Padmini K. vs Networth Stock Broking Ltd.

THIS application has been placed by circulation in terms of Regulation 15 (2) of the Consumer Protection Regulations, 2005 before us since one of the Members, namely, Dr. P.D. Shenoy, Member has since relinquished charge on expiry of term of appointment.

THE condonation as also review application has been placed before us. After having gone through the application for condonation, review application as also papers annexed therewith, the review application was ordered to be listed for hearing. We have heard Ld. Counsel appearing on both sides. The complaint filed by the complainant/petitioner was allowed by the District Forum with certain directions. The said order of the District forum was challenged before the State Commission in appeal and the State Commission allowed the appeal. The complaint was dismissed reserving liberty to the complainant either to avail remedy of arbitration or to approach civil court if so advised. This order was challenged in revision. When the matter came up for hearing on 14.7.2009, the final order was passed on the statement made by the Ld. Counsel for the respondent, which is produced below: "Heard Counsel appearing on both sides. Learned Counsel for the Respondent has stated that after the passing of the impugned order, the present Petitioner has already filed arbitration proceedings and notice in respect of the same has already been issued to the Respondent. It is also submitted that the matter is now seized by the Karnataka High Court in relation to the said arbitration proceedings. In view of this, Learned Counsel for the Petitioner seeks to withdraw this revision petition. The revision petition is accordingly allowed to be withdrawn with no order as to costs".

The complainant/petitioner has sought review of the above order on the ground that as a matter of fact, the complainant/petitioner did not initiate any arbitration proceedings at all and it was only the OP who had initiated arbitration proceedings after filing of the complaint by the petitioner before the District Forum and the petitioner''s claim is not subject matter of the said arbitration. It is submitted that the statement made by Counsel for the Respondent on 14.7.2009 is factually wrong. The Counsel for the petitioner was misled in the light of the statement made by the learned Counsel for the respondent as a result of which the petition was withdrawn.

LD. Counsel for the respondent after placing reliance on the judgement of the Apex Court in the case of State of West Bengal & Ors. Vs. Kamal Sengupta & Anr. " 2008 AIR SCW 4294 submitted that there is no error apparent on record so as to justify review. The jurisdiction under Section 22 (c) of Consumer Protection Act is limited only to error apparent on record. For the reasons stated in para 5 of the conondation application delay in filing the review is condoned. In fact, the respondent/OP had filed application before the Consumer Forum for directions to refer the complaint to arbitration. This application was in fact rejected by the District Forum vide order dated 31.5.2008. In fact, the OP had filed arbitration proceedings in relation to its claim and an award was passed by the Arbitrator vide order dated 29.10.2008 whereby directions were given to the present petitioner to pay a sum of Rs.2,91,836.55. The present petitioner/complainant filed proceedings (Suit/Appeal) under Section 34 of the Arbitration and Reconciliation Act, 1966 to set aside the said award of the Arbitrator dated 29.10.2008 as also seeking directions to the Arbitrator to decide the claim of the present petitioner/complainant made therein in view of the order passed by the Karnataka State Consumer Forum, Bangalore. An application was filed by the present respondent/OP under section 42, which was dismissed as not maintainable, and the proceedings in the said Arbitration Suit 1 to 4 were ordered to be continued. In the said proceedings the present petitioner has claimed a sum of Rs.5.80 lakhs as damages and restoration of shares or alternatively a sum of Rs.6,76,916.16 paise which was also the subject matter of complaint before Consumer Forum. The present respondent/OP filed writ petition before the Hon''ble Karnataka High Court challenging the said order dated 18.4.2009 passed in the said suit seeking quashing/setting aside of the said order dated 18.4.2009.

FROM the above, it is clear that the statement made by the Respondent/OP on 14.7.2009 which has been quoted above, is in fact factually correct and as such, there is no error apparent on the basis of record to justify review. The contention of the present petitioner / complainant that as a matter of fact that the petitioner did not initiate any arbitration proceedings at all is not correct. It is on this basis, that the review has been sought on the ground that the Counsel for the petitioner was misled by the incorrect statement by the Counsel for the respondent as reflected in order dated 14.7.2009 which is in fact factually correct there being no error apparent on record. Therefore, there being no error apparent on the face of record, Review application is accordingly dismissed with no order as to costs.