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Judgment
Subramani, J.—Material facts which arise for consideration in this Civil Revision Petition may be summarised as follows:-
Petitioners herein are Divisional Manager and Branch Manager of a Nationalised Bank, namely, Canara Bank. 1st respondent availed a financial
facility from the said Bank and the same was guaranteed by second respondent. It is seen that there was correspondence between the petitioners
and respondents regarding rate of interest. It is the case of the respondents that the Bank agreed for reduction in rate of interest and that was
assured by the then Branch Manager. The said allegation was disputed by the petitioners. At any rate, the Bank itself offered some concession,
i.e., a reduction of Rs. 7,000 in interest provided the entire balance was paid in a lump within a particular time. When the matter was not settled
petitioner field O.S.No. 32 of 1992, on the file of Additional District Judge''s Court. Pondicherry, for recovery of money by sale of the mortgaged
properties.
While the matter was pending before the Civil Court, respondents herein filed an application before the Consumer Redressal Forum, alleging
that there is deficiency in service, and the rate of interest claimed is excessive. The Consumer Redressal Forum directed that the petitioners herein
will be entitled to realise only the balance amount after giving credit to Rs. 7,000 which the Bank promised to give as a reduction. In that
proceeding before the Consumer Redressal Forum, petitioners herein challenged the jurisdiction of the Forum and also contended that there is no
deficiency in service. But there was no finding regarding the same. Inspite of it, an Award was passed.
Respondents herein filed a written statement in the suit contending that they have already obtained an Award in the Consumer Redressal Forum,
which entitles them to get a reduction of Rs. 7,000. When such a written statement was filed, petitioners herein contended that the Award of the
Consumer Forum is without jurisdiction and there was no deficiency in service. When a civil suit was pending, the Consumer Redressal Forum
should not have entertained the matter. In the Civil Court, an issue was raised: ""Whether the finding of the Consumer Redressal Forum,
Pondicherry, in Case No. 138 of 1992 dated 21.12.1992 is binding on the Civil Court?
A very detailed finding was entered by the Civil Court holding that the Award of the Consumer Redressal Forum is without jurisdiction, and the
plaintiff is also not bound by it. It further found that there is no finding by the Consumer Redressal Forum that there is any deficiency in service
which alone gives jurisdiction to that Authority. It further found that the so-called claim of adjustment in interest was in the nature of a concession
on certain conditions. Since the respondents herein did not comply with the conditions, it is their own fault and the Bank is entitled to realise other
entire interest due on their account. It was further found that the Bank is entitled to contract rate of interest and granting a concession is purely a
discretion of the Bank, and the Consumer Redressal Forum should not have interfered in such case. The finding was that the Award of the Tribunal
was binding neither on the Civil Court nor the plaintiff. That judgment was pronounced on 30-9-1996, and that judgment has become final.
When proceeding were initiated for recovery of the amount pursuant to the decree of the Civil Court, respondents herein filed an application
before the Consumer Redressal Forum, to execute the Award passed by it, as C.No. 138 of 1992 in E.P. No. 28 of 1996. On receipt of the
Execution petition, notice was issued to the petitioner herein by the Consumer Redressal Forum, directing it to satisfy the order and report the
same, failing which action will be taken for disobedience of the Order. The Execution Petition was posted to 25.11.1996 for report. Petitioner
herein filed Objections to the Execution Petition and contended that the Award of the Consumer Redressal Forum is now superseded by the Civil
Court decree, and since the same has become final, it cannot be executed. The question of jurisdiction was again raised in the Objection. The
Objection is pending consideration by the Consumer Redressal Forum. In the meanwhile, apprehending that further proceedings will be taken
pursuant to the notice in the execution Petition, this Civil Revision Petition has been filed u/s 227 of the Constitution of India, to quash the Notice
and also to prohibit the respondents herein from executing the Award.
