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Judgment
Subhash Chandra, Presiding Member
This revision petition under section 21(b) of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order dated 27.09.2019 in First Appeal No. A/673 of 2018 and M.A. No. 219 of 2019 dated 01.11.2019 of the State Consumer Disputes Redressal Commission, West Bengal, Kolkata (in short, the ‘State Commission’) dismissing the appeal of the petitioner against order dated of the District Consumer Disputes Redressal Forum, South 24 Parganas, Baruipur, Kolkata (in short, the ‘District Forum’) in Consumer Complaint no. 90 of 2016..
The brief facts of the case, according to the petitioner, are that it had entered into a Hypothecation-cum-Loan Agreement on 31.05.2012 with the respondent/complainant for Rs 3,00,000/- for the purchase of a Maruti Wagon R LXI CNG car. Under the agreement the respondent/complainant was to pay Rs 3,90,000/- inclusive of interest and charges @ 7.50% per year in 48 equal monthly instalments. The petitioner states that after paying some instalments in time, the respondent/complainant defaulted in payments or paid instalments on any date of the month despite notice. A final reminder notice was issued on 03.08.2016 for final payment of Rs 41,479/- within 5 days although the agreement stood terminated due to default. Since the amount was not paid, petitioner filed Misc. Case No 2950 of 2016 under Section 9 of the Arbitration & Conciliation Act,1996 before the 2nd Bench, City Court, Calcutta which appointed a Receiver vide order dated 10.08.2016 to take possession of the vehicle. On 28.08.2016 the petitioners took possession of the vehicle. The petitioner also filed a claim bearing SGRCV No. 76W of 2016 before the Sole Arbitrator, Chennai seeking recovery of Rs 63,018/- and by order dated 16.12.2016 the claim was allowed. The respondent/complainant filed CC No. 90 of 2016 before the District Forum which came to be decided, on contest, on 08.05.2018. The District Forum directed refund of instalments paid along with Rs 50,000/- for mental agony and harassment and Rs 5,000/- as costs within one month failing which interest @ 9% till realization. Petitioners moved the State Commission which, by the impugned order, dismissed the appeal on the ground that the appellant/bank submitted that the vehicle had been returned to the respondent/complainant whereas the BNA submitted stated that the vehicle had been sold in order to realize the sum due and payable, although the order noted that there was no record to that effect. The State Commission concluded that vehicle was sold beyond the knowledge of the respondent/complainant without making the receiver a party which was an intentional deficiency on part of the appellant/bank. The instant revision petitoin impugns this order.
Respondents were served; however, respondent 1 failed to appear. Vide order dated 19.01.2023 a final opportunity was provided to them to appear and argue their case. As they failed to do so on 09.05.2023, they were placed ex parte, and the matter heard finally. I have heard the learned counsel for the petitioner and given careful consideration to the material on record.
On behalf of the petitioner it was stated that the impugned order and the subsequent order dated 01.11.2019 in M.A. No. 219 of 2019 was based upon an incorrect submission by the learned counsel regarding the sale of the vehicle. It was submitted that the vehicle had not been sold in fact and, therefore, the appeal should have been allowed.
A perusal of the orders of the District Forum and the State Commission reveals that the foras below have pronounced orders which are detailed and have dealt with all the contentions of the petitioner which have been raised before me in this revision petition. It is also seen that the orders of these fora are based on evidence on record.
From the record it is apparent that the petitioner has challenged the impugned order on the very same grounds which were raised before the District Forum as well as the State Commission in appeal and the Miscellaneous Application. The concurrent findings on facts of these two foras are based on evidence led by the parties and documents on record. The present revision petition is, therefore, an attempt by the petitioner to urge this Commission to re-assess, re-appreciate the evidence which cannot be done in revisional jurisdiction. Learned counsel for the petitioner has failed to show that the findings in the impugned order are perverse.
This Commission, in exercise of its revisional jurisdiction, is not required to re-assess and re-appreciate the evidence on record when the findings of the lower fora are concurrent on facts. It can interfere with the concurrent findings of the fora below only on the grounds that the findings are either perverse or that the fora below have acted without jurisdiction. Findings can be concluded to be perverse only when they are based on either evidence that have not been produced or based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review under section 21 of the Act is therefore, limited to cases where some prima facie error appears in the impugned order. Different interpretation of same sets of facts has been held to be not permissible by the Hon’ble Supreme Court.
The Hon’ble Supreme Court in Rubi (Chandra) Dutta (2011) 11 SCC 269 dated 18.03.2011 has held that:
“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora.”
Reiterating this principle, the Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors (2016) 8 SCC 286 dated 02.08.2016 held:
“17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”
The Hon’ble Supreme Court in its judgment dated 05.04.2019 in the case of T Ramalingeswara Rao (Dead) Through LRs & Ors Vs. N Madhava Rao and Ors, Civil Appeal No. 3408 of 2019 dated 05.04.2019 held as under:
“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”
In view of the settled proposition of law that where two interpretations of evidence are possible, concurrent findings based on evidence have to be accepted and such findings cannot be substituted in revisional jurisdiction, this petition is liable to fail.
No illegality or infirmity or perversity is therefore found in the impugned order warranting interference of this Commission. The present revision petition is, therefore, found to be without merits and is accordingly dismissed.