Harish Tandon, J.@mdashThis revisional application is directed against order No. 9 dated. 10.1.2005 passed by the Kolkata District Forum in CPF Execution Case No. 49 of 2003. Before dealing with the point urged by the respective counsels before this Court, it would be beneficial to narrate the brief facts of this case.
2. The petitioner-company is a fully owned Government company and carrying on the business of selling Canco Brand Power Tillers which is basically used for agricultural purposes. The opposite party approached the petitioner for purchase of one quantity power tiller and deposited a sum of Rs. 3,000/- as and by way of advance against Rs. 47,715/- being the cost of the tiller on 21.12.1989. Nearly after a gap of three years, the opposite party allegedly informed the petitioner by letter dated 26.9.1992 that he intends to take the delivery of the said power tiller. By this time the cost of the said power tiller increased to Rs. 64,567.30 paisa.
3. According to the petitioner, it duly informed the opposite party regarding the policy of the company that the price of the goods sold by the petitioner shall be paid by the purchaser prevalent at the time of delivery of the said goods.
4. After submitting an affidavit disclosing the fact of loss of money receipt which was given by the petitioner at the time of booking the difference of the price of the said power tiller was paid and the petitioner made the delivery of the same on 29.10.1992.
5. By a letter dated 27.7.1993 the opposite party claimed the delivery of the power tiller which created a suspicion in the minds of the petitioner who referred the matter to the hand writing expert and it transpired from the record of the hand writing expert that some persons impersonating himself to be opposite party took the delivery of the said power tiller. A complaint is lodged to the local police station. By that time the price of the said power tiller increased to Rs. 79,325/- and the petitioner offered the opposite party to purchase the said power tiller at that price. Instead of taking delivery of the power tiller by depositing the price prevalent at the relevant time, the opposite party approached the Consumer forum. The Consumer Forum disposed of the proceeding directing the petitioner to deliver the power tiller within a month at a price prevalent as on 27.7.1993. An appeal before the State Commissioner was also dismissed. The writ petition challenging the said order was also dismissed by this Court. Thereafter, the petitioner vide letter dated 15.9.2000 intimated the opposite party that the price of the said power tiller as on 27.7.1993 was Rs. 70,285/- and called upon the opposite party to pay a sum of Rs. 67,285 after deducting a sum of Rs. 3,000/- which was paid by the opposite party as and by way of an advance.
6. The opposite party showed inability to take the delivery of the said power tiller. The opposite party thereafter approached the District Forum and sought to execute the order. The executing Court by the impugned order directed the petitioner to pay a sum of Rs. 47,985/- to the opposite party towards the unpaid balance amount for the purchase of the Canco Brand Power Tillers with its accessories by 18.2.2005. The petitioner has assailed the said order before this Court in this revisional application.
7. Mr. Kar, learned Advocate appearing for the petitioner submits that the District Forum has exceeded its jurisdiction in passing the impugned order which amounts to the variation of the original order which is sought to be executed by the opposite party in execution. In other wards it is contended that the executing Court cannot go beyond the decree.
8. Mr. Sandip Roy Chowdhury, learned Advocate appearing for the opposite party raised a preliminary objection as to the maintainability of the revisional application under Article 227 of the Constitution against the order passed by the District Forum. He strenuously argued that there was an alternative efficacious remedy available to the petitioner by way of an appeal before the State Commission.
9. To buttress such submission he placed reliance upon the judgment of the Single Bench of this Court in case of the Manager Contai Co-operative Bank Ltd & Anr. vs. Gouri Mondal, reported in 2009 (1) CLJ 929 (Cal) and a Single Bench judgment of the Madras High Court in case of
10. It is further contended that before examining the jurisdiction of the District Forum to entertain a complaint or to pass an order it would be appropriate to appreciate the objective it seeks to achieve and relied upon a judgment of the Apex Court in case of
11. In reply Mr. Kar submits that mere existence of alternative remedy does not take away the power of the High Court under Article 227 of the Constitution. By contending that if the order impugned before the High Court is wholly without jurisdiction, the jurisdiction under Article 227 of the Constitution can be invoked and placed reliance upon a judgment of this Court in case of Gouri Sankar Chatterjee vs. Howrah Municipal Corporation reported in 1998(1) CLJ 500.
12. Reliance is placed on a Full Bench judgment of this Court in case of
13. Lastly it is contended that the nature and scope of the power under Article 227 of the Constitution is supervisory and correctional jurisdiction which can be exercised where the order is passed in grave dereliction of duty or in abuse of the fundamental principles of law or justice and placed reliance upon a judgment of the Apex Court in case
14. It is a settled proposition of law that the executing Court cannot go beyond the decree. The executing Court cannot make out a case and modifies the decree but has to accept the decree as it stands and all the power conferred upon the executing Court to be exercised while executing the decree shall be exercised by it. Thus, there is no quarrel to the proposition that the executing Court have exceeded the jurisdiction by passing the impugned order for return of the money which was never contemplated in the decree which stood affirmed by the State Commission and ultimately by this Court.
15. The preliminary objection which has been raised by the opposite party as to the maintainability of an application under Article 227 of the Constitution as their existed an alternative remedy provided under the Consumer Protection Act is also not tenable.
16. The Court exercising power under Article 227 of the Constitution is under supervisory jurisdiction. The said power is embedded to the High Court to be exercised in an appropriate case despite the existence of alternative remedy. It is the self imposed restriction by the Court to relegate the parties to resort the efficacious remedy provided under the statute. The High Court is not denuded of its supervisory jurisdiction to mandate the inferior Court or Tribunal to act within the statutory bounds.
