Mohan Jhawar And Company (C.A.), ... vs Dilipkumar S/O Gokulchand ...
2023 Latest Caselaw 10220 Bom

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
         NAGPUR BENCH AT NAGPUR

        WRIT PETITION No. 3552 OF 2023

PETITIONERS:       : 1.      Mohan Jhawar and Company
                             (Chartered Accountants), through its
                             proprietor Mohan Devkisan Jhawar,
                             Age 55 years, Occ. Chartered
                             Accountant, Add. KCL Business Park,
                             46-47, PU 4 Commercial, Behind C21
                             Mall, A.B. Road, Indore - 452010
                       2.    Mohan Devkisan Jhawar,
                             Age 55 years, Occ. Chartered
                             Accountant, Add. Shrivari, 121/2
                             Shanti Niketan, Behind Bombay
                             Hospital, Indore 452010
                                  Vs.
RESPONDENT         :         Dilipkumar s/o Gokulchand Sananda,
                             Age 61 years, Occ. Business,
                             Res. Balaji Plots, Khamgao,
                             Tah. Khamgao, Dist. Buldhana

Mr. Chintan Deopujari, Advocate for petitioners
Mr. U.J. Deshpande,, Advocate or respondent

                           CORAM: AVINASH G. GHAROTE, J.

DATED : 4th OCTOBER, 2023

ORAL JUDGMENT :

Rule. Rule is made returnable forthwith. Heard

finally with the consent of learned counsel appearing for rival

parties.

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2. The petition questions the final order of the

Consumer Dispute Redressal Commission, Buldhana, dated

14/12/2022, passed in Consumer Complaint No. 78/2022,

whereby the petitioner, who is the opponent therein has been

directed to make payment of the amount along with interest

and damages and costs.

3. It is contended by Mr. Deopujari, learned counsel

for the petitioners, that considering the fact that as a loan

was taken, the District Consumer Commission, could have

any jurisdiction to entertain and decide the complaint filed

by the respondent and the impugned order, therefore, would

be without jurisdiction, as no service was being rendered in

terms of the definition under Section 2(42) of the Consumer

Protection Act, 2019. He further submits, that the petitioners

have been unable to raise these pleas before the learned

District Consumer Commission, as the counsel for petitioners,

did not communicate the further steps to be taken, which has

also caused prejudice to the petitioners. He therefore

submits, that since there is jurisdictional error in the District

Commission in assuming jurisdiction, the impugned order is

liable to be quashed and set aside.

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4.          Mr.   U.J.   Deshpande,    learned    counsel       the

respondent sole supports the impugned order of the

Commission and contends, that there is no jurisdictional

error in view of the fact that the petitioner was a company

and therefore, under the provisions of the Companies Act was

not entitled to accept the loan from a third party, which in

view of Section 2(31) of the Companies Act has to be treated

as deposit and therefore, no fault can be found with the

impugned order of the learned Consumer Commission.

5. It is not in dispute that in pursuance of an interim

order, by this Court, an amount of Rs.5,00,000/- has been

deposited. The questions raised, are one which can be

canvassed by the petitioners before the Commission, who

would be competent to decide upon the same.

6. In that view of the matter, the impugned order

dated 14/12/2022 is hereby quashed and set aside and the

matter is remanded back to the District Commission,

Buldhana in order to afford an opportunity to the petitioners

to put-forth their stand before the District Commission

subject to the condition that the respondent shall be

permitted to withdraw the amount of Rs.5,00,000/-

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deposited by the petitioners in this Court along with accrued

interest if any, which amount shall be adjusted against any

future recoveries if directed to be made against the

petitioners. The petition is accordingly allowed in the above

terms. No costs.

Rule is made absolute in above terms. No costs.

(AVINASH G. GHAROTE, J.)

MP Deshpande

Signed by: Mr. M.P. Deshpande Designation: PA To Honourable Judge Date: 06/10/2023 14:28:20