Telangana High Court
M/S Bodasu Statues Creatives, vs Rapaka Rajamallu on 22 January, 2024
Author: P.Sam Koshy
Bench: P.Sam Koshy, N.Tukaramji
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE N.TUKARAMJI
WRIT PETITION No. 30607 of 2023
ORDER:
(per Hon'ble Sri Justice P.SAM KOSHY) Heard Sri Mahadev Anyrambhatla, learned counsel for the petitioner and Sri Jalakam Kishore Kumar, learned counsel for the respondents. Perused the material available on record.
2. The Challenge in the present writ petition is that, the order passed by the Telangana State Consumer Disputes Redressal Commission in F.A.I.A.No.1056 of 2023 in F.A.No.396 of 2023. The above said appeals stood rejected the impugned order, dated 10.10.2023 on the ground of Limitation. The appeal was preferred by the petitioner herein challenging the order passed in C.C.No.25 of 2020, passed by the District Consumer Redressal Commission, Ranga Reddy District, dated 22.11.2021. The District Commission had directed the petitioner/defendant before the District Commission, to refund an amount of Rs.2,50,000/- along with interest @ 6% per annum from 01.02.2018 till the date of realization. In addition, the payment of Rs.50,000/- towards compensation and Rs.10,000/- as cost of Litigation with a default interest clause i.e., @ 12% per annum from the date of default till the date of realization.
2
3. Before entering into the merits of the case, we would like to put the list of dates relevant for the adjudication of the present writ petition. The final order passed by the District Consumer Commission was on 22.11.2021, the petitioner herein preferred an appeal before the State Commission on 10.07.2023. The appeal was filed with a delay of (542) days. The appeal was supported with an application under Section 5 of the Limitation Act, seeking condonation of delay. The said Commission entertained the appeal along with the application for interim relief on 11.07.2023. After hearing the parties, the learned State Commission passed the following Orders:
Petition under Section 49(1) of C.P Act, coupled with an affidavit and memorandum of grounds of appeal praying this Hon'ble State Commission may be pleased to stay the operations of Orders passed by District Commission - Ranga Reddy in C.C.No.25 of 2020 dated 22.11.2021 including execution of EA/17 of 2022, pending disposal of the above appeal and pass such other or orders as this Hon'ble State Commission may deem fit and proper under the circumstances of the case and in the interest of justice.
This petition coming on before us for orders, upon perusing the petition and memorandum of grounds of appeal and upon hearing the arguments of M/s. A. Mahadev, counsel for the petitioner/opposite party, this Commission made the following order:
Counsel for the petitioner present. Heard. In view of the urgency explained and also in the circumstances stated in the affidavit filed in support of application, there shall be stay of all further proceedings pursuant to the orders in 3 C.C.No.25 of 2020, on the file of District Commission, Ranga Reddy, inclusive execution proceedings, subject to condition that the Petitioner/Appellant deposits 50% of the amount awarded, inclusive of statutory deposit, on or before 25.07.2023, before this Commission, failing which the application shall stand dismissed. Issue notice to the Respondent. Call on 25.07.2023.
4. In compliance of the aforesaid interim order, the petitioner deposited the 50% of the amount as ordered by the Appellate Commission of Rs.2,25,000/-. In addition to the statutory deposit already made at the time of filing of the appeal itself by way of FDR at Canara Bank, Madhapur Branch. Subsequently, the appeal came up for hearing on 10.10.2023, when the learned State Commission passed the impugned order, rejecting the appeal on the ground of limitation itself. It is this order which has lead to the filing of the present writ petition.
5. The fact to be considered by this Bench in this present writ petition is, as to whether the learned State Commission was justified in dismissing the First Appeal preferred by the petitioners after having entertained the same and having granted an interim order which the petitioners/appellant did complied with in terms of the order of the Appellate Commission.
6. The fact which needs to be borne in mind is that undisputedly the District Commission had passed an order on 4 22.11.2021. The order was an ex-parte order. The order was subjected to appeal with a delay of (542) days by the petitioner/appellant, along with an application for condonation of delay under Section 5 of the Limitation Act. In the usual course of practice, when any appeal is filed along with an application for condonation of delay, it is incumbent upon the Appellate Authority to first decide the application for condonation of delay before entering into the merits of the appeal and also before taking up the application for interim relief, attached along with the appeal. Unless, the appellant crosses the first barrier of explaining the delay, the point of considering the interim application in that matter, considering the appeal on merits does not arise at all.
7. If we put it differently, it also means that, an appeal been filed with an application for condonation of delay and an application for grant of interim relief, if the appellant is not able to give justifiable explanation for the delay that has caused in the filing of the appeal belatedly and if the appellate forums does not find the reasons mentioned in the Section 5 application to be a plausible explanation, it would be that application which would to be rejected first and as a consequence the appeal itself then stand dismissed on the ground of limitation.
