3BEN'S Constructions & 2 Ors vs Bency Raghavan

3 Ben’s Construction, Mr. Sabu Joseph and Mr. Joseph, three persons have approached this Commission by filing an Appeal Execution against the Order dated 22.02.2019 and the Recovery Notice dated 04.10.2021 issued by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (hereinafter referred to as the State Commission), whereby the State Commission had recorded that undertaking given by Mr. Sabu Joseph, that he will pay a sum of Rs.2,00,000/- within a period of one month from that day and the balance amount was to be paid within a further period of six months. For ready reference the Order dated 22.02.2019 passed  by the State Commission is reproduced below:

“2nd Judgment Debtor who was remanded to judicial custody produced from jail. Producing two D.Ds totaling sum of Rs.50,000/- he seeks release, undertaking to pay sum of Rs.2,00,000/- within a period of one month from today and to pay the balance amount within a  further period of next six months. 2nd Judgment Debtor is ordered to be released on executing an undertaking that he would pay  the sum due to the decree holder as stated before this Commission within the period stated by him. In default of payment as undertaken, proceedings will be initiated against 2nd Judgment Debtor for violating the undertaking and also for his arrest and production before this Commission”

It appears that the amount has not been paid so far, whereupon the Recovery Notice has been issued by the State Commission. I have heard Mr. Saju Jakob, learned Counsel for the Appellant and have perused the impugned Order dated 22.02.2019, passed by the State Commission, Recovery Notice dated 04.10.2021, issued by the State Commission, the ground taken in the Memo of Appeal and the documents filed along with it.

Learned Counsel for the Appellant submitted that on account of some unforeseen circumstances (i.e. devastating flood and Epidemic Covid-19), the undertaking given by the Appellants count not be complied with and therefore some more time be granted. The undertaking was given on 22.02.2019 and the Epidemic Covid-19,  started in March 2020.  More than four years have passed and the undertaking given has not been complied with till date.

It is well established position of law that any statement given by any person or the Counsel before any Court of Law, Tribunal or Authority, which has been recorded cannot be questioned/ resiled before the higher Court, Tribunal or Authority and the person who had given the statement cannot go beyond it. If the contentions is that no such statement was given the remedy is to approach the said Court, Tribunal or Authority, which has recorded the statement for rectifying the same. Reference is invited to the decision of the Hon’ble Supreme Court in State Of Maharashtra Vs. Ramdas Shrinivas Nayak & Anr., reported in (1982) 2 Supreme Court Cases 463, wherein it has been held that the statement of fact regarding proceedings in Court such as admission or concession made by a party recorded in the judgment of a Court is conclusive and not open to be contradicted in Appeal denying making of such statement. For the ready reference Paragraphs 2 to 8 of the Judgment/ Order of the Hon’ble Supreme Court in the case of State of Maharashtra Versus Ramdas Shrinivas Nayak & Anr. (Supra), which are relevant are reproduced below :

“2.   Gadgil, J. referred to the concession in the following words :-

However, I may observe at this juncture itself that at one stage it was expressly submitted by the learned counsel on behalf of the respondent that in case if it is felt that bias is well apparently inherent in the proposed action of the concerned Ministry, then in such a case situation notwithstanding the other Ministers not being joined in the arena of the prospective accused, it would be a justified ground for the Governor on his own, independently and without any reference to any Ministry. to decide that question.

Kotwal, J. put it even more explicitly and said:

...At one stage it was unequivocally submitted by the learned counsel on behalf of the respondents in no uncertain terms that even in this case notwithstanding there being no accusation against the Law Minister as such if the court feels that in the nature of things a bias in favour of the respondent and against a complainant would be manifestly inherent, apparent and implied in the mind of the Law Minister, then in that event, he would not be entitled to consider complainant's application and on the equal footing even the other Ministers may not be qualified to do so and the learned counsel further expressly submitted that in such an event, it would only the Governor, who on his own, independently, will be entitled to consider that question.

When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submissions made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation". (Per Lord Atkinson in Somasundaram Chetty V. Subramanian Chetty, AIR 1926 PC 136: 99IC 742)  We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. (Per Lord Buckmaster  in Madhu Sudan Chowdhri V. Chandrabati Chowdharain, AIR 1917 PC 30: 42 IC 527) That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.

In Rev. Mellor, [(1858) 7 Cox. C.C. 454: 6WR 322: 169 ER 1084] Martin, B. was reported to have said: "we must consider the statement of the learned judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity.

In Ring Emperor v. Barendra Kumar Ghose (28 Cal WN 170: AIR 1924 Cal 257: 38 Cal LJ411: 25 Cri LJ 817), Page, J. said:

….these proceedings emphasise the importance of rigidly maintaining the rule that a statement by a learned judge as to what took place during the course of a trial before him is final and decisive; it is not to be criticized or circumvented; much less is it to be exposed to animadversion".

In Sarat Chandra v. Bibhabati Debi (34 Cal LJ 302:AIR 1921 Cal 584:66IC 433), Sir Asutosh Mookerjee explained what had to be done:

……It is plain that in cases of this character where a litigant feels aggrieved by the statement in a judgment that an admission has been made, the most convenient and satisfactory course to follow, wherever practicable, is to apply to the Judge without delay and ask for rectification or review of the judgment…..

So the judges, record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the judge himself, but nowhere else.”

In view of the foregoing discussion, as the impugned Order has been passed by the State Commission on the statement given before it by Mr. Sabu Joseph and the Recovery Certificate has been issued for not complying / honouring the statement given, I do not find any good ground to exercise the Appellate jurisdiction to interfere  with the impugned Order and the Recovery Certificate  in the present Appeal. The Appeal fails and is dismissed in limine.