KUBER MUTUAL BENEFIT LTD. vs RAJ VERMA

SINCE the above mentioned petitions, filed by the petitioner, under Section 17(1)(b) of the Consumer Protection Act (hereinafter referred to as ''the Act''), have common facts and raise common questions for consideration and are directed against a common order dated 22.1.2001 passed by South District Forum (District Forum No. II), the same have been heard together and are being disposed of by this common order.

THE facts, relevant for the disposal of the above mentioned petition lie in a narrow compass. THE petitioner Company, namely M/s. Kuber Mutual Benefits Ltd., which is a Nidhi Company was registered under Section 620-A of the Companies Act, 1956, whose object inter alia was to enable the members to save money, to invest their savings and to secure loans at favourable rates of interest. THE Company invited the people to make deposits and to give excellent returns. In pursuance of the scheme of deposit, respondents had deposited their money in Fixed Deposits which were to carry interest at the agreed rate. After the date of maturity, the same were payable by the petitioner to the respondents together with interest. Since the petitioner Company failed to pay the amount of deposit together with interest at the agreed rate to the respondents, the respondents filed the complaints against the petitioner Company before the District Forum under Section 12 of the Act with a prayer that petitioner be directed to refund the amount of deposit together with interest, compensation and costs. THE learned District Forum allowed the complaint, filed by the respondents and directed the petitioner Company to refund the amount in question to the respondents with interest. THE learned District Forum also awarded costs of litigation to the respondents. THE orders passed by the learned District Forum were not complied with by the petitioner Company and respondents thereafter filed petitions before the District Forum for execution of the orders. Show Cause Notices were issued to the petitioner Company and in pursuance of the notices, petitioner Company filed detailed reply along with certain annexures. THE gist of the reply and the annexures was that liquid money of the petitioner was lying in Fixed Deposits which were previously attached by the Income-tax Authorities. That the petitioner Company has a number of properties assessed value of which is more than the liabilities that the Company has to discharge. After hearing Mr. Vikas Pahwa, learned Counsel for the petitioner, and the respondents, the learned District Forum observed in its order dated 22.1.2001 that the list of properties attached by the petitioner Company with their reply may be sufficient to meet with the demands created by Forum''s orders under execution but the Forum does not have any paraphernalia to keep the properties under attachment or to take further appropriate steps towards the auctioning of any-one of the properties for realisation of the money and to pay to the decree-holders. It was suggested by the decree-holder/respondents that all the decrees be sent to District Court under Section 25 of the Act for executing the orders under due process of law. Accordingly, this contention of the respondents was accepted and all the decrees were ordered to be sent to the learned District Judge, Delhi with a certificate of non-execution with a request of getting the decrees executed in accordance with due process of law. A copy of forwarding letter addressed to the District Judge was also directed to be endorsed to the decree-holders/respondents so that they could obtain further orders from the learned District Judge, Delhi. Feeling aggrieved by the aforesaid order dated 22.1.2001, passed by learned South District Forum in execution applications, the petitioner has filed the present 84 revision petitions against the said order.

The Commission vide order dated 3.10.2001, directed for issue of notices to the respondents and also directed the revision petitioner to serve the same to the respondents dasti. An affidavit of Mr. Pradhuman Kumar Sharma, Chairman of the petitioner Company was filed affirming therein that notices to the respondents had been served. In view of the facts stated in the affidavit of service and the accompanying documents the service of the notices upon the respondents was treated as proper service vide order dated 14.12.2001. Ms. Anu Kamra, one of the respondents was present in person.

WE have heard arguments advanced by Mr. Vikas Pahwa, learned Counsel for the petitioner and Ms. Anu Kamra, one of the respondents, who was present in person. WE have carefully perused the material placed on record. It is significant to state that the orders passed by the learned District Forum under Section 14 of the Act were not challenged as no appeal in those cases was filed before the Commission under Section 15 of the Act, and therefore, those orders have become final.

DURING the course of arguments, Mr. Vikas Pahwa, who addressed arguments at length, submitted before us that as a consequence of the search conducted by the Income-tax Authorities on 13.5.1997, the authorities had seized FDRs worth about 26 Crores, illegally and submitted that if the Commission directs the Income-tax Department to disburse to the respondents from those seized FDRs, the decrees could be satisfied. It was also pointed out that the illegal seizure of the FDRs belonging to the petitioner Company was challenged in writ (Writ Petition Nos. 1633-1637/1999) before the Hon''ble High Court. It was also submitted that Hon''ble Delhi High Court vide order dated 3.11.1999 granted permission to sell two prime buildings situated at Greater Kailash Part-I, New Delhi worth about 18.11 Crores and appointed Shri Dalip Singh, a Retired District and Sessions Judge, as a Court Commissioner and directed him to sell properties and deposit the proceeds with the Registry of the High Court and that the Hon''ble Delhi High Court would decide the procedure for reimbursement of the same after the sale of properties. It was also submitted that the petitioner Company was in a position to make re-payment of the deposits made by the respondents as the Company assets spread over the country which are far more than the amount sought to be disbursed to the respondents. It was also pointed out that on 31.12.1999, the Company Law Board had considered the scheme and passed the scheme suo-moto on its own and directed the petitioner''s Company to start repayment of the deposits within three months i.e. from 1.4.2000 itself. Accordingly, it was contended that the order passed by the learned District Forum on 22.1.2001 directing transfer of the decrees to the learned District Judge for their execution is bad in law and has to be quashed. As already stated, the final order passed under Section 14 of the Act by the learned District Forum in complaints, filed by the respondents, had not been challenged as no appeal under Section 15 of the Act was filed by the petitioner Company before this Commission and, therefore, those orders have become final. As such, order dated 31.12.1999 passed by the Company Law Board does not, in our view, affect the execution proceedings filed by the respondents. The contention of the learned Counsel for the petitioner that this Commission may direct Income-tax Authorities for disbursing amount to respondents from the seized FDRs is without substance on the face of it. In case, petitioner is aggrieved of the act of Income-tax Authorities for seizing their FDRs illegally they are to approach the concerned authorities empowered under the Income-tax Act or to file a civil writ before the Hon''ble High Court.