Learned counsel for the petitioners contended that the Award of the Consumer Redressal Forum was one without jurisdiction, and even if it be
considered as one with jurisdiction, the same has been superseded by Civil Court decree. Respondents herein are bound to inform that Court
about the Civil Court decree which is binding on both the parties, and they have failed to do so. According to the petitioners, it is really a
suppression of fact. If only the finding of the Civil Court had been brought to the notice of the Forum, it would not have issued notice in the
Execution Petition. Therefore, it is really a fraud on the part of the respondents, perpetrated to obtain an unfair advantage. It was contended by
learned counsel that even though there was an Award against the petitioners, if that Award was without jurisdiction, which goes to the root of the
matter, the same could be agitated before the executing Court, and even in a collateral proceedings. In this case, in a suit between the same parties,
the validity of the Award has already been considered and found in favour of the petitioners. When there is a finding by the Civil Court that the
Award is without jurisdiction, the same could not be executed thereafter.
Learned counsel for the respondents, on the other hand, contended that the question of jurisdiction is also a matter which could be considered
by the Forum, and once it has passed an Award, it implies that it has jurisdiction. The Award has now become final and the same is not challenged
in any of the Forums as provided under the Consumer Protection Act. He further contended that the remedy under Article 227 of the Constitution
should not be invoked when the petitioners themselves have filed an Objection before the executing Court and the same is pending consideration
by the court. They should have awaited the outcome of the adjudication, and the present proceeding is really prematured.
After having considered the rival submissions, I feel that this is a case where the consumer Redressal forum should have issued notice to the
petitioners in the Execution Petition filed by the respondents herein, seeking to execute the Award of the Forum. In fact, the respondents are
barred from claiming any right under the Award in view of the subsequent Civil Court decree.
Before going into the rival contentions, let us consider what is the Scheme of the Act. The same came for consideration in a recent decision of
the Supreme Court reported in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, of the judgment their Lordships considered the powers of
the District Forum, and how far they could be challenged. Their Lordships said that the Orders of the District Forum, State Commission and
National Commission are final as declared in Section 24 of the Consumer Protection Act, 1986, and cannot be questioned in a Civil Court. The
issues decided by the said Authorities under that Act cannot be reagitated in a Civil Court. The forums/Commission under the act have jurisdiction
to determine whether the complainant before them is a consumer and whether he has made out grounds for granting a relief. Even if the
Forum/Commission decides the said questions wrongly, their orders made following the procedure prescribed in sub-sections (1) and (2) of
Section 13 cannot be questioned in a Civil Court-Except of course, in situations pointed out in Dhulabhai and Others Vs. The State of Madhya
Pradesh and Another, . They can and must be questioned only in the manner provided by the Act.
Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, referred to by their Lordships, was considered in Dhulabhai and Others
Vs. The State of Madhya Pradesh and Another, . Their Lordships considered the scope of Section 9 of the Code of Civil Procedure, and how far
the exclusion of the jurisdiction of the Civil Court is to be interpreted. The following principles were enunciated by their Lordships:-
(1) Where the statute gives a finality to the orders of the Special Tribunals the Civil Courts'' Jurisdiction must be held to be excluded if there is
adequate remedy to do what the civil court would normally do in a suit. Such provision, however, does not exclude those cases where the
provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of
judicial procedure.
(2) Where there in an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the
sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express
exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the
enquiry may be decisive. In the latter case, it is necessary to see if the Statute ceated a special right or a liability and provides for the determination
of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted,
and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High
Court cannot go into that question on a revision or reference from the decision of the Tribunals.
(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of
certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy
to replace a suit.
(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.
(6) Question of the correctness of the assessment apart from its constitutionality are for the decision of the Authorities and a civil suit does not lie if
the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the
particular Act must be examined because it is relevant enquiry.
