CORAMTHE HONOURABLE MR v. Sulaiman Vayala

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 04.12.2007CORAMTHE HONOURABLE MR.JUSTICE M.VENUGOPALCRP.NPD.No.2028 of 2003Mustafa Avikkal .. Petitioner/ComplainantVersusSulaiman Vayala .. Respondent/Opposite partyPetition filed under Article 227 of Constitution of India against theorder dated 04.03.2003 in un-numbered M.P.No. of 2003 in Dispute No.6 of2000 on the file of the State Consumer Disputes Redressal Commission atPondicherry.For Petitioner:Mr.D.ShivakumaranFor Respondent[served]:No appearanceORDERThe Civil Revision Petitioner herein is the complainant in DisputeNo.6 of 2000 before the State Consumer Disputes Redressal Commission,Pondicherry.2.The revision petitioner/complainant has filed a complaint undersection 18 read with sections 12 and 13 of the Consumer Protection Act,1986 against the respondent/opposite party inter-alia stating that therespondent/opposite party did the construction work without any care anddiligence and the work was given to him since the respondent/oppositeparty is an architect and thinking that he is an expert builder. Onverification it was found that the construction was substandard and thatmoney was spent like anything etc. https://hcservices.ecourts.gov.in/hcservices/

3.It is the specific case of the revision petitioner/complainant thatRCC roof of the first floor is leaking on all sides and the scene is verypathetic and from the sight itself, it will be revealed that the intentionof the respondent/opposite party was to spindle money from the revisionpetitioner/complainant by making construction investing lesser amount andwhen complained about the leakage, the respondent/opposite party statedthe same will be cured and now, the leakages exposes its maximum heightand that the leakage cannot be cured or rectified and because of thecarelessness and the way of dealing with the work, the leakage took placeand therefore, the revision petitioner/complainant claimed a sum ofRs.3,00,000/- towards damages on the above count. It is the further standof the revision petitioner/complainant that as per the calculation, thetotal amount payable to the respondent/opposite party is onlyRs.6,38,650/- and the amount calculated by the respondent/opposite partyis Rs.8,70,000/- and when the revision petitioner/complainant questionedabout the veracity of the account, the respondent/opposite partydiscontinued the work and the revision petitioner/complainant wasperforced to complete the work through others since the revisionpetitioner/complainant was very much in need of occupation of the house.The revision petitioner/complainant kept all accounts regarding the workdone by him through other contractor with corresponding skills.4.It is the averment in the complaint in Dispute No.6 of 2000 filedby the revision petitioner/complainant before the State Consumer DisputesRedressal Commission, Pondicherry that the respondent/opposite party madea calculation showing high amount and it is noted that even themeasurements regarding some items are wrong and it appears that thebalance payable, according to the account was Rs.2,28,530.60. In short,the revision petitioner/complainant in the complaint in Dispute NO.6 of2000 has prayed for the relief of directing the respondent/opposite partyto pay a sum of Rs.7,31,350/- including damages of Rs.2,00,000/- claimedunder the caption ‘mental tension and inconvenience’.5.The respondent/opposite party in the statement filed before theState Consumer Disputes Redressal Commission, Pondicherry has among otherthings, stated that work was done by the respondent/opposite party to thesatisfaction of the revision petitioner/complainant and the complainantand his representative used to inspect the work and were satisfied aboutthe work and since he was satisfied with the work, the revisionpetitioner/complainant regularly used to pay to the respondent/oppositeparty and the amount of the construction work was given to the revisionpetitioner/complainant on 13.12.1999 detailing the work done and theamount due to the respondent/opposite party and as per the accountsfurnished to the revision petitioner/complainant, a sum of Rs.2,28,530.60was due to the respondent/opposite party and towards the payment of thissum, two cheques were issued by the revision petitioner/complainantbearing Nos.058190 dated 15.03.2000 for Rs.1,00,000/- drawn on Catholic