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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 13.04.2015 in First Appeal No. A/10/195 of the State Consumer Disputes Redressal Commission, Maharashtra, Circuit Bench at Aurangabad (in short, the ‘State Commission’) dismissing the appeal and upholding order dated 24.06.2005 of the District Consumer Disputes Redressal Forum, Nanded (in short, the ‘District Forum’) in Consumer Complaint no. 175 of 2004.
The brief facts of the case, according to the petitioner, are that he was an Independent Director in Suman Motels Ltd. The respondent had deposited Rs 1,00,000/- with M/s Suman Resorts (India) Ltd in response to a scheme of “Holiday Bonds” which had offered interest @18% p.a. with effect from 27.06.2004 and dividend thereon. It is submitted that Suman Resorts (India) Ltd. went into liquidation in 2003 and an Official Liquidator was appointed on 28.03.2009. Respondent no. 1/complainant had filed Complaint No. 175/2004 under section 12 of the Act for recovery of money against Suman Motels Ltd. and Suman Resorts (India) Ltd. The District Forum passed ex parte orders against the revision petitioner directing repayment with interest and cost. As this order was followed by a warrant of arrest against the revision petitioner, he deposited the decreed amount with the District Forum even though he had not been a party to the proceedings before the District Forum. His plea not to release the amount till disposal of the matter was not adjudicated and the money released to the respondent/complainant. The revision petitioner states that his appeal A/10/195 before the State Commission was declared infructuous. It is contended that Suman Motels Ltd. and Suman Resorts (India) Ltd. are independent entities and the State Commission erred in concluding that Suman Motels Ltd. was a subsidiary of Suman Resorts (India) Ltd. It is averred that the proceedings were erroneously dismissed on the ground of limitation by the State Commission.
The petitioner’s case is that the lower fora erred in fastening liability of a company under liquidation (Suman Resorts (India) Ltd.) on to another company Suman Motels Ltd. and concurrently fastened on a person who is an Independent Director of this Company.
The District Forum’s order held as under:
In this petition the complainant has filed receipt issued by Suman Motels Ltd. as well as filed Smart Card. It is issued by Suman Motels Ltd. on dated 29.06.2002 is at Exh. 3/1 part I and also filed membership card issued by Suman Motels on 29.06.2002 and is recorded at Exh. 3/9 part 1. On perusal of both these documents, it makes very clear to us, the respondent no. 1 & 2 have received Rs 1,00,000/- from the complainant and after receipt of this amount the respondent has issued membership card bearing No. SRI/HB/0199/6387. As per this card the complainant was entitled for Rs 22,000 as Suman Cash Vouchers for every year, free stay vouchers for 7 family members along with 2 rooms for every year up to 5 years and non-profit vouchers up to 5 years. As per the contents made by the complainant at Exh. 6 part 1 i.e. his affidavit he has not provided any facility from the respondent as well as dividend as agreed therefore he has requested the respondent for refund of the amount deposited after completion of 2 years by telephone as well as in writing. He has also issued a legal notice on 19/10/2004 and also on 8/11/2004 but no response from the side of the respondent. These legal notices as well as acknowledgement receipts are on record. Considering these facts, evidence led by the complainant as well as documents on record we hold that the respondent No. 1 & 2 are responsible for deficiency in service. Therefore, we are in the opinion that the complainant is entitled for getting an amount of Rs 1,00,000/- along with interest @ 18% per annum from the respondent No. 1 & 2 as well as Rs 1,000/- towards cost of the litigation. Therefore, we pass the following order:
ORDER
The complaint is allowed.
The respondent No. 1 & 2 shall pay jointly and severally amount of Rs 1,00,000/- (Rs one lakh only) to the complainant within 30 days from this order and interest thereon @ 18% pa from 08.12.2004 i.e. date of complaint till its realisation and Rs 1,000/- (Rs one thousand only) towards cost of the litigation.
