The Manager vs Sri Hanumanthappa
2022 Latest Caselaw 5711 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 30TH DAY OF MARCH, 2022

                         PRESENT

         THE HON'BLE MRS.JUSTICE S.SUJATHA

                          AND

THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

             W.P.No.17248/2021 (GM - CON)

BETWEEN :

THE MANAGER
SHRIRAM CITY UNION FINANCE LTD.,
NEAR HEAD POST OFFICE, KOPPAL
REP BY ITS AUTHORISED SIGNATORY/
POWER OF ATTORNEY Mr. SUGANDA RAJ.            ...PETITIONER

              (BY SRI RAJESWARA P.N., ADV.)

AND :

SRI HANUMANTHAPPA
S/O YANKAPPA VADDAR
AGED ABOUT 46 YEARS,
R/AT KOLIHAL,
YELABURGA TALUK,
KOPPAL DISTRICT-583236                    ...RESPONDENT

                 (RESPONDENT SERVED.)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER DATED 04.08.2021 PASSED IN APPEAL NO.315/2013 BY
THE HON'BLE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL       COMMISSION        (ANNEXURE-A)      AND
CONSEQUENTLY RESTORE THE APPEAL NO.315/2013 FILED
BY THE PETITIONER ON THE FILE OF THE HON'BLE
                             -2-

KARNATAKA STATE CONSUMER               DISPUTES     REDRESSAL
COMMISSION FOR ARGUMENTS.

      THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, S. SUJATHA, J., MADE THE
FOLLOWING:

                            ORDER

The petitioner has assailed the order dated

4.8.2021 passed in Appeal No.315/2013 by the

Karnataka State Disputes Redressal Commission,

Bengaluru ('State Commission' for short) and

consequently, to restore the Appeal No.315/2013 filed

by the petitioner on the file of the State Commission, to

decide the matter on merits.

2. The facts relevant for the purpose of

adjudicating the matter are that, the complainant - Sri

Hanumanthappa had filed a complaint before the

District Consumer Disputes Redressal Forum, Koppal,

in CC.No.2/2010 alleging certain deficiencies in service

on the part of the Manager, Shriram City Union Finance

Ltd., Koppal Branch, which came to be allowed vide

order dated 11.2.2010 with the following directions;

(1) the opposite party/petitioner herein was directed to intimate the complainant within 30 days as to the price for which the Bajaj Platina Scooter seized has been sold; and

(2) the opposite party was directed to pay a sum of Rs.1,000/- (Rupees One Thousand only) towards expenses of the proceedings.

3. The appeal filed against the said order by the

petitioner before the State Commission came to be

dismissed on 22.11.2011. However, the directions

issued in CC.No.2/2010 not being complied with,

criminal complaint was filed under the provisions of

Section 27 of the Consumer Protection Act, 1986. The

District Consumer Disputes Redressal Forum vide order

dated 4.3.2013 directed the petitioner herein to undergo

simple imprisonment for one month and also to pay

Rs.2,000/- (Rupees Two Thousand Only), in default of

making payment of the fine amount, failing which the

accused/petitioner shall suffer further imprisonment for

a period of one week. Being aggrieved by the said order,

the petitioner had preferred Appeal No.315/2013 before

the State Commission and the said appeal has been

dismissed for want of appearance and arguments on

behalf of the petitioner. Hence, this writ petition.

4. Learned counsel appearing for the petitioner

submitted that clause 19 of the Standard Operating

Procedure, dated 21.5.2021 was in operation, due to

Covid - 19 pandemic there was a direction not to pass

any adverse orders on the ground of absence of

Advocates. The State Commission ignoring the same

has passed the impugned order in the absence of the

learned counsel appearing for the petitioner. No appeal

arising from a judgment of conviction of sentence

should be dismissed for non representation of the

Advocate for the accused as held by the Hon'ble Apex

Court in Criminal Appeal No.809/2021 (decided on

12.8.2021) in the case of K.Muruganandam and ors.,

v. State Rep. by the Deputy Superintendent of Police

and Anr. The State Commission without considering

any of the grounds urged in the appeal has failed to

exercise the jurisdiction vested in it in dismissing the

appeal. Learned counsel further submitted that the

alternative remedy of preferring an appeal before the

National Commission under Section 73 of the Consumer

Protection Act, 2019 would not arise in the present case

since the challenge made before this Court is not a final

order passed in terms of Section 72 of the Act of 2019.

Learned counsel has relied upon the following decisions;

1) The Manager, Shriram Chits (K) Pvt.Ltd.,

and Anr., v. Smt Krishnammal N,

W.P.No.38656/2019, decided on

3.2.2022, and,

2) Karnataka Housing Board v.

K.A.Nagamani, reported in (2019) 6 SCC

424.

