M/S UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD. versus SURESH CHAND JAIN & ANR.

M/S UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD.

SURESH CHAND JAIN & ANR.

(Special Leave Petition (Civil) No. 5263 of 2023)

JULY 26, 2023

[J. B. PARDIWALA AND MANOJ MISRA, JJ.]

Constitution of India:

Art. 136 – Special Leave to appeal – Order passed by theNational Consumer Disputes Redressal Commission-NCDRC inexercise of its appellate jurisdiction u/s.58(1)(a)(iii) – Petitionseeking special leave to appeal u/Art. 136 – Entertainability of,when remedies available by way of writ petition u/Arts. 226 and227 before the High Court – Held: Remedy of appeal to this Courtis available only with respect to the orders passed by the NCDRC inexercise of its powers conferred by s. 21(a)(i) of the 1986 Act ands. 58(1)(a)(i) or s. 58(1)(a)(ii) of the 2019 Act – Both the Acts providefor the remedy of appeal to this Court only with respect to the orderswhich are passed by the NCDRC in its original jurisdiction or asthe court of first instance (original orders) and no further appeallies against the orders which are passed by the NCDRC in exerciseof its appellate or revisional jurisdiction – Thus, the petition shouldnot be adjudicate on merits – Petitioner to avail remedy either u/Art.226 or u/Art. 227 before the High Court – Consumer ProtectionAct, 1986 – ss. 17, 19 – Consumer Protection Act, 2019.

Art. 136 – Special leave to appeal under – Scope and grantof – Discussed.

Disposing of the petition, the Court

HELD: 1.1 plain reading of the provisions of theConsumer Protection Act, 1986 and the Consumer ProtectionAct, 2019, respectively would indicate that the remedy of appealto this Court is available only with respect to the orders passedby the National Consumer Disputes Redressal Commission-NCDRC in exercise of its powers conferred by Section 21(a)(i)of the Act 1986 and 58(1)(a)(i) or 58(1)(a)(ii) of the Act 2019. Inother words, both the Acts provide for the remedy of appeal tothis Court only with respect to the orders which are passed bythe NCDRC in its original jurisdiction or as the court of first

Ainstance (original orders) and no further appeal lies against theorders which are passed by the NCDRC in exercise of its appellateor revisional jurisdiction. [Para 17][1162-D-F]

1.2 In the instant case, the appeal before the NCDRC wasagainst the order passed by the State Consumer DisputesBRedressal Commission under Section 17(1)(a)(i) of the Act 1986.Such appeal to the NCDRC was maintainable, as provided underSection 21(a)(ii) of the Act 1986. As per Section 23 of the Act1986, any person, aggrieved by an order made by the NCDRC inexercise of its powers conferred by Section 21(a)(i), may preferan appeal against such order to this Court. Therefore, an appealCagainst the order passed by the NCDRC to this Court would bemaintainable only in case the order is passed by the NCDRC inexercise of its powers conferred under Section 21(a)(i) of the Act1986. No further appeal to this Court is provided against theorder passed by the NCDRC in exercise of its powers conferredDunder Section 21(a)(ii) of the Act 1986. There is no provision forfiling any further appeal against the order passed on the appealfiled against the order of the SCDRC. In such circumstances, thepetitioner has come before this Court under Article 136 of theConstitution. [Para 18][1162-F-H; 1163-A]1.3 The jurisdiction of the Supreme Court to grant specialEleave to appeal can be invoked in very exceptional circumstances.The question of law of general public importance or decisionwhich shocks the conscience of the Court are some of the primerequisites for the grant of special leave. The provisions of Article136 of the Constitution as such are not circumscribed by anyFlimitation. But when the party aggrieved has alternative remedyto go before the High Court, invoking its writ jurisdiction orsupervisory jurisdiction as the case may be, this Court shouldnot entertain petition seeking special leave thereby short-circuitthe legal procedure prescribed. The limitation, whatever, theybe are implicit in the nature and character of the power itself. ItGbeing an exceptional and overriding power, naturally it has to beexercised sparingly and with caution and only in very exceptionalsituations. The power will only be used to advance the cause ofjustice and its exercise will be governed by well-established

principles which govern the exercise of overriding constitutionalpowers. [Para 24][1165-F-H]

