NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI MISCELLANEOUS PETITION NO. 14 OF 1996 IN ORIGINAL PETITION NO. 57 OF 1994 M/s. Gammon India Ltd. .. Complainant Vs. M/s. Gulmohar Estates Ltd. .. Opposite Party BEFORE: HONBLE MR. JUSTICE D.P. WADHWA, PRESIDENT HONBLE MR. JUSTICE C.L. CHAUDHRY, MEMBER HONBLE MR. JUSTICE J.K. MEHRA, MEMBER. MRS. RAJYALAKSHMI RAO, MEMBER. MR. B.K. TAIMNI, MEMBER National Commission has no power to review - Judgment of the Supreme Court in Jyotsana Arvindkumar Shah and Others (1994) 4 SCC 325 relied upon. For the Complainant : Ms. Indira Jai Singh, Sr. Advocate and Mr. Prashant Kumar and Mr Prasanjit Keswani, Advocates with her. For the opposite party : N E M O ORDER
Dated
the 4th September, 2001
PER JUSTICE
D.P. WADHWA (PRESIDENT)
With this order we are
deciding miscellaneous petition No.
14/96 filed by the complainant seeking, in effect, review of the order of the
National Commission dated 9.11.1995.
This
petition arises in the following circumstances.
On
3.3.1994 complaint was filed
by the complainant seeking direction to the opposite party to hand over possession of certain flats in
the Garden Estates developed by the opposite party. The agreement under which contract was
entered into between the parties contain an arbitration clause as under:
In the event
of any dispute or difference arising out of or relating to this Agreement between the parties, the same
shall be referred to the arbitration of a nominee of Shri A.N. Haksar, the
Chairman of the Vendor and any award made in such arbitration shall be final,
conclusive and binding on the parties. The venue of such
arbitration shall be New Delhi..
When the matter was
taken up on 9.11.1995 following order was passed by the National Commission, declining to go into the merits of the
complaint:
For
the Complainant :
Mr. Raju Ramachandran and
Mr. Vishwajit Singh, Advocates
For
the Opp. Party :
Mr. M.N. Krishnamani, Sr. Advocate
and Mr. B.R. Menon & Mr. Rohit
Chaudhary, Advocates with him.
O
R D E R
Since pursuant to the Clause
contained in the contract between the parties the dispute raised in the present
complaint petition stands already referred to arbitration and the arbitrator is
said to have entered on the reference, we are not inclined to conduct a
concurrent adjudication of the same question while the arbitration proceedings
are pending. On this short ground we decline to go into the merits of
this complaint and dismiss this petition without expressing any opinion
whatever on the contentions raised by the parties.
Sd/-
..
(V. BALAKRISHNA
ERADI)
PRESIDENT
Sd/-
..
(B.S.
YADAV)
MEMBER
Sd/-
..
(S.S.
CHADHA)
MEMBER
Sd/-
..
(R.
THAMARAJAKSHI)
MEMBER
Sd/-
..
(S.P.
BAGLA)
MEMBER
Complainant took the
matter to the Supreme Court (Civil
Appeal No.11637 of 1995), when it
passed the following order on 4.1.1996:
We see no
ground to interfere with the impugned order of the National Commission. The civil Appeal is dismissed.
Mr. R.K. Jain,
learned senior counsel appearing for
the appellant wanted to invite our attention to various documents to build an
argument that in fact there is no arbitration clause between the parties. He may, if so advised, show
these documents to the Commission, if permitted under law.
Sd/-
.J
(Kuldip
Singh)
Sd/-
.J
(S.
Saghir Ahmad)
In view of the observation made in the order of the Supreme
Court, the complainant filed the present miscellaneous petition.
On 24.8.2000 this Commission after receipt of this petition, passed the
following order:
The Original Petition is
restored. Post this Original Petition
in due course.
Two questions arise as
to the validity of this order dated
24.8.2000 itself and the
maintainability of miscellaneous petition.
It
has been held by the Supreme Court in the case of Jyotsana Arvind Kumar Shah & Ors. Vs. Bombay Hospital Trust
decided on 22.1.1999 that National Commission is not empowered to
review its own order. Even an ex-parte
order on merit cannot be reviewed. This miscellaneous petition for review is
therefore not maintainable as it is not permissible under the law.
The question as to the
jurisdiction of the National Commission to review its order was recently
considered by this Commission in the light of the decision of the Supreme Court
in the case of Bombay Hospital Trust, in the
matter M.O.H. Leathers Vs.
United Commercial bank (Miscellanoues petition No.1/2001 in original
petition No.110/1993, decided on 12.7.2001).
