer under Section 25 of the Act and pressed for the prayer under Section 27 of the Act. The learned counsel submits that the Execution Petition was filed on an affidavit, whereas the prayer was not pressed by the Advocate for the complainant by filing a pursis, which is not in accordance with law. He submits that the pleadings cannot be amended by pursis filed by the Advocate for the complainant. He submits that the said submission has not been considered properly by the State Consumer Commission in the impugned order. He further submits that the State Consumer Commission, in a similar case, has passed the judgment dated 30.08.2022 in AEA/04/2022 and in the present case, the State Consumer Commission has taken a contrary view. He submits that the State Consumer Commission has not followed its own judgment. The learned counsel further submits that the Revision Application of the petitioner is pending before the National Consumer Commission. He, therefore, submits that the order in the consumer complaint has not attained finality and no order can be passed against the petitioner in the execution proceedings. The learned counsel for the petitioner has relied upon the judgment of the Telangana High Court on this proposition, wherein it has been held that once the order is not final, there is no point of executing an award. The learned counsel submits that the Firm is operated by the husband of the petitioner and the basic grievance of the complainant is against the petitioner's husband and the petitioner is not a partner in the said Firm. The learned counsel, therefore, submits that the impugned order of the State Consumer Commission be interfered with and the execution proceedings be stayed.
5. Heard the learned counsel for the petitioner and perused the documents on record.
6. At the outset, it is required to be noted that the order passed in the Execution Petition filed against the husband of the petitioner has not been challenged before any appropriate forum till date. The Execution Petition Page 3 of 5 Uploaded by OMKAR C. MAHAWAR(HC00201) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 22:56:54 IST 2025 NEUTRAL CITATION C/SCA/16852/2024 ORDER DATED: 30/01/2025 undefined against the petitioner has been disposed of on the basis of the order passed in the case of the husband of the petitioner. In the present case, the consumer complaints have been filed against the petitioner and her husband and they have been allowed by the District Consumer Commission by ordering to refund the amount paid to them along with interest and cost. The said orders of the District Consumer Commission have been challenged before the State Consumer Commission, which have been confirmed and the Revision Petitions are pending before the National Consumer Commission. The complaints against the petitioner and her husband are identical in nature and also identically worded and the grounds raised are also same. Even the petitioner and her husband have filed similar appeals before the State Consumer Commission, in which, the learned counsel for the appellant specifically conveyed to the Commission that no separate arguments are to be made since identically, in a similar situation, the husband has challenged the similar order in group of appeals, which were exhaustively argued. The State Consumer Commission has disposed of the group of appeals filed by the petitioner in the same terms and conditions and with the same reasons of orders which are passed in AEA No.17/2023, 18/2023, 19/2023, 20/2023, 21/2023 and 22/2023 filed by the husband of the present petitioner. The State Consumer Commission has given a finding in the order dated 22.10.2024 in AEA NO.17 of 2023 filed by the husband of the petitioner that the original complaint came to be decided long back and then to thwart the process of implementation, the present appellant made a systematic attempt which would clarify the intent of the present appellant to evade the liability by any means to pay the amount to the complainant. The State Consumer Commission has come to the conclusion that there is no illegality committed by the District Consumer Commission in proceeding with the Execution Petition. It was also observed that more than adequate opportunities have been given to the appellant, by which, either appellant ought to have obtained interim stay or ought to have implemented the Page 4 of 5 Uploaded by OMKAR C. MAHAWAR(HC00201) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 22:56:54 IST 2025 NEUTRAL CITATION C/SCA/16852/2024 ORDER DATED: 30/01/2025 undefined order which has already been passed in accordance with law. It was observed that an attempt is made to just buy time under one pretext or the other and the petitioner is now taking shelter of pending proceeding before the National Consumer Commission, in which, no stay has been granted. In respect of the judgment relied upon by the learned counsel for the appellant in Writ Petition No.30234/2017 dated 08.06.2018, the State Consumer Commission has rejected the same as not applicable in the peculiar facts and circumstances of the case. Further, the State Consumer Commission has relied upon the judgment of the Hon'ble Apex Court in Special Leave to Appeal (C) No.19038 of 2022 dated 24.01.2023, wherein it has been held that unless appeal is listed and there is an interim relief, mere filing of the appeal would not operate as stay of the impugned order. The State Consumer Commission has rendered a finding that that the order passed in the Execution Petition is with proper application of mind and after considering every circumstance and therefore, on conjoint effect of overall circumstances, the appeal filed by the petitioner has been dismissed. In the present case, the State Consumer Commission has duly considered all the circumstance and the relevant record and held that this is not a solitary circumstance or case against the appellant, but several persons have been duped like the present complainant.
7. As such, the order passed reflects no perversity or illegality. No infirmity can be attached to the aforesaid findings. The Special Civil Application is devoid of merits and is accordingly DISMISSED.
No order as to costs.
Sd/-
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