AS already stated, above mentioned petitions have been filed under Section 17(1)(b) of the Act which reads as under : "xxx xxx xxx "xxx xxx xxx (b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity. (Underlined by us) On a bare perusal of the above provisions, it is apparent that the powers under Section 17(1)(b) of the Act are ''extra-ordinary'' powers and the same can be exercised by this Commission only in the circumstances/situations specified in Clause (b) of Sub-Section (1) of Section 17 of the Act and in no other circumstance/situation. In other words, the scope of a petition filed under Section 17(1)(b) is limited one. Analogous provision exists in the Civil Procedure Code, 1908 (hereinafter referred to as ''the C.P.C.''), in Section 115 dealing with ''Revisions''. Even before the amendment effected in the C.P.C., by the amending Act of 1976, Section 115, C.P.C., as it existed prior to the amendment, had been subjected to a large number of judicial decisions and the scope and ambit of Section 115, C.P.C. has been dilated upon by various Courts including the Supreme Court. In case Pandurang Dhondi Chougule & Ors. v. Maruti Hari Jadhav & Ors., AIR 1966 SC 153, Their Lordships of the Hon''ble Supreme Court, while examining the ambit and scope of Section 115 of the C.P.C., have held : "The provisions of Section 115 of the Code have been examined by judicial decisions on several occasions. While exercising its jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact, however, gross they may be, or even errors of law, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. AS Clauses (a), (b) and (c) of Section 115 indicate, it is only in cases where the subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may arise in proceeding instituted before subordinate Courts which are related to questions of jurisdiction. It is well settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the Court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of Section 115 of the Code. But an erroneous decision on a question of law reached by the subordinate Court which has no relation to questions of jurisdiction of that Court, cannot be corrected by the High Court under Section 115."

Thereafter in case M.L. Sethi v. R.P. Kapur, AIR 1972 SC 2379, it was held by Their Lordships of the Hon''ble Supreme Court that the jurisdiction of the High Court under Section 115 of the C.P.C. is of a limited character and the provisions contained in Section 115, C.P.C. are not directed against conclusions of law and fact in which question of jurisdiction is not involved. In the case of M.L. Sethi (supra), the Hon''ble Supreme Court, referred with approval, the decision of the Privy Council in Rajah Amir Hassan Khan v. Sheo Baksh Singh, (1884) II Ind. App. 237 (PC), and in case Balakrishna Udayar v. Vasudeva Aiyar, AIR 1917 PC 71, the Hon''ble Supreme Court quoted what the Privy Council had stated in case N.S. Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras, AIR 1949 PC 156. It was held that Section 115 empowers the High Court to satisfy itself on three matters : (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to have exercised jurisdiction; and (c) that in exercising jurisdiction the Court has not acted illegally, i.e. in breach of some provisions of law, or with material irregularity, i.e. by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision and if the High Court is satisfied on those three matters, it has no power to interfere because it differs from the conclusions of the subordinate Courts on questions of fact or law.

SERVICE of notice under Section 25/27 of the Act is a condition precedent before initiating action under Section 25/27 of the Act by the Foras established under the Act. It is pertinent to state that show cause notices had been served upon the petitioner Company and in pursuance of the show cause notices, Mr. Vikas Pahwa, learned Counsel for the petitioner Company had appeared before the learned District Forum. Both the parties were heard at length and vide impugned order dated 22.1.2001, the learned District Forum observed that it would not be possible for the Forum to execute the decrees as the Forum does not have any paraphernalia to keep the properties under attachment or to take further appropriate steps towards the auctioning of anyone of the properties for realisation of the money and to pay to the decree-holders/respondents. We are in full agreement with the observations of the learned District Forum as Foras are not having infrastructure for attachment of properties and their auction. On the suggestion of the decree-holders, the decrees were rightly directed to be sent to the learned District Judge Delhi with a certificate of non-execution with a request to get the decrees executed in accordance with due process of law. If the above criterion is applied to the present petition, it cannot be stated that in the given facts, the learned District Forum, while passing the impugned order dated 22.1.2001, has exercised a jurisdiction not vested in it by law or has failed to exercise the jurisdiction vested or acted in exercise of its jurisdiction illegally or with any other material irregularity. In view of the position explained above, the order dated 22.1.2001, being impugned in the present proceedings, in our opinion, suffers from no infirmity so as to call for any interference by this Commission in exercise of its extraordinary powers under Section 17(1)(b) of the Act. The above mentioned petitions, filed by the petitioner, are therefore, devoid of substance. The same merit dismissal. Revision Petitions dismissed.