In this case, it cannot be disputed that the Civil Court has jurisdiction to deal with the question as to whether the defendant is entitled to any
waiver of interest. The only contention is, because there is a decision by the Forum, the same could not be questioned in a Civil Court. In the
decision of the Supreme Court, an Award of the forum could not be questioned except in the manner provided under the Act. But if it is a case
where the statutory provision had not been complied with, it could be challenged in a Civil Court. It is clear, the finding of the Civil Court requires
consideration. The finding is that the Consumer Redressal forum has not even entered a finding that there was deficiency in service. Only if there is
deficiency in service, the Forum gets jurisdiction to decide the dispute. Further, the discussion of the civil Court further shows that it was only a
concession given to the respondents herein which they could avail on fulfilling certain conditions. They failed to fulfil those conditions when the
respondents themselves are at fault, it cannot be said that the Bank is not entitled to recover the entire amount as per the contract. The Civil Court
has also found that the Forum has not entered a finding regarding deficiency only for the reason that the fault was only on the part of the
respondents in having failed to avail the concession given to them. In this connection, it may also be noted that when the suit was filed before the
Civil Court, it had jurisdiction to decide the question whether the defendants are entitled to waiver of interest or any reduction in the rate of interest
or quantum. That jurisdiction cannot he taken away by filing another application before the Consumer Forum. The very approach before the
Consumer Forum when the manner was pending before Civil Court can only be subject to the result of the civil proceeding. The Consumer
Redressal Forum does not oust the jurisdiction of the Civil court in any manner. It is only an additional remedy provided by the Statute.
Even if the decision of the Forum could not be questioned in a Civil Court, if the Civil Court had already seized of the matter, and has entered
a finding that the Bank is entitled to realise the interest as claimed by it, that binds the parties. The decision of the Civil Court cannot be given a go
by, nor can it be ignored by the Consumer Redressal forum. When a matter is seized by a Civil Court, a party to it cannot bypass the Court and
seek a relief in another forum, and such an attitude on the party cannot be encouraged or supported. The Forum has to await the decision of the
Civil Court, and, even if the Forum enters a finding, that can be considered only as a tentative decision, subject to the final decision of the Civil
Court.
Once it is found that the Civil Court has jurisdiction to decide the matter, then what is the effect of the decision of the Forum. I have already
said that the same has to yield to the final decision of the Civil Court. Even otherwise, the Civil Court''s decision was the later decision and an issue
was revised before the same parties as to whether the defendant is entitled to any waiver, and what is the legal effect of the decision of the
consumer Forum. Before the Civil Court, the defendant did not urge that suit has no jurisdiction to decide the issue nor was the contention of res
judicata raised before it. Defendants also participated in the proceeding and obtained a finding that the decision of the Forum is not binding on the
plaintiff and the Civil Court. In fact, there is also a finding that the Forum did not have jurisdiction to decide the issue. It also held that the rate of
interest claimed by the plaintiff is correct, and the Bank is entitled to realise the full amount claimed by it. In effect, the later decision of the Civil
Court is inconsistent with the Award. In this case also, the law is well-settled that the later decision alone will prevail.
Even though Section 11 of the CPC may not apply, in this case since the formal decision is one rendered by a Quasi Judicial Tribunal and the
latter decision is that of a Civil court, the General Principles of res judicata have to be made applicable. In the case of conflicting decrees
commending on Section 11, C.P.C. in Mulla on the Code of Civil Procedure."" Fifteenth Edition (1995), at page 201, the learned Author has said
thus:-
Where there are two or more conflicting decrees, the last decree alone is the effective decree, and it this decree and not any other which can
operate as res judicata.
A Court has jurisdiction to decide wrong as well as right and the later decision therefore though erroneous must be held to prevail
In K. Daniel Nadar and Others Vs. R. Ananthan Pillai and Others, a learned Judge of this Court also accepted the said principle, and in
paragraph 18 of the Judgment, it was held thus;-
Another decision in which this question was considered is the one in Damodar Rao v. Bhima Rao and Anr. In that case the earlier decision was of
the High Court, and the later decision was of a District Munsif''s Court which became final. Tukol. J. has observed in his judgment in terms.
