ORDER OF THE STATE CONSUMER COMMISSION IS INCAPABLE OF BEING QUESTIONED IN HIGH COURT under Art. 226
In the case Gurjeet Singh Johar and Anr Versus Union of India and Ors, Advocate Navkiran Singh appeared for Respondents No.4 to 55 and 58 to 68, in which the Punjab and Haryana High Court imposed cost for filing writ against the order of the State Consumer Commission instead of Approaching NCDRC.
Mr. Navkiran Singh was representing the Victims in the matter. The petitioners in this case had mislead the Hon'ble court into believing that orders passed by the National Commission under section 27 of the Act are capable of being questioned under the High Court's Writ Jurisdiction under Article 226 of the Constitution, vide which the Hon'ble Court had granted interim protection to the petitioners.
Mr. Navkiran Singh vehemently argued that the proceedings under Section 27 of the CP Act are independent (Criminal) Proceeding and the Hon'ble Court does not have the jurisdiction to entertain the present Writ Petition as an alternative remedy of appeal is also available before the NCDRC. Further, Mr. Navkiran Singh apprised the Hon'ble Punjab and Haryana High Court of the correct position in law and submitting before the bench that the orders passed by the National Commission under Section 27 of the Act are incapable of being questioned in the writ jurisdiction of the High Court under Article 226 of the Constitution in view of the previous precedents of the coordinate bench(Pranab Ansal v. State Consumer Dispute Redressal Comission) and of the Hon'ble Supreme Court of India(Cicily Kallarackal vs. Vehicle Factory).
It was further submitted in the written Statements filed by Mr. Navkiran Singh that Section 14 of the IBC Act, specifically mentions all the acts not be executed by the Court/Tribunals. As per Oxford Dictionary, a Moratorium means a Legal authorization to debtors to postpone payment. As per moratorium in terms of IBC means a period wherein no judicial proceedings for recovery, enforcement of security interest, sale or transfer or assets, or termination of essential contracts can be instituted or continued against the Corporate Debtor. Further Section 238 of the IBC provides that provisions of Code shall prevail over any other law in force in the event of inconsistency. Inconsistency would mean mutual repugnancy when acceptance of one would imply abrogation of the other. Section 3 of the Consumer Protection Act, 1986(now Section 100 of the Consumer Protection Act,2019) provides that the provisions of the Act are in addition and not in derogation of any other law. Therefore, there exists no repugnancy or inconsistency between the two statues. Moreover, the pendency of disputes before Consumer court does not bar to initiation of the Corporate Insolvency Resolution Process, which are independent proceedings and has nothing to do with the criminal proceedings under Section 27 of the CP Act, 1986. Mr. Navkiran Singh further submitted that the present CWP be dismissed being meritless.
The Hon'ble Bench stated that one of the biggest evils faced by the Judiciary is 'forum shopping', and in the considered view of the Court observed that this is a classical case. The bench being satisfy with the arguments of Mr. Navkiran Singh opined to disposal of the matter with the finding that NCDRC is competent to examine and decide holistically the plea sought to be taken in the writ petition.
The bench observed that the State Commission has powers to proceed under Section 27, if the orders passed in the complaint have not been complied with and in view of the statutory remedy of appeal(under the Consumer Protection Act), it will not be appropriate for the High Court to entertain a writ petition. The bench further observed that the appropriate remedy against an order under Section 27 of the Act would be to approach the National Commission under Section 27A. The bench disposed of the matter by relegating the petitioners to the alternative remedy available before NCDRC. The petitioners in the petition were fined a cost of Rs.2 lakh with a view to desist such attempts. The costs were directed to be deposited in the 'Poor Patients Welfare Fund' of the Post-graduate Instituted of Medical Education and Research (PGIMER), Chandigarh.
That it would be pertinent to cover some of the other relevant judgements and the position of the Law in this blog. A Writ Petition under Article 226/227 of the Constitution of India would not be maintainable in view of the ratio laid down by the Hon'ble Supreme Court in the case titled as "Cicily Kallarackal vs. Vehicle Factory" reported as (2012) 8 Supreme Court Cases 524. That even the Hon'ble High Court of Punjab and Haryana in the case titled "Pranav Ansal" and "State of Consumer Disputes Redressal Commission, Punjab and others" has followed the ratio laid down in "Cicily Kallarackal vs. Vehicle Factory". The Hon'ble High Court held that the Supreme Court is of the view that an order passed by the National Commission under Section 27 of the Act is incapable of being questioned in the writ jurisdiction of the High Court under Article 226 of the Constitution of India as a statutory appeal in terms of Section 27-A(1)(c) lies before the Supreme Court and that it would not be a proper exercise of jurisdiction by the High Court to entertain writ petitions directed against the orders of the National Commission; hence, the same analogy would apply against orders of the State Commission, which are appealable before the National Commission. Following the dictum of Cicily Kallarackal's case(Supra); it would not be proper for the High Court to exercise the jurisdiction under Article 226 of the Constitution of India to entertain any petition vide which the individuals might be challenging the Execution proceedings under Section 27of the Consumer Protection Act, especially when there is a provision of a Statutory Appeal before the National Commission, under the Consumer Protection Act.
Therefore, it would not be wrong to suggest that the declaration of the Moratorium in terms of Section 14 of the IBC would not come in the way of the State Commission continuing with the proceedings u/s 27 of the Consumer Protection Act which are criminal in nature and the orders passed by the National Commission under Section 27 of the Act is incapable of being questioned in the writ jurisdiction of the Hight Court under Article 226 of the Constitution. The appropriate statutory remedy against an order under Section 27 of the Act would be to approach the National Commission under Section 27A. That orders under Section 27 are appealable hence the Hight Court would lack jurisdiction to entertain such a petition as an alternative remedy being available before NCDRC.