The State Commission, upholding this order, recorded as under:
We have thoughtfully considered the oral submissions meet by the learned council for both sides and also delay condonation application as well as other relevant documents. From the perusal of judgement dated 08.11.2011 passed by this Commission, it is revealed that in the said appeal though the present appellant was not a party, he had filed his VP on behalf of applicant No. 2 i.e. Suman Resort (I) Ltd. It can therefore be concluded that the present appellant is the contesting party in both the appeals i.e. the appeal No. 658/2009 and the present appeal No. 195/2010. Hence as contended by learned counsel Shri Bagadiya for the respondent No.1/org. complainant that since the earlier appeal No. 658/2009 is already dismissed, the present appeal is not maintainable. It is also interesting to note that the appellant in appeal No. 658/2009 as represented by the present appellant had also filed separate MA bearing No. 1002/2009 for condonation of delay in which delay was shown as 1567 days. It can therefore be concluded that, the present applicant in the capacity of Ex-Director of appellant No. 2 in appeal No. 658/ 2009 has knowledge of their impugned order dated 24.06.2005 prior to his arrest. The question is therefore when the present applicant/appellant i.e. Sri Surendra Khandar who represented appellant No. 2 in appeal number 658/2005 filed delay condonation application for 1567 days, how he has claimed the delay of only 9 days in the present MA No. 258/2010 in appeal No. 195/2010 wherein same impugned order dated 24.06.2005 is challenged. Therefore the contention of the applicant that he got the knowledge of the impugned order dated 24.06.2005 only after he received warrant of arrest on 19.06.2009 cannot be sustained and hence not accepted.
In view of the aforesaid observations therefore the delay condonation application deserves to be dismissed and consequently the appeal also has to be dismissed.
As regards the other prayer for setting aside the order dated 07.10.2009 which allowed the respondent/complainant to withdraw the said amount, this Commission by its order dated 16.04.2013 has declared as infructuous as the same amount is already withdrawn by the respondent No. 1 and secondly, the order dated 07.102.009 has also not been produced by the appellant, nor the said order is challenged. From the perusal of the complaint filed by the present respondent No.1, “Suman Motels” is the subsidiary company of Suman Resort (I) Ltd, for which the present appellant had appeared in appeal No. 658/2009. It can be said that, the present appellant i.e. Surendra Khandar is the main person dealing with both the companies. He can therefore be treated as liable to comply with the impugned order dated 24.06.2005 as passed by the District Forum.
However, as held by this Commission in its order dated 08.11.2011 passed in appeal No. 658/2009, Suman Resort (P) Ltd has gone under liquidation by notification dated 28.03.2007 of the Registrar (O.S.) Prothonotary and Senior Master, High Court of Judicature at Bombay, OOCJ in Company Petition No. 758/2003. Therefore it is the liquidator and none else who is authorised to file appeal. The order dated 08.11.2011 does not appear to have been challenged. Hence in view of the aforesaid views also the present appeal is not tenable
Thus, taking into consideration the aforesaid facts and observations about the delay in filing of the appeal which is 1567 days we pass the following order:
ORDER
The delay condonation application is dismissed.
Consequently, the appeal stands dismissed.
No order as to cost.
I have heard the learned counsel for the petitioner. The respondent remained absent and unrepresented even after being noticed and being provided a final opportunity to be present and argue his case. He was accordingly placed ex parte and the matter heard. I have perused the documents on record carefully and also given thoughtful consideration to the short synopsis of arguments filed by the petitioner.
The petitioner argued that the respondent was not a ‘consumer’ under the definition of the Act having invested the money as an investor for returns and that the order of the District Forum was passed ex parte against him, thereby denying him an opportunity in the matter. It is also contended that in view of an official liquidator having been appointed in the matter of Suman Resort (India) Ltd., the order against him as an Independent Director was erroneous. The impugned order of the State Commission is challenged on the ground that Suman Motels was not a subsidiary of Suman Resort (India) Ltd. which had accepted the deposit and in which the revisionist was an Independent Director. It is contended that there has been no deficiency in service as held by the District Forum warranting any compensation to the respondent.
Admittedly, a deposit of Rs 1,00,000/- was made by the respondent with Suman Resorts (India) Ltd. Certain services were offered in lieu of this deposit on an annual basis as per the membership card issued. The receipt has been noted by the District Forum to have been issued on behalf of both Suman Resorts (India) Ltd as well as Suman Motels. State Commission has noted that the petitioner had contested two matters before it and that it was evident that he was well aware of the issues prior to the warrant of arrest against him being issued. The petitioner was proceeded ex parte before the District Forum since he remained unrepresented before it despite service of notice whereas the State Commission’s order is on contest and after consideration of his contentions. Both the lower fora have issued reasoned and speaking orders based on pleadings and concluded concurrently on facts.
From the records 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. The concurrent findings on facts of these two foras are based on evidences 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 vs United India Insurance Company (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.”
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. 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.
In view of the foregoing, I find no illegality or infirmity or perversity in the impugned order warranting any interference of this Commission. The present revision petition is, therefore, found to be without merits and is accordingly dismissed.