This is how the matter was considered:
This is an
application seeking review of the order dated 30th May, 1996. The order though in brief is on merit. Against this order the complainant went in
appeal to the Supreme Court (Civil
Appeal no.10990/96). On September 9, 1997, Supreme Court passed the following order:
Learned
counsel for the appellant states that the impugned order was passed by the National Consumer Disputes Redressal Commission behind the back of the
complainant. It is stated that the
notice was sent to the learned counsel
for the complainant on May 20, 1996
for hearing which was fixed on May 30, 1996.
The notice was returned unserved as the counsel had already left for
summer vacation. Be that as it
may, we give liberty to the complainant to move an application for setting
aside the order
on the alleged
ground. The appeal is disposed of. We, however, give liberty to the appellant
to approach this Court after the final order is passed by the Commission.
On
strength of this order present
application has been filed seeking review
of the order of
Commission dated May 30, 1996. No doubt
the order of the Commission was made
ex-parte. The order of the
Commission was, however, based on the provisions of Consumer Protection Act, 1986 under which the
Commission has been constituted.
In Jyotsana Arvind Kumar Shah & Ors. Vs.
Bombay Hospital Trust – 1999 (4) SCC
325 {decided on 22.1.1999} while
considering the powers of State Commission under the Act for setting aside an
ex-parte order, Supreme Court held that
no such jurisdiction vested with the State Commission. In the case before the Supreme Court an ex-parte order was made against the respondent and
on merit compensation of Rs.7.00 lakhs
with interest @ 12% was awarded in favour of the appellant. Resondent instead of preferring an appeal
under the Act filed a writ petition in the Bombay High Court which was
dismissed with an observation that the respondent could approach the appellate
authority or to make an appropriate application before the State Commission for
setting aside the ex-parte order, if
permissible under the law. Armed with
the order of the High court respondent filed an application before the state
commission for setting aside ex-parte order which was allowed. Revision was filed by the respondent before
the National Commission which was dismissed.
Appellant then filed an appeal in the Supreme Court against that
order. Supreme Court said that the
order of the State Commission setting
aside its ex-parte order was one without jurisdiction. It said that State Commission fell into an
error in not bearing in mind that the Act under which it was functioning had
not provided it with a jurisdiction to set aside an ex-parte reasoned
order. Supreme Court added:
It is also
seen from the order of the State
Commission that it was influenced by the concluding portion of the judgment of
the Bombay High Court to the
effect that the respondent
(writ petitioner) could
approach
the Appellate
Authority or make an appropriate application before the State Commission for
setting aside the ex parte order, if
permissible under
the law.
Here again, the State Commission
failed to appreciate that the
observation of the High court would help the respondent, if permissible under
the law. If the law does not permit the
respondent to move the application for setting
aside the ex parte order, which appears to be the position, the order of
the State Commission setting aside the ex parte order cannot be sustained. As stated earlier, there is no dispute that there is no provision in the Act
enabling the State Commission to set aside an ex parte order.
This judgment
of the Supreme court squarely
covers the present case and was
rendered considering the provisions of
the very Act with which we are concerned.
The learned counsel for the Complainant referred to other judgements of
the Supreme Court however, not rendered under the provisions of the Act, to contend that there is inherent
jurisdiction with any Tribunal to set
aside its ex-parte order. It is not necessary for us to
go into those
judgments as we have to follow the law
laid down by the Supreme Court in the case of
Jyotsana Arvind Kumar Shah & Ors. Vs. Bombay Hospital Trust. We have to consider the application for setting aside an ex
parte reasoned order as per law.
The
application is dismissed.
Similar arguments which
we noticed in our aforesaid order have
been stressed again by Ms. Indira Jai Singh, learned Senior Advocate now
appearing for the complainant. We
are afraid, we are unable to agree with her contention. Then it was submitted by Ms. Singh that on the date of hearing
when the complaint was rejected it was
just on the statement made by counsel for the respondent and there was no time
for the complainant to get instructions
if the matter had already been referred to arbitration. We cannot take note of such a contention,
particularly when we find that two
senior counsel engaged by the parties appeared before the Commission on that
date. There was an arbitration clause
which we have quoted above. In view of the judgement of the Supreme
Court in Bombay Hospital Trust case,
the order restoring the original
petition is non est being contrary to the law laid down by the Supreme
Court.. The order dated
9.11.1995 cannot be reviewed. In
these circumstances, this miscellaneous petition fails and it is dismissed.
.J.
(D.P.
WADHWA)
PRESIDENT
..J.
(C.L.
CHAUDHRY)
MEMBER
..J.
(J.K.
MEHRA)
MEMBER
.
(RAJYALAKSHMI
RAO)
MEMBER
..
(
B.K. TAIMNI)
MEMBER