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JAMMU AND KASHMIR HIGH COURT
MR. SANJAY KUMAR GUPTA, J.
SHWETA KUMARSWAMI - Petitioner
Versus
STATE OF J&K & ORS - Respondents
OWP No. 1995 of 2005 & connected MPs
Decided On : 17-11-2017
Advocate Appeared:
For the Petitioner:Mr. R.K. Bhattia, Advocate.
For the Respondents:Mrs. Seema Shekhar, Sr. AAG, Mrs. Surinder Kour, Sr. Advocate with Ms. Vandana Kumari, Advocate.
The main legal point established is that a writ petition is not maintainable when a proper channel for appeals is prescribed under the Consumer Protection Act.
Headnote:
Consumer Protection Act - Writ Petition - Sections 103, 104 of the Constitution of Jammu & Kashmir - The court discussed the provisions of the Consumer Protection Act and the statutory mechanism for appeals, emphasizing that a writ petition is not maintainable when a proper channel for appeals is prescribed under the Act.
Fact of the Case:
The petitioner filed a writ petition seeking to quash orders passed by the State Consumer Protection Commission in an execution petition and a complaint. The petitioner argued that the complaint was time-barred and that the orders were violative of principles of natural justice.
Finding of the Court:
The court found that the petitioner, as the director of the company, was estopped from claiming that the decree had not been passed against her. The court also held that the writ petition against findings of facts was not maintainable and emphasized the three-tier redressal mechanism provided by the Consumer Protection Act.
Issues: The issues involved the time-barred complaint, violation of principles of natural justice, and the maintainability of the writ petition against findings of facts.
Ratio Decidendi: The court emphasized that the Consumer Protection Act offers a three-tier redressal mechanism for resolution of consumer disputes and that a writ petition is not maintainable when a proper channel for appeals is prescribed under the Act.
Final Decision: The writ petition was dismissed as not maintainable.
ORDER :
1. Petitioner has filed present writ petition under Articles 226 and 227 of the Constitution of India read with Sections 103 and 104 of the Constitution of Jammu & Kashmir, for quashing of orders dated 21.12.2004, 31.1.2005 passed by respondent No. 2 in an execution petition titled Dr. D.S. Aulakh v. Smt. Savita Benji, and order dated 26.12.2002 passed in a complaint No. 1928/99 titled Dr. D.S. Aulakh v. Smt. Savita Benji.
2. The case of the petitioner is that M/s. Eagle Dent Equipments Pvt. Ltd. had sold equipments to the tune of Rs. 1,83,796.50 vide its invoice dated 7.7.1995 to M/s. BGM Dental Hospital, Jammu. M/s. BGM Dental Hospital, Jammu had made payment of Rs. 1,03,500 on 3.8.1995 and an amount of Rs. 80,246.50 remained outstanding towards it. Respondent No. 3 filed a complaint before the J&K State Consumer Protection Commission, Jammu on 11.5.1999, alleging therein that the equipments sold by one Savita Benji were of inferior quality, in which Smt. Savita Benji was only impleaded as opposite party. Respondent No. 3 was having no locus standi to file the complaint because the equipments were sold to M/s. BGM Dental Hospital Jammu and not to respondent No. 3. Moreover, respondent No. 3 was not a consumer within the definition of Section 2(d) of the J&K Consumer Protection act, because the goods were purchased for commercial purpose.
3. Respondent No. 2 had passed an ex parte order on 26.12.2002 for making payment of Rs. 1,03,500 with interest @ 9% per annum, Rs. 10,000 as compensation and Rs. 3,000 as cost of litigation in favour of respondent No. 3. The respondent No. 2 passed the said order without giving any direction for return of the costly equipments to the company. The order was passed against Smt. Savita Benji, who is a non-existent person. The petitioner filed objections to the execution petition, stating therein that her full and correct name is Smt. Shweta Kumarswami and she cannot be compelled to make payment when she was not impleaded as opposite party. The respondent No. 2 passed an order for issuance of non-bailable warrants of arrest against the petitioner on 31.1.2005 by observing that there is a resemblance in the name of petitioner and Smt. Savita Benji, as such the petitioner was held liable to make payment, even though she was not a party.
4. The complaint filed by respondent No. 3 was hopelessly time barred as the equipments were sold in 1995, whereas the complaint was filed in the year, 1999. Order dated 31.1.2005 is violative of principles of natural justice, as non-bailable warrants of arrest have been issued against petitioner, even though she was not a party to the complaint.
5. Other side has not filed objections but has argued that this writ petition is not maintainable as order passed by the State Commission is appealable and appeal has to be preferred within one month from the date of order and it has to be heard by a Division Bench.
6. I have considered the contentions of the parties.
7. From the perusal of the facts and circumstances of the case, it appears that deceased Dr. D.S. Aulakh filed a complaint before the J&K State Consumers Protection Commission Jammu stating that he has purchased one set of economy model dental chair with attached dental unit having Halogen light with imported reflector instrument tray, spitton with water system and one No. DCJ Control Box. Besides above he also purchased Pantographic foot operated dental chair with attached unit having Halogen light with imported reflector, instrument tray, spitton with automatic water system. Three way syringe, Air rolor control with air rotor hand piece, micro motor (Saltlee) with straight and contra angle hand piece, noiseless air compressor and Dr’s Stool one set, for Rs. 1,03,500.00 with a warranty of two years. The delivery of the articles and its installation was made on 9.7.1995. The order placed for these articles by the complaint was on 21.1.1995. However, soon the delivery was made within two months of its functi