5. The respondent has filed the statement of

objections to the writ petition in a sealed cover

addressed to Registrar General of High Court of

Karnataka.

6. We have perused the statement of objections

filed by the respondent. The main objection is

inasmuch as the maintainability of the writ petition

against the order of the State Commission. Reference

has been made to Section 73 of the Act of 2019.

7. We have given our anxious consideration to

the arguments advanced by the learned counsel for the

petitioner and the statement of objections filed by the

respondent.

8. Section 73 of the Act of 2019 provides for

filing an appeal against the order passed under Section

72 of the Act and the same reads thus;

"73. Appeal against order passed under section 72.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), where an order is passed under sub-section (1) of section 72, an appeal shall lie, both on facts and on law from--

(a) the order made by the District Commission to the State Commission;

(b) the order made by the State Commission to the National Commission;

          and
          (c)    the    order     made    by   the    National
          Commission to the Supreme Court.

(2) Except as provided in sub-section (1), no appeal shall lie before any court, from any order of a District Commission or a State Commission or the National Commission, as the case may be.

(3) x x x x ."

9. Section 72 of the Act of 2019 deals with

penalty for non compliance of the order and the same

reads thus;

"72. Penalty for non-complaince of order. - (1) Whoever fails to comply with any order made by the District Commission or the State Commission or the National Commission, as the case may be, shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty- five thousand rupees, but which may extend to one lakh rupees, or with both.

(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the District Commission, the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of first class for the trial of offences under sub-section (1), and on conferment of such powers, the District Commission or the State Commission or the

National Commission, as the case may be, shall be deemed to be a Judicial Magistrate of first class for the purposes of the Code of Criminal Procedure, 1973.

(3) Save as otherwise provided, the offences under sub-section (1) shall be tried summarily by the District Commission or the State Commission or the National Commission, as the case may be."

10. Against the order passed under Section 72

rightly the petitioner has filed an appeal under Section

73 before the State Commission. Aggrieved by the order

passed by the State Commission in the said appeal

exercising the power under Section 73, this writ petition

is filed. In the case of the Manager, Shriram Chits (K)

Pvt.Ltd., supra, the Co-ordinate Bench of this Court

while considering the challenge made to the order

passed by the State commission as well as the order

passed by the District Consumer Disputes Redressal

Forum relating to an execution petition filed under

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Section 27 of the Consumer Protection Act, 1986, has

entertained the writ petition observing that the

petitioner therein cannot be saddled with the liability to

pay interest in view of the inaction on the part of the

respondent in seeking withdrawal of the amount, which

was deposited earlier.

11. In the case of Karnataka Housing Board,

supra, the Hon'ble Apex Court has held that the

jurisdiction under Section 21(b) read with Section 15 of

the Consumer Protection Act, 1986, can be exercised by

the National Commission only in case of a "consumer

dispute" filed before the State Commissioner. The

Execution proceedings are independent proceedings and

the orders passed for enforcement of the final order in

the Consumer dispute, cannot be construed to be

orders passed in the 'consumer dispute', as such there

is no remedy provided under Section 21 to file a

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Revision Petition against an order passed in appeal by

the State Commission in execution proceedings.

12. Be that as it may, it is ex facie apparent that

the Standard Operating Procedure issued by this Court

during Covid - 19 pandemic was in operation during the

relevant period when the appeal has been dismissed for

want of appearance of the learned counsel for the

petitioner.

13. It is not in dispute that as per clause 19 of

the Standard Operating Procedure dated 21.5.2021 this

Court has directed all the District and Trial Courts not

to pass any adverse orders on the ground of absence of

learned counsel. Though it may not be directly

applicable to the State Commission but certainly has

some persuasive value having regard to the pandemic.

The State Commission has not ventured to consider the

case on merits and has dismissed the appeal for non-

appearance of the learned counsel for the petitioner. In

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our considered opinion, interest of equity and justice

would be met in setting aside the said order in order to

provide an opportunity to the petitioner to address

arguments in the appeal No.315/2013 before the State

Commission subject to imposing cost to compensate the

respondent.

14. Hence, we pass the following:

ORDER

i) Writ petition is allowed.

ii) The order of Karnataka State Consumer

Disputes Redressal Commission dated

04.08.2021 passed in appeal No.315/2013 is

set aside.

iii) The matter is restored to the file of

Karnataka State Consumer Disputes

Redressal Commission for reconsideration

subject to payment of cost of Rs.15,000/- by

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the petitioner to the respondent within a

period of four weeks from today.

iv) On such compliance, the Karnataka State

Consumer Disputes Redressal Commission

shall consider the matter on merits, after

providing an opportunity of hearing to both

sides and take appropriate decision, in

accordance with law, in an expedite manner.

SD/-

JUDGE

SD/-

JUDGE

nd