Haryana State Co -Operative Housing Federation Limited vs O P S Tanwar

THIS appeal has been filed under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) against the order dated 12.5.2005 passed by District Forum Kurukshetra, whereby while accepting the complaint filed by the complainant -respondent No. 1, it has been held that the appellant -opposite party No. 2 and respondent No. 2 -opposite party No. 1 have charged excessive interest @ 16.3% instead of agreed rate of 15.6% and accordingly they have been directed to overhaul the account of the complainant as per agreed rate of interest @ 15.6% per annum. They have further been directed to refund the amount found excess charged with interest @ 10% per annum from the date of deposit till realisation. A sum of Rs. 5,000/ - was also awarded to the complainant as compensation for harassment. The above order be complied with within 30 days from the passing of the order. Aggrieved by the said order, the appellant -opposite party No. 1 has filed the present appeal.

WE have heard the learned Counsel representing the appellant and respondent No. 2 as well as respondent No. 1 in person at length. The respondent No. 1 during the course of arguments has taken a preliminary objection as to the entertainment of the appeal on the ground that no amount in terms of the requirement of second provision to Section 15 of the Act has been deposited and for that reason the appeal filed deserves to be dismissed. The submission made has been controverted from the side of the Counsel representing the appellant and also supported by the learned Counsel representing the respondent No. 2.

IN order to appreciate the submissions made, the relevant provisions of Second Proviso of Section 15, which was inserted vide Amended Act No. 62 of 2002 (hereinafter referred to as the Amended Act) need to be noticed and the same read as under : ''Provided further that no appeal by a person, who is required to pay any amount in terms of order of the District Consumer Forum shall be entertained by the State Commission unless the appellant has deposited in the prescribed manner fifty percent of the amount or twenty -five thousand rupees, whichever is less.'' The above provisions indicate the manner in which the requisite amount is required to be deposited at the time of filing of the appeal. The compliance of these provisions has not been made optional for the appellant for filing the appeal rather these provisions are mandatory in nature because they in clear term specify that no appeal filed by a person, who is required to pay any amount in terms of an order of the District Forum, shall be entertained by the State Commission unless the appellant has deposited the amount in the prescribed manner. The learned Counsel for the appellant has drawn our attention to the deposit of Rs. 2,500/ - made vide bank draft No. 547412 dated 13.6.2005, which according to him, is 50% of the amount in terms of the order of the District Forum and thus, no fault has been committed by the appellant in this regard. This contention has been seriously controverted from the side of the respondent No. 1. It was pointedly urged by him that apart from the payment of Rs. 5,000/ - awarded as compensation, the appellant and respondent No. 2 are required to pay interest @ 10% per annum on the excessive interest charged by them to the complainant and the total amount after calculating interest and compensation amount of Rs. 5,000/ - comes to Rs. 23,781.25 Paise. We find no exception to the stand of the respondent No. 1 with regard to the amount of Rs. 23,781.25 Paise payable in terms of the order of the District Forum dated 12.5.2005.

IN support of the above stand taken by the respondent No. 1, our attention has also been drawn to the observation made in the case Vijay Parkash D. Mehta and Jawahar D. Mehta v. Collector of Customs (Preventive) Bombay, AIR 1988 Supreme Court 2010, wherein it was observed ''the right of appeal contemplated under Section 129A and Section 129E is a conditional one and the Legislature in its wisdom has imposed that condition to depositing duty demanded or penalty levied. Although Section 129E does not expressly provide for rejection of the appeal for non -deposit of duty or penalty, yet it mades it obligatory on the appellant to deposit the duty or penalty, pending the appeal, failing which the Appellate Tribunal is fully competent to reject the appeal. The proviso, however, gives power to the Appellate Authority to dispense with such deposit unconditionally or subject to such conditions in cases of undue hardships. It is a matter of judicial discretion of the Appellate Authority. That discretion must be exercised on relevant materials, honestly, bona fide and objectively. Once that position is established it cannot be contended that there was any improper exercise of the jurisdiction by the Appellate Authority''. On the basis of above stated observations, it was submitted that the provisions of the Second Proviso of Section 15 of the Act are more stringent than the above stated provisions referred in the above cited judgment. Further reference was made to case Sohan Singh v. Kushla Devi and Others, 1998 ACJ 472, wherein it was laid down that a person, who is required to pay any amount under an award by the Tribunal cannot claim exemption for making the deposit on the ground that a co -respondent had filed an appeal and has made the requisite deposit in terms of requirement of Section 173(1) of the Motor Vehicles Act, 1988. Reliance was also placed on the case Rama Shankar Pandey v. Ram Raj and Others, I (2003) ACC 518=2004 ACJ 696, wherein the facts were that the accident occurred when the Motor Vehicles Act, 1939 (hereinafter referred to as the Act, 1939) was in force but the claim petition was filed after 1988 Act had become operative. A contention was raised that right to claim compensation accrued under 1939 Act is not protected under Section 6 of General Clauses Act and the appeal against the order made in terms of the requirement of provisions of Section 173(1) of the Act, 1988 against the order of Tribunal is not maintainable without making a deposit. The submission so made was accepted and for coming to this conclusion, reliance was placed on the case Vinod Gurudas Raikar v. National Insurance Company Limited, II (1991) ACC 449 (SC)=1991 ACJ 1060 (SC). Again our attention was also drawn from the side of the respondent No. 1 to the case Kesavan Nambeesan v. Madhavan, III (2003) ACC 39=2004 ACJ 315, wherein the facts were that the owner had filed an appeal under Section 173 of the Act, 1988 without making the deposit as required under first proviso to Section 173(1) of the Act. A plea was raised that as High Court had stayed the execution of the award, amount in terms of the provisions was not required to be deposited. Rejecting this stand, it was held that Section 173(1) does not give any power to the Court to dispense with the deposit under Section 173(1) of the Act. The learned Counsel for the appellant could not bring to our notice any other case taking a contrary view to the above cited judgments.

KEEPING in view the above detailed facts and findings recorded by the District Forum in the order dated 12.5.2005 there is no manner of doubt that determination in the shape of interest on the payable amount as calculated above which included the sum of Rs. 5,000/ - as compensation, is required to be paid by the appellant. The appellant has only deposited Rs. 2,500/ - which deposit is not in terms of the requirement of the provisions of Second Proviso of Section 15 of the Act. Under the circumstances, we have been left with no alternative but to hold that the present appeal is incompetent and cannot be entertained. The same is accordingly dismissed. Appeal dismissed.