Uttarakhand High Court
Mohini Kohli And Another ... vs State Consumer Dispute Redressal ... on 28 July, 2021
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 1365 of 2021
Mohini Kohli and another .....Petitioners
Versus
State Consumer Dispute Redressal Commission and others
.... Respondents
With
Writ Petition (M/S) No. 1367 of 2021
Mohini Kohli and another .....Petitioners
Versus
State Consumer Dispute Redressal Commission and others
.... Respondents
With
Writ Petition (M/S) No. 1368 of 2021
Mohini Kohli and another .....Petitioners
Versus
State Consumer Dispute Redressal Commission and others
.... Respondents
With
Writ Petition (M/S) No. 1376 of 2021
Mohini Kohli and another .....Petitioners
Versus
State Consumer Dispute Redressal Commission and others
.... Respondents
With
Writ Petition (M/S) No. 1377 of 2021
Mohini Kohli and another .....Petitioners
Versus
State Consumer Dispute Redressal Commission and others
.... Respondents
Present :
Mr. Sandeep Kothari, Advocate for the petitioners.
Dated: 28th July, 2021
JUDGEMENT
Hon'ble Sharad Kumar Sharma, J.
(Via Video Conferencing)
This is a bunch of five Writ Petitions, in which, the
petitioner has given a challenge to the orders dated 09.07.2021 (of like
date) passed by the Appellate Authority on 9th July, 2021, by virtue of
which, the petitioner's claim for waiver to comply the condition of
prior deposit, of 50% of the mandatory deposit, under the 2nd proviso
to Section 41 of the Consumer Protection Act of 2019, has been
denied.
2. The factual aspects, which are being independently dealt
with as it engages consideration in each of the Writ Petitions are:-
I. Writ Petition (M/S) No. 1365 of 2021, Mohini Kohli
and another Vs. State Consumer Dispute Redressal
Commission and others, the respondent/complainant had filed
a Complaint No. 297 of 2020, Anju Kumar Vs. Smt. Mohini
Kohli and another, whereby, he has claimed for the grant of
certain compensation, as it has been referred in the complaint
itself.
The said complaint was decided by the District
Consumer Grievance Redressal Forum, by virtue of the
judgment which was rendered on 27th March, 2021. As a
consequence thereto, a certain financial liability has been
fastened upon the petitioner to be paid to the complainant in the
said complaint case. The relevant part is extracted hereunder :-
"ifjokn Lohdkj fd;k tkrk gSA foi{kh dks vknsf"kr fd;k
tkrk gS fd og vkns"k dh frfFk ls ,d ekg ds Hkhrj ifjoknh dks]
mlls T;knk olwyh x;h /kujkf"k vadu [email protected]& :0 dk Hkqxrku e; 06
izfr"kr okf'kZd C;kt dh nj ls] okn ;ksftr djus dh frfFk
05&11&2020 ls vafre vnk;xh rd rFkk gtkZus ds :i esa vadu
25]00][email protected]& :0 dh /kujkf"k ifjoknh dks vnk djuk lqfuf"pr djsaA"
Being aggrieved against the said judgement of the
District Consumer Grievance Redressal Forum dated
27.03.2021, the petitioner has approached before the State
Commission by invoking the provisions contained under
Section 41 of the Consumer Protection Act of 2019.
The Appeal, thus preferred by the petitioner was
numbered as First Appeal No. 77 of 2021, Smt. Mohini Kohli
and another Vs. Anju Kumar.
II. Writ Petition (M/S) No. 1367 of 2021, Mohini
Kohli and another Vs. State Consumer Dispute Redressal
Commission and others, the respondent/complainant had filed
a Complaint No. 296 of 2020, Madan Pal Vs. Smt. Mohini
Kohli, whereby, he has claimed for the grant of certain
compensation, as it has been referred in the complaint itself.
The said complaint was decided by the District
Consumer Grievance Redressal Forum by virtue of the
judgment, which was rendered on 27th March, 2021. As a
consequence thereto, a certain financial liability has been
fastened upon the petitioner to be paid to the complainant in the
said complaint case, which is similar to one extracted above.
