Miscellaneous Application No.

In

Appeal No.5 of 2021

:

   916 OF 2021

Date of Institution

:

25.11.2021

Date of Decision

:

31.05.2022

                   Vide this application, the applicant/appellants (ICICI Home Finance Company Ltd.) is seeking restoration of Appeal bearing No.5 of 2021 filed by them before this Commission, which was dismissed in default for want of their appearance vide order dated 24.11.2021. The said order dated 24.11.2021 of this Commission reads thus:-

            “Case taken up through Video Conferencing via Webex.

          In this case, the Appellants are not appearing since 01.03.2021. Record shows that copies of orders dated 30.06.2021 and 23.08.2021 had been delivered to Counsel for Appellants through e-mail on 14.07.2021 and 22.09.2021, respectively. Notwithstanding this, there is no representation on behalf of the Appellants. Even today is the last opportunity. In this view of the matter, it seems that the Appellants are not interested in pursuing the present matter and have abandoned the proceedings. Therefore, we deem it appropriate to dismiss the instant Appeal in default for want of appearance of the Appellants and for want of non-prosecution.  We order accordingly.

          All pending application(s), if any, stands disposed of accordingly.

          Certified copy of this order be sent to the parties free of charge.

          Copy of this order be sent to the parties/Counsel through email/whatsapp.”

2.                The restoration of appeal has been sought on the ground that on verification, it was found that the date was provided as 24.11.2021 but wrongly noted as 25.11.2021 in the diary. Counsel for the applicants/appellants placed reliance on A.A. Haja Muniuddin vs. Indian Railways, 1992 PLRonline 0003 and Asit Kumar Kar Versus State of West Bengal & Ors, Civil Writ Petition No.110 of 2008 decided by Hon’ble Supreme Court of India on 21.01.2009, to contend that his non-appearance was unintentional and bonafide and no benefit is going to arise to the appellant by not appearing in the matter. 

3.                On the other hand, in their reply filed to the application, respondents No.1 & 2/complainants strongly opposed the prayer of the applicants/appellants seeking restoration of the appeal by stating that there is no provision in the Consumer Protection Act, 1986, which empowers this Commission to review or recall its order in absence of any error apparent on face of the record. It has been stated that the present application has been filed without mentioning any provision of law. They have placed reliance on the judgment of Hon’ble Supreme Court in Morgan Stanley Mutual Fund v. Kartick Das, (1994) 4 SCC 225 to contend that the Tribunals can derive powers only from the express provisions in the statute and Section 50 provides the State Commission to review its orders either of its own motion or on an application made by any party within 30 days of such order only if there is an error apparent on the face of the record. It has further been stated that apart from the power to review its order, no specific power has been provided under the Act for recalling an order. Further reliance has been placed on M/s Eureka Estates (P) Ltd. v. A.P. State Consumer Disputes Redressal Commission and Others, AIR 2005 AP 118 wherein the Andhra Pradesh High Court held that the District Forums and the State Commissions are entitled to exercise only such powers which are specifically vested in them under the Act and the Rules. Reliance has also been placed on Jyotsana Arvind Kumar Shah & Others v. Bombay Hospital Trust, (1999) 4 SCC 325, wherein it has been held that there is no provision  in the Act, enabling the State Commission to set aside an exparte order. Further reliance has been placed on Rajeev Hitendra Pathak and Others v. Achyut Kashinath Karekar and another, 2011 (4) RCR (Civil) 175, wherein it has been held that the District Forums and the State Commission have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised. Lastly, reliance has been placed on Smt. Ekta Arora v. Punjab Electricity Board through its Chairman, 2013 (4) R.C.R. (Civil) 589 wherein the Punjab State Consumer Disputes Redressal Commission dismissed Miscellaneous Application No.2189 of 2013 seeking restoration of appeal dismissed in default and granted liberty to the appellant to file revision petition before Hon’ble National Consumer Disputes Redressal Commission, New Delhi. On these grounds, prayer for dismissal of the present application has been made by respondents No.1 & 2/complainants.

4.                We have heard the Counsel for the parties and have gone through the record of the case and cited case laws very carefully.

5.                In our concerted view, this application filed by the applicants/appellants seeking restoration of appeal dismissed in default by this Commission vide order dated 24.11.2021 is liable to be dismissed simply for the reason that the prayer of the applicants/appellants is misconstrued and misapplied inasmuch as Section 50 of Consumer Protection Act, 2019 empowers this Commission to review/recall its order only when there is an error apparent on the face of the record. The said provision reads thus:-

“50. The State Commission shall have the power to review any of the order passed by it if there is an error apparent on the face of the record, either of its own motion or on an application made by any of the parties within thirty days of such order.”

6.                We do not find any error apparent on record so as to review/ recalled the order dated 24.11.2021. Clearly, in the said order, sufficient reasons were given as to why this Commission is dismissing the appeal in default i.e. “Record shows that copies of orders dated 30.06.2021 and 23.08.2021 had been delivered to Counsel for Appellants through e-mail on 14.07.2021 and 22.09.2021, respectively...” Further, similar was the position on 24.11.2021, on which date, again none appeared on behalf of the appellants as a result whereof their appeal was dismissed in default. Thus, in the light of settled law on subject, as cited by respondents No.1 & 2/complainants, referred to above and especially in view of verdict in cases Jyotsana Arvindkumar Shah (supra) and Rajeev Hiendra Pathak and Ors. (supra), this Commission has no power to review or recall its own order, therefore, the prayer of the applicants/appellants for restoration of the appeal dismissed in default for their non appearance, cannot be acceded to being not sustainable in the eyes of law.                 

7.                For the reasons recorded above, this application for restoration of appeal, being not maintainable before this Commission, is dismissed with no order as to costs. However, the applicants/appellants are at liberty to file Revision Petition against the impugned order before Hon’ble National Consumer Disputes Redressal Commission, New Delhi in accordance with law.    

8.                Certified copies of this order be sent to the parties, free of charge.

9.                Copy of order be also sent to the parties/Counsel through email/whatsapp. 

Pronounced.

31.05.2022.                                                                            

         [RAJ SHEKHAR ATTRI]

PRESIDENT

[RAJESH K. ARYA]

MEMBER