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Judgment
The present revisionist, Prabhakant Shukla, is an Advocate from Kanpur, who had filed a Consumer Complaint before the District Forum alleging that fake and incorrect demands were raised by the Opposite Party in the telephone bills regarding internet charges. The Revisionist had taken a Mobile Telephone Connection from the Opposite Party No. 1 Reliance Communications Ltd. (previously known as M/s. Reliance Infocomm Services) bearing Telephone No. 3330994 way back in September 2003. This connection which was extended to the Revisionist on 05.09.2003 was without any request for or option of internet facility. The Revisionist kept on making payments when to his surprise in the bills that were raised on 02.01.2004, internet charges were included therein without there being any such agreement or any facility of internet being either requested or provided to the Revisionist. It is alleged by the Complainant / Revisionist that the same was resisted but unfortunately, the connection was deactivated, followed by disconnection and finally termination of the services on 03.10.2004.
The Revisionist then instituted a Consumer Complaint No. 229 / 2005 before the District Forum on 10.01.2005, which after contest was allowed by the District Forum on 29.03.2011.
An Order was passed in the case of “M. Krishnan vs. Telegraph Services” in a dispute decided by the District Forum Kozhikode, Kerala where the Complaint filed by a Consumer in respect of such similar fake bills came to be allowed. Against this a jurisdictional issue was raised in terms of Section 7-B of the Indian Telegraph Act 1885 (hereinafter referred to as the 1885 Act) before the Kerala High Court, contending that such a dispute was not maintainable before the Consumer Forum, as in respect of the disputed bills a statutory arbitration has been provided for. The said Writ Petition came to be dismissed by a learned single Judge upholding the Order passed by the District Forum and the Letter Patents Appeal (LPA) also met the same fate upon a reference before the Full Bench of the Kerala High Court.
The same was carried further by the Telegraph Department to the Supreme Court where vide Judgment dated 01.09.2009, it was held that in view of the Provisions of Section 7-B of the 1885 Act, Arbitration Proceedings are an effective statutory remedy barring other remedies.
Following the said decision, the National Commission in the case of “Usha Seth vs. Reliance Infocom Limited” [Revision Petition No. 3842 / 2007] vide Order dated 23.01.2012, held that the Consumer Forum will not have jurisdiction to entertain any such claim relating to disputed telephone bills.
Relying upon the legal proposition in the Judgments referred to above, the Opposite Party No. 1 Reliance Communication Ltd. preferred an Appeal No. 932 / 2011 before the State Commission. The State Commission vide Judgment dated 03.07.2012, allowed the Appeal and set aside the Order dated 29.03.2011 passed by the District Forum on the ground of jurisdiction.
Assailing the Order dated 03.07.2012 passed by the State Commission, the Revisionist preferred a Revision Petition before this Commission that was dismissed on 14.01.2013 upholding the order of the State Commission to the effect that the dispute can be resolved by way of Arbitration and not before the Consumer Fora.
Challenging the Order of the National Commission, the Revisionist filed Civil Appeal No. 4994 / 2016 before the Supreme Court. The Apex Court vide order dated 20.03.2023, set aside the order dated 14.01.2013 passed by this Commission and remitted the matter with a direction to decide the same within 3 months. Since certain observations were made in the Order of the Apex Court, the same is extracted herein below:-
“1. The appellant has laid challenge to an order dated 14012013 passed by the National Consumer Disputes Redressal Commission, New Delhi (hereinafter “National Commission”) whereby his Revision Petition No.3766/2012 has been summarily dismissed by way of the following order:
“Heard the petitioner. In view of the decision of the Apex Court passed in Civil Appeal No.7687 of 2004 “General Manager, Telecom V/s. M. Krishnan & Anr.” that a dispute covered by the provisions of Section 7D of the Indian Telegraph Act shall be determined by way of arbitration, present revision petition is not maintainable. The same is hereby dismissed.”
It may be seen that the National Commission held that the Revision Petition was not maintainable in view of judgment of this Court in “General Manager, Telecom V/s. M. Krishnan & Anr.”
It is fairly pointed out by learned counsel for Respondent No.1 that the abovecited twoJudge Bench decision of this Court has been overruled by threeJudge Bench of this Court in “Vodafone Idea Cellular Limited vs. Ajay Kumar Agarwal” (2022) 6 SCC 496, para 22 whereof reads as follows.
“We are unable to subscribe to the view which has been adopted in the above decision in M Krishnan(supra). The decision is incorrect on two grounds. First, it failed to recognize that the Act of 1986 is not a general law but a special law that has been enacted by Parliament specifically to protect the interest of consumers. Second, even if it is assumed that the Act of 1986 is a general law, it is a settled position of law that if there is any inconsistency between two legislations, the later law, even if general in nature, would override an earlier special law.”