Being aggrieved against the said judgement of the
District Consumer Grievance Redressal Forum, the petitioner
has approached before the State Commission by invoking the
provisions contained under Section 41 of the Consumer
Protection Act of 2019.
The Appeal, thus preferred by the petitioner was
numbered as First Appeal No. 76 of 2021, Smt. Mohini Kohli
and another Vs. Madan Pal Singh.
III. Writ Petition (M/S) No. 1368 of 2021, Mohini
Kohli and another Vs. State Consumer Dispute Redressal
Commission and others, the respondent/complainant had filed
a Complaint No. 298 of 2020, Anil Kumar Vs. Smt. Mohini
Kohli, whereby, he has claimed for the grant of certain
compensation, as it has been referred in the complaint itself.
The said complaint was decided by the District
Consumer Grievance Redressal Forum by virtue of the
judgment, which was rendered on 27th March, 2021. As a
consequence thereto, a certain financial liability has been
fastened upon the petitioner to be paid to the complainant in the
said complaint case, which is similar to the one extracted above.
Being aggrieved against the said judgement of the
District Consumer Grievance Redressal Forum, the petitioner
has approached before the State Commission by invoking the
provisions contained under Section 41 of the Consumer
Protection Act of 2019.
The Appeal, thus preferred by the petitioner was
numbered as First Appeal No. 78 of 2021, Smt. Mohini Kohli
and another Vs. Anil Kumar.
IV. Writ Petition (M/S) No. 1376 of 2021, Mohini
Kohli and another Vs. State Consumer Dispute Redressal
Commission and others, the respondent/complainant had filed
a Complaint No. 314 of 2020, Rupesh Kumar Vs. Smt.
Mohini Kohli, whereby, he has claimed for the grant of certain
compensation, as it has been referred in the complaint itself.
The said complaint was decided by the District
Consumer Grievance Redressal Forum by virtue of the
judgment, which was rendered on 27th March, 2021. As a
consequence thereto, a certain financial liability has been
fastened upon the petitioner to be paid to the complainant in the
said complaint case. The relevant part / directions, which are
similar in nature has, already been extracted above.
Being aggrieved against the said judgement of the
District Consumer Grievance Redressal Forum, the petitioner
has approached before the State Commission by invoking the
provisions contained under Section 41 of the Consumer
Protection Act of 2019.
The Appeal, thus preferred by the petitioner was
numbered as First Appeal No. 79 of 2021, Smt. Mohini Kohli
and another Vs. Rupesh Kumar.
V. Writ Petition (M/S) No. 1377 of 2021, Mohini
Kohli and another Vs. State Consumer Dispute Redressal
Commission and others, the respondent/complainant had filed
a Complaint No. 330 of 2020, Hemant Kumar Vs. Smt.
Mohini Kohli, whereby, he has claimed for the grant of certain
compensation, as it has been referred in the complaint itself.
The said complaint was decided by the District
Consumer Grievance Redressal Forum by virtue of the
judgment, which was rendered on 27th March, 2021. As a
consequence thereto, a certain financial liability has been
fastened upon the petitioner to be paid to the complainant in the
said complaint case. The relevant direction given by the District
Consumer Protection Forum, which is identical in nature has
been extracted above.
Being aggrieved against the said judgement of the
District Consumer Grievance Redressal Forum, the petitioner
has approached before the State Commission by invoking the
provisions contained under Section 41 of the Consumer
Protection Act of 2019.
The Appeal, thus preferred by the petitioner was
numbered as First Appeal No. 80 of 2021, Smt. Mohini Kohli
and another Vs. Hemant Kumar.
3. By virtue of the impugned order, which has been put to
challenge, the petitioner's contention for granting of an exemption by
way of a waiver to comply with the provisions contained under the 2nd
proviso to Section 41, which provides that for an Appeal to be
entertained before the State Commission, the waiver from 50% of
deposit has been denied.