8. In the instant case, along with the appeal admittedly, there was an application of condonation of delay and also an application 5 for grant of interim relief. It is in this context that the wordings of the order, dated 11.07.2023 i.e., the date on which the interim order granted by the State Commission, needs to be looked into. The 3rd paragraph of the order, the State Commission has made the following observations before passing the conditional order.
Heard. In view of the urgency explained and also in the circumstances stated in the affidavit filed in support of application, there shall be stay of all further proceedings pursuant to the orders in C.C.No.25 of 2020.
9. The plain reading of the aforesaid observation itself strongly proposes that the Commission was convinced with the explanation so provided by the appellants, so far as the delay that was caused in the filing of the appeal and the grounds forcing them to seek for an interim protection. It was in this backdrop that the interim protection was granted by the State Commission, ordering for depositing 50% of the awarded amount, within a stipulated period of time. The implication of the order itself forces this bench to draw a clear inference that while passing the interim order, the State Commission had principally condoned the delay in the filing of the appeal and it was in that context that the conditional interim order was passed which the appellant did comply with. There does not seem to be any dispute on that. The petitioners have produced before this Court by way of a memo the compliance of the order of the State Commission, so far as, the deposit of the 50% of the 6 awarded amount is concerned. Having passed a conditional interim order, which stood complied with, we are of the considered opinion that the learned State Commission should had entertained the appeal in a more pragmatic manner.
10. The learned counsel for the respondents today raises an objection so far as the maintainability of the writ petition in the teeth of the petitioner having statutory alternative remedy of appeal before the National Commission under Section 51 of the Consumer Protection Act. Taking clue from the Judgment of the Hon'ble Supreme Court recently decided in the case of Ibrat Faizan Versus Omaxe Buildhome Private Limited 1; wherein the Hon'ble Supreme Court has upheld the decision of the High Court in entertaining a writ petition against an order passed by the National Commission holding that writ petition challenging the order of the National Commission could be entertained by the High Court by way of a writ petition.
11. The Hon'ble Supreme Court in a very categorical terms has placed the National Commission as also the State Commission at par with a Tribunal and following the decision of the Hon'ble Supreme Court in the case of L.Chandra Kumar, has held that the State Commission as also the National Commission would be 1 (2022) SCC Online SC 620 7 amenable to writ jurisdiction before the High Court under articles 226 and 227 of the Constitution of India.
12. For the aforesaid reasons, we are not inclined to accept the objection raised by the learned counsel for the respondents for the simple reason that, we do not enter into the merits of the appeal or decide the veracity of the orders passed by the State Commission on merits.
13. In the instant case, it was the rejection of the First Appeal on the ground of limitation in the peculiar factual backdrop as has been narrated at the beginning of the present judgment. Where the Commission at the first instance had entertained the First Appeal, granted a conditional interim order, the condition imposed stood complied with and thereafter, the when the appeal was taken up for hearing, it stood rejected on the ground of limitation. Taking into consideration its previous orders, its implication and the consequences thereon, we are compelled to entertain the writ petition exercising the extraordinary writ jurisdiction under article 226/227 of the Constitution of India and hold that the approach of the State Commission in first entertaining the appeal and granting of interim relief which stood complied as well and later on, deciding the appeal on the ground of limitation to be technically not sustainable.
8
14. The order of the State Commission also would not be equitable for the reason that as a consequence of the interim order, the State Commission has literally got the order of the District Commission executed to the extent of 50% without even deciding the question of limitation at the threshold when it was required to be decided first before venturing to decide the application for interim relief and the appeal on its merits. Such an approach also would not be accepted to be a proper procedure to be adopted. As has been discussed earlier, when an appeal is filed along with an application for condonation of delay and an application for interim relief, it is incumbent upon the authority to first decide the application seeking condonation of delay and only in the event, if the said application stands allowed, can the forum have the power and jurisdiction to decide any other I.A filed along with the appeal. It is in this context, as we have earlier held that by implication, the condone application stood allowed, even though it was not reflected in its order, dated 11.07.2023.
15. Under these circumstances, we are constrained to allow the instant writ petition. The writ petition thus stands allowed. The impugned order stands set aside. The application for seeking condonation of delay in I.A.No.1056 of 2023 stands allowed and the delay of (542) days stands condoned. The matter stands remitted back to the Appellate Commission to decide the First 9 Appeal No.396 of 2023 on its own merits, in accordance with law, as expeditiously as possible. It is made clear that, the decision of the State Commission should not be in any manner be influenced by any of the observations made by this bench while deciding the writ petition. No costs.
Miscellaneous Petitions pending if any shall stand closed.
___________________ P.SAM KOSHY, J __________________ N.TUKARAMJI, J Dated: 22.01.2024 ds/Aqs