https://hcservices.ecourts.gov.in/hcservices/ Syrian Bank Limited, Choroda in favour of the respondent/opposite partyand when these cheques were presented by the respondent/opposite party tothe State Bank of Travancore, Peringathur Branch. The said cheques werereturned by the Bank on 08.07.2000 with two return Memos containing anendorsement ‘insufficient funds’ and therefore, the cheques were nothonoured.6.A complaint was filed by the respondent/opposite party before thelearned Judicial First Class Magistrate, Thalassery, as C.C.No.8 of 2001and it is still said to be pending. The respondent/opposite party filed asuit in O.S.No.51 of 2001 on the file of the Sub Court, Thalassery forrealization of this amount and it is also pending.7.The defence of the respondent/opposite party as seen from thestatement filed by him is that there was no deficiency of service and thatthe complaint was legally unsustainable.8.It is not in dispute that Dispute No.6 of 2000 was dismissed by theState Consumer Disputes Redressal Commission, Pondicherry dated17.01.2003. The State Consumer Disputes Redressal Commission in its orderdated 17.01.2003 has inter-alia observed that ‘when once a civil suit ispending for the relief sought for, the rule of law pointed out by thecounsel for the opposite party in his arguments, the complaint itself istherefore not maintainable’ and it was ultimately held that the complaintwas not maintainable in law.9.The revision petitioner/complainant has filed a miscellaneouspetition in Dispute No.6 of 2000 which is un-numbered on 20.02.2003praying the State Consumer Disputes Redressal Commission, Pondicherry toset aside the order passed in Dispute No.6 of 2000 on 17.01.2003 afterhearing the case of the revision petitioner/complainant in the matter.The revision petitioner/complainant in un-numbered miscellaneous petitionhas stated that he was in employment abroad [in Syria] and that in lieu ofhis employment which required frequent travelling, he reposed trust andconfidence in his advocate in the matter to represent his case and thus,he did not appear for hearing in the matter before the State ConsumerDisputes Redressal Commission and it is essential that an opportunity ofhearing may be granted on merits of all facts and applicable laws andprecedents in matter.10.The revision petitioner/complainant came to know about thedismissal of his complaint in Dispute No.6 of 2000 upon despatchingcertified copy of the said order on 24.01.2003. In un-numbered M.P. of2003 in Dispute No.6 of 2000, the State Consumer Disputes RedressalCommission, Pondicherry, has passed orders on 04.03.2003, categoricallystating that the order passed by the State Commission was on merits andthat the only legal course open for the revision petitioner/complainant is https://hcservices.ecourts.gov.in/hcservices/ to prefer revision to the National Commission and when the matter wascalled, the advocate on record and the party, both were absent. Norepresentations were made on their side and that the Commission havingperused the entire material available on record, passed orders dated17.01.2003 on merits and as such, there was no need to hear the revisionpetitioner/complainant since final orders were passed and under thesecircumstances, the miscellaneous petition was rejected.11.As against the orders passed in the un-numbered M.P. of 2003 inDispute No.6 of 2000 on 04.03.2003 by the State Consumer DisputesRedressal Commission, Pondicherry, the revision petitioner/complainant hasfiled the present Civil Revision Petition.12.As far as the present case is concerned, the filing of O.S.No.51of 2001 for realization of the amount filed by the respondent/oppositeparty before the Sub Court, Thalassery, and the matter is subjudice, isnot disputed by the revision petitioner/complainant. In this connectionit is to be pointed out that in OSWAL FINE ARTS V. H.M.T.-1991 CPC 43……….