4. In order to better elucidate the controversy, the appellate
provisions of Section 41 of the Consumer Protection Act, 2019, is
extracted hereunder :-
"41. Appeal against order of District Commission. - Any
person aggrieved by an order made by the District Commission
may prefer an appeal against such order to the State
Commission on the grounds of facts or law within a period of
forty-five days from the date of the order, in such form and
manner, as may be prescribed:
Provided that the State Commission may entertain an
appeal after the expiry of the said period of forty-five days, if it
is satisfied that there was sufficient cause for not filing it within
that period:
Provided further that no appeal by a person, who is
required to pay any amount in terms of an order of the
District Commission, shall be entertained by the State
Commission unless the appellant has deposited fifty per cent.
of that amount in the manner as may be prescribed:
Provided also that no appeal shall lie from any order
passed under sub-section (1) of section 81 by the District
Commission pursuant to a settlement by mediation under
section 80."
5. In fact, if the language of the 2nd proviso is taken into
consideration, it uses the word that the State Commission "shall not
entertain" an Appeal against the judgment of District Commission.
The use of word 'entertainment' by the Legislature under the 2nd
proviso rather it creates a bar for the State Commission, to even
venture into the aspect of institution of an Appeal against the
judgment of District Commission, until and unless there is a prior
deposit of 50% of the amount as directed by the District Commission.
6. In the present case, the petitioner had filed an application
of waiver with the respective Appeals, before the Appellate Forum,
i.e. State Commission, as against the order passed by the District
Consumer Grievance Redressal Forum, praying for that a waiver may
be granted to them from complying with the conditions of the 2nd
proviso of Section 41 of the Act, which has been rejected by the State
Commission vide its impugned judgement of 9th July, 2021 (passed
respectively in each Appeals as detailed above).
7. The contention of the learned counsel for the petitioner is
that the decision taken by the State Commission, would not be
appealable before the National Commission; under Section 51 of the
Act, for the reason being that according to his interpretation, it is not
an adjudication of an appeal on merits; rather it was an impediment
which was being created by the order in the entertainment of appeal of
the petitioner, before the State Commission under the interpretation
given to the 2nd proviso to Section 41.
8. He further submits that; though outside the ambit of the
pleadings of the Writ Petition, that if the implications of the 2nd
proviso to Section 41 is taken into consideration, it is rather in breach
of his fundamental rights, from having recourse to an appropriate
legal remedy; as against the order which has been passed by the
District Commission; but since that is not an issue, which has been
agitated in the present Writ Petition or could have been determined in
the exercise of my power under Article 227 of the Constitution of
India, I am not venturing into that aspect of arguments, raised later, as
an afterthought, without any pleadings to the said effect.
9. In order to answer the argument which has been extended
by the learned counsel for the petitioner pertaining to the impact of;
whether the petitioner could invoke Article 227 of the Constitution of
India or would have availed a remedy under Section 51, as provided
under the Act of an appeal before the National Commission, my view
is that the nature of order, which has been passed, whereby, there has
been a denial to the waiver in favour of the petitioner from depositing
the 50% of the mandatory deposit contemplated under 2nd proviso to
Section 41, the said decision of the State Commission, will fall to be
within the ambit of the terms used "order", as it has been provided
under Section 51. Meaning thereby, yet again, if Section 51 is taken
into consideration, the person aggrieved even by an order of the State
Commission, even if it is not only a final adjudication, where the
ambit is being left open, to approach the National Commission under
Section 51 of the Act, but rather it is an order and the connotation of
the use of the word 'order' is wide enough to include within its ambit
the implications of the denial made by the impugned order dated 9th
July, 2021, to the petitioner for granting waiver to deposit 50% of the
amount under second proviso to Section 41, as a condition precedent
for the purposes of entertainment of an Appeal.
10. In view of the aforesaid reasoning, this Court is not
inclined to entertain the Writ Petitions, for the reason that the
petitioner has got an appropriate statutory remedy available to him
under Section 51 of the Consumer Protection Act, 2019, against the
impugned order of the State Commission.
11. Accordingly, the Writ Petitions are dismissed with the
liberty open to the petitioner to avail an appropriate statutory remedy.
(Sharad Kumar Sharma, J.)
28.07.2021
Shiv