17. As has been held in case of
18. In case of
19. The Division of this Court in case of Pranab Kumar Ray & Anr. vs. Reserve Bank of India & Ors., reported in 1992 (2) CLJ 289, held that in spite of existence of alternative remedy the power under Article 227 of the Constitution can be invoked, in exceptional circumstances if there is a manifest injustice either in law or procedure.
20. The existence of an alternative remedy is not an absolute bar but is a self imposed restriction by the Court not to invoke such jurisdiction if the dispute is capable of being redress by approaching the proper forum. It would be profitable to quote section 19 of the Consumer Protection Act, 1996 which provides that a person aggrieved by an order made by the State Commission under sub-clause 1 of clause (a) of section 17 may prefer an appeal before the National Commission. Section 19 reads thus :-
19. Appeals.-- Any person aggrieved by an order made by the State Commission in exercise of its powers conferred by sub-clause (I) of clause (a) of section 17 may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed :
Provided that the National Commission may entertain an appeal after the expiry of the said period of thirty 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 State Commission, shall be entertained by the National Commission unless the appellant has deposited in the prescribe manner fifty per cent of the amount or rupees thirty-five thousand, whichever is less.
21. Section 21 of the said Act defines the jurisdiction of the National Commission which reads thus:-
21. Jurisdiction of the National Commission.-- Subject to the other provisions of this Act, the National Commission shall have jurisdiction--
(a) to entertain -
(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees one crore; and
(ii) appeals against the orders of any State Commission; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission 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.
22. On careful reading of the aforesaid provision an appeal before the National Commission may be preferred by a person aggrieved by an order passed by the State Commission under sub-clause (1) of clause (a) of section 17.
23. Sub-clause (1) of clause (a) of section 17 depicts the original jurisdiction of the State Commission to entertain the complaint where the value of the goods of service or compensation exceeds twenty lacks but does not exceed one crore.
24. Section 21 of the said Act confers jurisdiction upon the National Commission to accept the appeals against the order of any State Commission and also includes the power to call for the records and to pass the appropriate order in any Consumer Disputes which is pending or has been decided by the State Commission if the National Commission is satisfied that State Commission has exercised the jurisdiction not vested in it or vested to exercise jurisdiction so vested or acted in exercise of its jurisdiction illegal or with material irregularity.
25. Even if it is taken that there is a remedy by way of revision or appeal the same does not create an embargo upon the Court to exercise its power under Article 227 of the Constitution. In case of ANJ Grindlays Bank & Anr. vs. President District Consumer Disputes Redressal Forum & Ors. (supra) the Single Bench was considering the question whether there is a deficiency in service rendered by the bank which came into the initiation of the proceeding under the Consumer Protection Act. It is further held that the point which has been raised before this Court under Article 226 of the Constitution was not raised before the forum and in such perspective it was held that the said point should be raised before the forum first who is competent to decide relating to deficiency in service.
26. The Division Bench in case of United Bank of India vs. Hirak Mukherjee & Ors., reported in 1995 (1) CHN 501 on the facts and circumstances of the said case held that the same do not make out a case of such nature which attracts Article 227 of the Constitution in these words :-
3. On the facts and circumstances of the present case when we examined the various points raised, we find that there is no such mistake of the nature which attracts Article 227 of the Constitution making it a case fit for our interference. The petitioner should go to the National Commission and rise all these questions of law and facts which have been raised here. Since the period of limitation for preferring the appeal to the National Commission of 30 days has expired, the learned Counsel for the opposite parties prayed for extension of that period till 31.8.94. If the appeal is filed within that period, the National Commission would consider the request for condonation of the delay u/s 5 of the Limitation Act read with section 14 of the said Act.
27. Another Single Bench in case of Dr. Mrs. Mridula Purkaisthaya vs. Kalika Singha (supra) held that unless a case of exceptional nature is made out the invocation of powers under Article 227 of the Constitution should not be exercised.
28. In case of Manimalan vs. K. Subrayan (supra) the Madras High Court while considering an order permitting the amendment of the complaint by the District Forum found on merit that such power is conferred by the statute and thereafter opined that such point very well be agitated before the State Commission. In the said judgment the Madras High Court did not lay down the proposition that mere existence of an alternative remedy debars the jurisdiction of the High Court under Article 227 of the Constitution.
29. Even in case of Manager Contai Co-operative Bank Ltd & Anr. vs. Gouri Mondal (supra) this Court on the facts of the said case declined to interfere under Article 227 of the Constitution.
30. In case of Gouri Sankar Chatterjee vs. Howrah Municipal Corporation (supra), this Court held that if the order complained before this Court under Article 227 of the Constitution is wholly without jurisdiction the revisional application is maintainable.
31. Even the Full Bench of this Court in case of Gouri Sankar Chatterjee vs. Howrah Municipal Corporation (supra), held that the existence of alternative remedy is not bar under Article 226 and 227 of the constitution as a distinction between Article 226 and 227 of the Constitution has been obliterated for such purposes.
32. In the case of Joi Singh vs. M.C.P. (supra), the Apex Court held that the High Court under Article 227 of the Constitution has jurisdiction to ensure that all subordinate Courts as well as the statutory or quasi judicial tribunal shall exercise the power vested in them within the bounds of their authorities.
33. Admittedly in the case in hand the executing Court has exceeded its jurisdiction in passing a new decree/order.
34. Thus, I find that the District Forum has exceeded its jurisdiction in passing the impugned order and the said order is amenable to be corrected in exercise of the power under Article 227 of the Constitution.
35. The order impugned is therefore set aside.
36. The executing Court being the District Forum is directed to rehear the execution petition and shall decide the same after considering the objection if any taken by the petitioner by giving a reasoned order in accordance with law.
37. The revisional application thus succeeds. There shall be no order as to costs.
Urgent photostat certified copy of this judgment, if applied for, be given to the parties on priority basis.