[1991] 1 CPJ 330, it is observed by the National Commission that ‘animportant principle when a matter is subjudice before the ordinary CivilCourt of the land, the Consumer Commission cannot and will not entertainany claim for compensation in respect of the same subject matter’.13.In S.JAMES VINCENT V. GREATER COCHIN DEVELOPMENT AUTHORITY-1994[1] CPJ 174 [NC], the National Commission upheld the order of the StateCommission holding that the complainant suppressed the fact that thematter was already subjudice in the Sub Court before a civil court andthat it was held that the complaint was gross abuse of the ConsumerProtection Act,1986.14.The orders passed by the State Consumer Disputes RedressalCommission, Pondicherry, in Dispute No.6 of 2000 of 17.01.2003, dismissingthe complaint, has become final and there cannot be any dispute that thesaid order was passed on merits. As against the said orders passed by theState Consumer Disputes Redressal Commission, Pondicherry, the revisionpetitioner/complainant has to take further proceedings in the manner knownto law. It is suffice for this court to state that without takingrecourse to the further proceedings available under law, it is not open tothe Civil Revision Petitioner to file M.P. of 2003 [un-numbered] prayingthe Commission to set aside the order passed by it in Dispute NO.6 of 2000dated 17.01.2003 inasmuch as the order passed on 17.01.2003 were onmerits. As such, the Civil Revision Petition filed by the revisionpetitioner/complainant is not maintainable per-se in law and the same isliable to be dismissed in the considered opinion of this court. https://hcservices.ecourts.gov.in/hcservices/

15.As a matter of fact, when the respondent/opposite party has fileda suit in O.S.No.51 of 2001 on the file of the Sub Court, Thalassery,before a civil court, the complaint in Dispute No.6 of 2000 filed by therevision petitioner/complainant has no legs to stand in the eye of law, inthe considered opinion of this court.16.The Civil Revision Petitioner, though in the Memorandum of groundsin the Civil Revision Petition has taken a plea that the order dated04.03.2003 passed by the President of the State Consumer DisputesRedressal Commission, Pondicherry, is contrary to Section 14[2] of theConsumer Protection Act for want of Corum. Learned counsel for therevision petitioner has not urged the same before this court. It isrelevant to point out that the M.P.No. of 2003 filed by the revisionpetitioner/complainant to set aside the orders passed by the StateConsumer Disputes Redressal Commission, Pondicherry, on 17.01.2003 wasrejected by the State Commission at the un-numbered stage on the ground ofmaintainability of the said petition holding that the orders passed on17.01.2003 by the State Commission were on merits and final one.17.In this connection, it is useful to refer to section 29[A] of theConsumer Protection Act, 1986 which envisages that, ‘no act or proceedingof the District Forum, the State Commission or the National Commissionshall be invalid by reason only of the existence of any vacancy amongstits Members or any defect in the constitution thereof’ and the word ‘only’in the opinion of this Court clearly indicates that the section bars achallenge on the ground only of defect in the constitution of any Forum orany Commission.18.Therefore, in view of the bar under section 29[A] of the ConsumerProtection Act,1986, the plea taken in the grounds of the Civil RevisionPetition that the order dated 04.03.2003 of the State Commission iscontrary to section 14[2] of the Consumer Protection Act, 1986 for want ofCorum is otiose and untenable.19.In the light of the above discussions, this court comes to thedefinite conclusion that the Civil Revision Petition is not maintainablein the eye of law and the same is hereby dismissed in the interest ofjustice and the orders passed by the State Consumer Disputes RedressalCommission, Pondicherry, dated 04.03.2003 in un-numbered M.P.No. of 2003in Dispute No.6 of 2000 is confirmed. However, there shall no order as tocosts. https://hcservices.ecourts.gov.in/hcservices/

20.Lastly,though the learned counsel revision petitioner/complainant,before this court, has prayed for a liberty to be given to the revisionpetitioner/complainant as per section 14 of the Limitation Act, 1963 inregard to the exclusion of time of proceeding bona fide, in the courtwithout jurisdiction, this court opines that the revisionpetitioner/complainant is ineligible to claim the said relief inasmuch asthe complaint was preferred before the proper Forum, viz., State ConsumerDisputes Redressal Commission, Pondicherry.ApSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The State Consumer Disputes Redressal Commission Pondicherry.2. The Record Keeper, V.R.Section, High Court, Madras.+1 cc to Mr.D.Shivakumaran, Advocate Sr.No.71590.JRG(CO)dcp.7.12CRP.NPD.No.2028/2003