1.4 In view of the aforesaid, this petition should not beadjudicated on merits. The petitioner must be asked to first gobefore the jurisdictional High Court either by way of writapplication under Article 226 of the Constitution or by invokingthe supervisory jurisdiction of the jurisdictional High Court underArticle 227 of the Constitution. Of course, after the High Courtadjudicates and passes final order, it is always open for either ofthe parties to thereafter come before this Court by filing specialleave petition, seeking leave to appeal under Article 136 of theConstitution. [Para 38][1172-G-H]

Ibrat Faizan v. Omaxe Buildhome Private Limited 2022INSC 573 – relied on.

Pritam Singh v. State 1950 SCC 189 : 1950 SCR 453;Murtaza and Sons and Another v. Nazir Mohd. Khanand Others (1970) 3 SCC 876; Dhakeswari Cotton MillsLtd. v. Commissioner of Income Tax, West Bengal (1955)1 SCR 941 : AIR 1955 SC 65; Ujagar Singh andAnother v. State (Delhi Administration) (1979) 4 SCC530; S.G. Chemicals and Dyes Trading Employees’Union v. S.G. Chemicals and Dyes Trading Limited andAnother (1986) 2 SCC 624 : [1986] 2 SCR 126;Jyotendrasinhji v. S.I. Tripathi and Others, 1993 Supp(3) SCC 389 : [1993] 2 SCR 938; The State of Bombayv. M/s Ratilal Vadilal and Bros. (1961) 2 SCR 367;Associated Cement Companies Ltd. v. P. N. Sharma AIR1965 SC 1595 : [1965] SCR 366; L. Chandra Kumarv. Union of India (1997) 3 SCC 261 : [1997] 2 SCR1186 – referred to.

CIVIL APPELLATE JURISDICTION: Special Leave PetitionB(Civil) No. 5263 of 2023.

From the Judgment and Order dated 16.01.2023 of the NationalConsumers Disputes Redressal Commission, New Delhi in FA No. 376of 2016.

D. Varadarajan, Rajat Khattry, Abhay Kumar, Shagun Ruhil, Advs.Cfor the Petitioner.

S. K. Verma, Ahmad Ibrahim, Ms. Akanksha Verma Chandok,Janmejay Verma, Rajesh Singh Chauhan, Anil Kumar Singh, Advs. forthe Respondents.

The Judgment of the Court was delivered byD

J. B. PARDIWALA, J.:

1. This petition seeking leave to appeal under Article 136 of theConstitution is at the instance of M/s Universal Sompo General InsuranceCompany Limited, Original appellantbefore the National ConsumerDisputes Redressal Commission (for short, ‘the NCDRC’) in the FirstEAppeal No. 376 of 2016 by which the NCDRC dismissed the appealfiled by the petitioner herein thereby affirming the order passed by theState Consumer Disputes Redressal Commission (for short, ‘theSCDRC’) of Delhi, holding that the respondent No. 1 /complainant wasentitled to receive the claim amount and appropriate compensation fromthe petitioner and its joint venture partner viz. Allahabad Bank (respondentFNo. 2) for the goods stolen from the premises in question.

FACTUAL MATRIX

2. It appears from the materials on record that the respondentBank, acting as an intermediary issued Standard Fire and Special PerilsPolicy dated 05.12.2011 in favour of the complainant through the petitionerGherein. Similarly, Burglary Insurance Policy was also issued in favourof the complainant dated 08.12.2011. Boththe policies covered sum ofRs.50 lakh for the risk of fire and burglary. The policies were for theperiod between 25.11.2011 and 24.11.2012.

3. By way of letter dated 28.03.2012, the complainant informed theHrespondent Bank that the construction of his new premises at Bawana,

Delhi had been completed and he had transferred his stock to the abovepremises situated in Bawana from the premises situated in Rajgarh Ext.,Gandhi Nagar, Delhi and Bhagirath Palace, Chandni Chowk, Delhi. In thisletter the complainant had also instructed the Bank to inform the petitioner.