Thus, keeping in view the law laiddown by this Court in “Vodafone Idea Cellular Limited vs. Ajay Kumar Agarwal”, (supra) the revision petition filed by the appellant deserves to be decided on merits by the National Commission. Consequently, the appeal is allowed; the impugned order dated 14012023 is set aside and the matter is remanded to the National Commission to decide the revision petition afresh and on merits.
In all fairness, it may be noted that according to learned counsel for Respondent No.1, the said respondent has gone into bankruptcy, and moratorium under Section 14 of the Insolvency & Bankruptcy Code is operating.
All such pleas shall be available to the respondents before the National Commission.
It goes without saying if there is no dispute between the appellant and Respondent Nos. 2 and 3, it would not be necessary for these two respondents to appear and contest the appellant’s claim before the National Commission.
The National Commission shall decide the revision petition within three months from the date of receipt of a copy of this order.”
From a perusal of the above Order dated 20.03.2023, it is evident that the Apex Court had taken notice that Opposite Party No. 1 Reliance Communications Ltd. has gone into bankruptcy, and in view of section 14 of the Insolvency and Bankruptcy Code, the Opposite Party No. 1 herein appears to be under the protection of a moratorium period.
It was also observed that there appears to be no dispute between the other Opposite Parties and the Complainant, therefore, it was not necessary for the Opposite Party No. 2 & 3 to contest the same. Consequently, no Notices were required to be issued any further except the Opposite Party No. 1, who was already represented before the Apex Court.
In the instant case, Notices were sent again to the Opposite Party No. 1 but the same has been received back reporting that no such office exists at the given address.
We would have proceeded directing the Complainant to take further steps but in view of the Order we propose to pass, we do not find it necessary to proceed any further awaiting Notice on the Opposite Party No.1.
What transpires from the facts narrated above, and in view of the submissions made by the Revisionist in person Mr. Prabhakant Shukla that the matter be finally decided as it has been engaging the attention of various forums for a long time, the short dispute is with regard to the contention of the Complainant in respect of certain incorrect / fake bills that were raised in respect of internet charges. There is no dispute as per findings of the District Forum that the bills with regard to other demands had been satisfied by the Complainant except the demand raised in respect of internet charges which was accepted by the District Forum. This was sought to be challenged by the Respondent Reliance Communication in Appeal, that was not decided on merits but was allowed on 03.07.2012 only on the ground of the existence of Arbitration clause under Section 7-B of the Indian Telegraph Act. The adjudication that was made by the District Forum was not adjudicated upon on the grounds of Appeal taken on merits before the State Commission. The same situation prevailed before the National Commission in its Order dated 14.01.2013, and the Apex Court also in the Judgment dated 20.03.2023 did not go into the merits of the matter and set aside the Order of the National Commission for deciding the revision but at the same time made an observation with regard to the status of bankruptcy of Respondent No. 1 and pendency of the proceedings in terms of Insolvency and Bankruptcy Code 2016.
Mr. Prabhakant Shukla, has not been able to provide any such information with regard to the status of the proceedings under the Insolvency and Bankruptcy Code 2016 nor has the Opposite Party No. 1 contested the matter. As such this Commission has no clue about the status of proceedings under the Insolvency & Bankruptcy Code but the fact remains that the claim on merits relating to the correctness or otherwise of the bills was not considered in the Appeal or even thereafter.
The Revisionist had been called upon to file copies of the bills which have been done by the Complainant by bringing on record the proof of payments made by him.
In the aforesaid background when the Opposite Party No. 1 is stated to be under a moratorium in view of section 14 of the Insolvency and Bankruptcy Code, as has been observed by the Apex Court, and in the absence of any such adjudication on the merits of the Appeal before the State Commission, the claim and counter claim with regard to the correctness of the bills cannot be examined before the National Commission directly in a Revision Petition as it is an issue of pure fact. A revision is a limited appeal on some material irregularity. The dispute relating to the factum of the quantum of the claim and the correctness of the claim being dependent on each other, has to be examined by the State Commission on merits in the first appeal and any relief if granted or refused will certainly be impacted upon by any proceedings that are stated to be pending under the Insolvency and Bankruptcy Code, as has been recorded by the Apex Court.
Consequently, it is desirable that the Revision Petition be allowed in terms of the Judgment dated 20.03.2023 passed by the Supreme Court by setting aside the Order of the State Commission dated 03.07.2012, with a request to the State Commission to dispose of the matter expeditiously preferably within three months.
Since the Opposite Party, who is the appellant before the State Commission has not put in appearance in this revision, the State Commission shall issue notice to the appellant as also to the counsel who had prosecuted the appeal before it (probably Mr. Sanjiv Srivastava, Advocate, as it appears from the appearance noted in the Order dated 30.07.2012 passed by the State Commission) or through any other mode that may be necessary.
Revision Petition is accordingly allowed. Order dated 03.07.2012 passed by the State Commission is set aside and the matter is remitted back to the State Commission to decide the first appeal on merits regarding the disputed bills as observed above, preferably within three months from today.
A free copy of this Order may be despatched by the Registry to the Parties by usual mode.