So the position at the date of commencement of the present suit was that there were two decrees recording conflicting decisions on the question of
status of a Hindu family. In such a situation where both the decrees satisfy the requirements of Section 11 of the Civil Procedure Code, it is the
later decree that prevails over the earlier for the purpose of decreeing the question of res judicata. The fact that the earlier decision was of the High
Court, is not material since the principle of res judicata is not dependent upon the status or the grade of the two Courts which have rendered the
decisions but upon the finality of the decision and its binding character on the parties concerned.
Therefore though the subsequent decision Exhibit B-17 was of a superior court, namely of the Sub-Court and the latest decision was of the District
Munisif''s Court, the latest decision in which the question regarding the status of defendants 1 and 2 and Raman Pillai was expressly considered
would prevail and constitute res judicata. Therefore, I agree with Mr. Padmanabhan; and hold that on the date of the sale under Exhibit A-2 by
Raman Pillai in favour of Daniel Nadar, there was no Thavazhi of defendants 1 and 2 and Raman Pillai was not the Karnavan of the thavazhi and
he was therefore entitled to deal with his share in the properties without reference to the defendants 1 and 2.
Similar view has been taken by a Division Bench of the Calcutta High Court in the decision reported in Mathura Prosad Rajgharia and Others
Vs. State of West Bengal and Another, . In that decision, it was held thus:-
Where the land acquisition tribunal disposed of the question of apportionment of the enhanced amount of compensation on basis of compromise
between the lessee and lessor, and the High Court, thereafter, in appeal in respect of the valuation of the land held that the lessees were disentitled
from claiming as such the enhanced amount of lessee''s interest inview of their acceptance of collector''s offer, the judgment of High Court being
latter in point of time would prevail and would operate as res judicata between the parties in al subsequent proceedings."" (Emphases supplied)
In M. Kunhirama Kurup and Others Vs. Mayyarath Krishnan Kurup and Others, . it was held thus:-
The principle of res judicata is only a mode of estoppel to prevent a party bound by an earlier decision of a competent court from raising the same
contentions in subsequent proceedings. Section 11 of the Civil P.C. does not operate as a bar in entertaining and deciding a suit simply because of
an earlier decision by a competent court. If a party to whom a plea u/s 11 is available does not care to raise such a plea, it will be the duty of the
court to decide the question brought before it for decision. The court may have no other course but to decide the matter on the merits. If a decision
is suffered without raising the plea of res judicata, it is not open to the defaulting party to challenge the decision in other proceedings as one passed
without jurisdiction. As already stated jurisdiction of the court to decide a question will not be taken away by the provisions of Section 11. The
contention regarding res judicata also could be the subject of constructive res judicata. Parties may not be always vigilant. If a party fails to raise
such a plea and suffers an adverse decision, he will be precluded by the rule of constructive res judicata and he will be bound to suffer the decision
on account of waiver of the right which is lost to him. The rule of res judicata is not limited to the trial court alone. It applies to the appellant and
second appellate courts and miscellaneous proceedings also. In such a situation, when there are two conflicting decisions inter parties on the same
subject matter, applying the bar of constructive res judicata the last one in point of time must prevail between the parties and the first one which is
superseded by the other must be regarded as dead. (Emphases supplied)
In a recent decision of the Supreme court reported in Allahabad Development Authority Vs. Nasiruzzaman and Others, of the judgment, it was
held that ''When the previous decision was found to be erroneous on its face, this Court held in the above judgment that it does not operate as res
judicata. Their Lordships were relying on the decision reported in Municipal Committee, Amritsar and Others Vs. State of Punjab and Others,
wherein it was held thus:-
The order made by the High Court in Mohinder Singh Sawhney case, striking down the Act was passed on the assumption that the validity of the
Act was liable to be adjudged by the test of due process of law."" The Court was plainly in error in so assuming, we are also unable to hold that the
previous decision operates as res judicata even in favour of the petitioners in whose petitions an order was made by the High Court in the first
group of petitions. The effect of that decision was only that the Act was in law, non-existent, so long as there was no definition of the expression
''cattle-fair'' in the Act. That defect has been remedied by the Punjab Act 18 of 1968.