4. The respondent Bank acknowledged the aforesaid intimationand claims to have informed the petitioner by way of letter dated31.03.2012. The Bank claims to have also forwarded the letter dated28.03.2012 of the complainant to the petitioner.

5. On 29.06.2012, theft took place at the Bawana premises andfor that FIR No. 213/2012 was lodged on 30.06.2012 at the PS Bawana.Both, the petitioner and the Bank were also informed about the theft. Asurveyor was appointed by the petitioner to inspect the premises and on01.07.2012, formal complaint was lodged by the complainant with thepetitioner.

6. After the theft, the complainant informed that fire had alsobroken out in the premises at Bawana on 18.10.2012, and the statusreport in that regard was issued by the fire department. Subsequently,the complainant filed claims for both,theft and fire amounting to Rs. 49lakh. The petitioner repudiated the theft claim vide letter dated 22.08.2013and the fire claim was closed on account of non-submission of documentsby the complainant.

7. On 03.06.2013, the complainant aggrieved by the inaction onthe part of the petitioner approached the SCDRC, Delhi under Section17 of the Consumer Protection Act, 1986 (for short, ‘the Act 1986’), byway of Complaint No. 357/2013. He prayed for his claim of Rs. 49 lakhto be processed along with compensation of Rs. 20 lakh and interest atthe rate the respondent Bank was charging from the complainant, withcosts of the complaint.

8. By order dated 18.03.2016, the SCDRC partly allowed thecomplaint holding that the petitioner and the respondent bank werejointly and severally liable for the deficiencies in providing services tothe complainant and the complainant was entitled to be compensatedfor the theft of goods worth Rs. 41,31,180/- @12 % interest per annumfrom the date of the claim. The petitioner and the bank were alsodirected to pay Rs. 2 lakh to the complainant towards compensationfor mental agony, harassment and deficiency in providing services.The petitioner was further directed to finalise the fire claim of Rs. 4lakh of the complainant.

A9. The petitioner herein feeling aggrieved with the order passedby the SCDRC challenged the same before the NCDRC by filing theFirst Appeal No. 376 of 2016 under Section 19 of the Act 1986.Thepetitioner prayed before the NCDRC to set aside the SCDRC’s order inexercise of its appellate jurisdiction and grant costs against the complainantin favour of the petitioner.B

10. By order dated 16.01.2023, the First Appeal filed by thepetitioner herein came to be dismissed.

11. In such circumstances referred to above, the petitioner is herebefore this Court with the present petition, seeking special leave to appealCunder Article 136 of the Constitution.

DISCUSSION

12. In the course of the hearing of this matter, manyfold contentionswere raised on either side. However, the moot question that falls for ourconsideration is whether we should entertain this petition seeking specialDleave to appeal under Article 136 of the Constitution directly against theorder passed by the NCDRC in exercise of its appellate jurisdiction orrelegate the petitioner to avail the remedy of filing writ petition underArticle 226 of the Constitution or petition invoking supervisoryjurisdiction of the jurisdictional High Court under Article 227 of theConstitution?E

13. Before, we proceed to answer the aforesaid question, wemust look into the few relevant provisions of the Act 1986.

14. Section 21(a) of the Act 1986 is titled ‘Jurisdiction of theNational Commission’. The same reads thus:

F“21. Jurisdiction of the National Commission. - Subject tothe other provisions of this Act, the National Commission shallhave jurisdiction —

—(a)to entertain

(i) complaints where the value of the goods or servicesGand compensation, if any, claimed exceeds rupees onecrore; and

(ii) appeals against the orders of any State Commission;….”

15. Section 23 of the Act 1986 provides for an ‘Appeal’. Thesame reads thus:

-“23. Appeal.Any person, aggrieved by an order made by theNational Commission in exercise of its powers conferred bysub-clause (i) of clause (a) of section 21, may prefer an appealagainst such order to the Supreme Courtwithin period ofthirty days from the date of the order:

Provided that the Supreme Court may entertain an appealafter the expiry of the said period of thirty days if it is satisfiedthat there was sufficient cause for not filing it within thatperiod:

Provided further that no appeal by person who is required topay any amount in terms of an order of the National Commissionshall be entertained by the Supreme Court unless that personhas deposited in the prescribed manner fifty per cent. of thatamount or rupees fifty thousand, whichever is less.”

