Bombay High Court
Dwarkadas Mantri Nagri Sahakari ... vs Haridas Vithalrao Karde on 29 November, 2017
Bench: V. V. Kankanwadi
(Judgment) (1) W.P. No. 02106 of 2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Writ Petition No. 02106 of 2015
District : Aurangabad
Dwarkadas Mantri Nagri Sahakari
Bank Ltd.,
Through Chief Executive Officer,
Mr. Radheshyam s/o. Vithaldas Soni,
Age : 43 years, .. Petitioner
Occupation : Service, (Original
R/o. head office, Jalna road, Beed. appellant)
versus
Haridas s/o. Vithalrao Karde,
Age : Major,
Occupation : Agriculture,
R/o. At Po.: Aapegaon, .. Respondent
Taluka Ambajogai, (Original
District Beed. respondent)
...........
Mr. P.K. Lakhotiya, Advocate, for the petitioner.
Mr. S.S. Manale, Advocate, for the respondent.
...........
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 29TH NOVEMBER 2017
ORAL JUDGMENT :
01. Rule. Rule made returnable forthwith.
Heard finally with the consent of parties.
02. The petitioner - Bank is registered under
the Maharashtra Co-operative Societies Act, 2960.
(Judgment) (2) W.P. No. 02106 of 2015
Present respondent, who was complainant before
District Consumer Forum at Beed, filed a complaint
seeking compensation in respect of fixed deposits.
The said complaint was bearing C.C.No.31 of 2013. It
came to be allowed on 21.10.2013. It was directed
that the petitioner should pay amount of Rs. 20,000/-
together with interest at the rate of 12 % per annum.
03. Aggrieved by the said order, the petitioner
had approached the State Consumer Dispute Redressal
Commission, Mumbai, Circuit Bench at Aurangabad, by
filing First Appeal No. 28 of 2014. The said first
appeal was listed for many times and after hearing
both sides, interim stay was granted. However,
thereafter when the matter was called for hearing,
due to inadvertence of the Advocate for the
petitioner, the petitioner as well as Advocate
remained absent. On the next date also, they
remained absent because the earlier date was not
taken by the Advocate. Taking into considering the
absence of the petitioner as well as Advocate on
28.11.2014, the State Consumer Dispute Redressal
Commission dismissed the appeal in default. Now, the
petitioner has invoked the writ jurisdiction of this
Court under Articles 226 and 227 of the Constitution
of India, for setting aside the said order of the
State Consumer Dispute Redressal Commission, Mumbai,
Circuit Bench at Aurangabad, and restoration of the
appeal to the original stage.
04. The respondent has raised an objection
(Judgment) (3) W.P. No. 02106 of 2015
stating that in view of Section 21(b) of the Consumer
Protection Act, 1986, the National Commission will
have jurisdiction and, therefore, the petitioner
should approach the National Commission. In the
alternate, it was submitted that if at all the
petition is to be allowed, then heavy costs be
imposed upon the petitioner taking into consideration
the fact that the matter came to be dismissed due to
the negligence on the part of the petitioner to
remain present on the date of hearing of the appeal.
05. Learned Counsel appearing for the petitioner
has relied on the decision of this Court in the case
of Arun s/o. Sudamrao Modale Vs. Sangmeshwar Tractor,
Authorized Dealer, Ahmedpur, and another [2014(4) Mh.L.J.
757], wherein it has been held on the basis of the
decision of the Apex Court in the case of Rajeev
Hitendra Pathak and others Vs. Achyut Kashinath Karekar &
another [2012(2) Mh.L.J. (S.C.) 1], that when the appeal
filed before the State Commission has been dismissed
in default, then the State Commission cannot recall
the order. Further in that case, the application for
setting aside ex parte dismissal in default not
entertained by Registry of the Commission, this Court
set aside the said order to meet the ends of justice
and restored the appeal to the State Commission.
Further reliance has been placed on judgment of this
Court at Nagpur Bench delivered in Writ Petition No.
02697 of 2012 (Kamlakar Ramsa Chawre Vs. State Consumer
Disputes Redressal Commission, Maharashtra, Circuit Bench
at Nagpur & others) on 22nd February 2013, wherein
(Judgment) (4) W.P. No. 02106 of 2015
also, the State Consumer Disputes Redressal
Commission has dismissed the appeal in default. It
was stated that the writ petition is maintainable.
It was specifically pointed out that Section 21(b) of
the Consumer Protection Act would give the
jurisdiction to the National Commission when the
dispute was pending or decided by the State
Commission. But after dismissal in default, the
National Commission will not have jurisdiction.
06. In order to appreciate the point raised, I
would like to reproduce Section 21(b) of the Consumer
Protection Act, which reads as under :-
" Jurisdiction of the National Commission. -- Subject to
the other provisions of this Act, the National Commission
shall have jurisdiction --
(a) .............................................................................................
(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. "
The said provision gives jurisdiction to the National
Commission to call for the records and pass
appropriate orders in any consumer dispute which is
pending before or has been decided by any State
(Judgment) (5) W.P. No. 02106 of 2015
Commission. Further it states that where the State
Commission has failed to exercise jurisdiction so
vested or had acted in exercise of its jurisdiction
illegally or with material irregularity, then also
there will be the jurisdiction.
07. The facts of the case in Arun s/o. Sudamrao
Modale (supra) were different. The State Commission
had dismissed the appeal in default. However,
application for setting aside dismissal in default
order was filed. The matter, therefore, was taken up
before this Court and the provision of Section 22A of
the Consumer Protection Act was invoked. Even in the
case of Rajeev Hitendra Pathak and others (supra),
similar facts were there. However, in Writ Petition
No. 02697 of 2012, the facts are similar to the
present case. No doubt, objection regarding
maintainability of the writ was not raised, yet it can
be seen that Section 21 of the Consumer Protection Act
would give the limited jurisdiction, as enumerated in
clause 'b', to the National Commission.
08. In this case, the petitioner has come with a
case that due to the inadvertence of the Advocate, he
had not taken next date of the matter and, therefore,
on subsequent date also, he remained absent. It
appears that the concerned Advocate had not informed
the date to the petitioner and, therefore, the
petitioner was also absent on the two consecutive
dates. The petitioner shall not be put to loss due to
the inadvertent mistake of the Advocate and,
(Judgment) (6) W.P. No. 02106 of 2015
therefore, the said order of dismissal of the appeal
in default deserves to be set aside and the matter
deserves to be restored.
09. In the result, the writ petition is allowed.
(a) The order passed by the Maharashtra State Consumer
Dispute Redressal Commission, Mumbai, Circuit Bench at
Aurangabad, dismissing First Appeal No. 28 of 2014, in
default, on 28th November 2014, is hereby set aside
and the matter is restored to the file of the State
Commission for its decision on its own merits.
(b) Rule made absolute in the above terms. There
shall be no order as to costs.
( Smt. Vibha Kankanwadi )
JUDGE
...........
puranik / WP2106.15
