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.
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
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
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
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
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
(2022) SCC Online SC 620
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.
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
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