We may hasten to observe that we are unable to agree that the Act as originally enacted was unenforceable even on the ground of vagueness.
The said principle can be applied in this case also and therefore, the later decisions has to prevail.
Having found that the decision of the Civil Court is binding on the parties, and the same has become final, the Award of the consumer Forum is
deemed to have been superseded. There is no executable decree or order by the Forum.
The respondents herein were duty-bound to inform the consumer Forum about the decision of the Civil Court. If only the judgment and decree
of the Civil Court had been filed before the Consumer Forum, it might not have issued the notice of execution and sought for explanation of the
Bank. Only because the relevant piece of evidence was suppressed by the respondents, the Forum issued notice to the Bank. To gain unfair
advantage, the respondents did not inform the Forum about the conclusive decision. It is really a fraud on their part, committed with an intent to
defeat the right of the decree-holder.
In a landmark judgment of the Supreme Court reported in S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and
others, , their Lordships held that the non-disclosure of a document in Court and getting a decree on that basis, amounts to a fraud, and the entire
proceedings are vitiated. In that case, their Lordships held thus:-
The principle of ""finality of litigation"" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dis
honest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands.
A person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. A
judgment or decree obtained by playing fraud on the Court is a nullity and honest in the eyes of law. Such a judgment/decree by the first court or
by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral
proceedings.
A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to
gain by another''s loss. It is a cheating intended to get an advantage. A litigant who approaches the court is bound to produce all the documents
executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be
guilty of playing fraud on the court as well as on the opposite party.
In this case the respondent, on his own volition, executed the registered release deed in favour of C. He knew that the appellants had paid the total
decretal amount to his master c. With our disclosing all these facts, he filed the suit for the partition of the property on the ground that he had
purchased the property on his own behaif and not on behalf of C. Non-production and even non-mentioning of the release deed at the trial is
tantamount to playing fraud on the Court. Therefore, the judgment of the High Court is set aside and that of the trial court is restored. The
appellants shall be entitled to costs quantified at Rs. 11,000"".
Once the fraud vitiates the entire proceedings, it follows that the respondent will not be entitled to any relief on the basis of the Award passed
by the Forum. The fact that the Award has been superseded by a civil Court decree was not brought to its notice. Without knowing about it, the
Tribunal has also issued notice asking the petitioners herein to satisfy the Order and report the matter to the Forum. I hold that the respondents
herein are not entitled to file Execution Petition on the basis of the Award, which is no longer in force.
Learned counsel for the respondents submitted that this question is already pending before that Forum, and the party must be given an
opportunity to get an Order from that Forum itself, and the petitioners can very well agitate the matter and get the statutory remedy under the Act.
A person who has committed fraud and has also suppressed material documents from Court, is not entitled to be heard in that way. If he has
no cause of action to . execute the Order, since that Order itself has now become inexecutable, petitioners a Nationalised Bank, dealing with
public money, should not be directed to move one Court after the other, to have the grievance redressed. I have already held that the very initiation
of the proceedings before the consumer Forum by respondents herein was not correct.
The act on the part of the respondents really amounted to abuse of process of Court, and they also gained an advantage by getting an Award.
Even after the Award has been superseded, the respondents want to continue the same proceedings. The same cannot be encouraged.
In the result, I hold that the respondents herein are not entitled to execute the Award of the Consumer Forum in Case No. 138 of 1992 dated
28-12-1992, and the execution Petition in Case No. 138 of 1992 (E.P. 28 Of 1996) is really an abuse of process of Court. The Civil Revision
Petition is allowed. The respondents herein are prohibited from executing the Award permanently, and the Execution Petition filed by them is also
struck of the file. The petitioner-Bank is entitled to their costs in this proceeding. C.M.P. No. 475 of 1997 for stay is dismissed.