(Emphasis Supplied)

16. The Consumer Protection Act, 1986 stood repealed on20.07.2020 (Section 106, the Act 1986) and the Consumer ProtectionAct, 2019 (for short, ‘the Act 2019’) came into force. In the instantcase, the complaints were instituted under the Act 1986.However, wemust highlight the relevant provisions of the Act 2019, which are parimateria to the provisions of the Act 1986.

“58. Jurisdiction of National Commission. – (1) Subject tothe other provisions of this Act, the National Commission shall—have jurisdiction

(a) to entertain—

(i) complaints where the value of the goods or services paidas consideration exceeds rupees ten crore:

Provided that where the Central Government deems itnecessary so to do, it may prescribe such other value, as itdeems fit;

(ii) complaints against unfair contracts, where the value ofgoods or services paid as consideration exceeds ten crorerupees;

(iii) appeals against the orders of any State Commission;

(iv) appeals against the orders of the Central Authority;……..

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67. Appeal against order of National Commission. - Anyperson, aggrieved by an order made by the NationalCommission in exercise of its powers conferred by sub-clause-(i) or (ii) of clause (a) of subsection (1) of section 58, mayprefer an appeal against such order to the Supreme Courtwithin period of thirty days from the date of the order:

Provided that the Supreme Court may entertain an appealafter the expiry of the said period of thirty days if it is satisfiedthat there was sufficient cause for not filing it within thatperiod:

Provided further that no appeal by person who is requiredto pay any amount in terms of an order of the NationalCommission shall be entertained by the Supreme Court unlessthat person has deposited fifty per cent. of that amount in themanner as may be prescribed.”

D17. plain reading of the aforesaid provisions of the Act 1986and Act 2019, respectively would indicate that the remedy of appeal tothis Court is available only with respect to the orders passed by theNCDRC in exercise of its powers conferred by Section 21(a)(i) of theAct 1986 and 58(1)(a)(i) or 58(1)(a)(ii) of the Act 2019. In other words,both the Acts provide for the remedy of appeal to this Court only withErespect to the orders which are passed by the NCDRC in its originaljurisdiction or as the court of first instance (original orders) and no furtherappeal lies against the orders which are passed by the NCDRC in exerciseof its appellate or revisional jurisdiction.

18. Adverting to the case at hand, the appeal before the NCDRCFwas against the order passed by the SCDRC under Section 17(1)(a)(i)of the Act 1986. Such appeal to the NCDRC was maintainable, asprovided under Section 21(a)(ii) of the Act 1986. As per Section 23 ofthe Act 1986, any person, aggrieved by an order made by the NCDRCin exercise of its powers conferred by Section 21(a)(i), may prefer anGappeal against such order to this Court. Therefore, an appeal against theorder passed by the NCDRC to this Court would be maintainable only incase the order is passed by the NCDRC in exercise of its powersconferred under Section 21(a)(i) of the Act 1986. No further appeal tothis Court is provided against the order passed by the NCDRC in exerciseHof its powers conferred under Section 21(a)(ii) of the Act 1986. There

is no provision for filing any further appeal against the order passed onthe appeal filed against the order of the SCDRC. In such circumstances,the petitioner has come before this Court under Article 136 of theConstitution.

SCOPE AND GRANT OF SPECIAL LEAVE UNDERARTICLE 136 OF THE CONSTITUTION

19. This Court has held in Pritam Singh v. State reported in1950SCC 189 : 1950 SCR 453 at p. 459: “Generally speaking this Courtwill not grant special leave, unless it is shown that exceptional andspecial circumstances exist, that substantial and grave injustice hasbeen done and that the case in question presents features of sufficientgravity to warrant review of the decision appealed against”. Itwas also said in that case that the view that once an appeal has beenadmitted by special leave the entire case is at large and that the appellantis free to contest all the findings of fact and raise every point whichcould be raised in the High Court is wrong. Only those points can beurged at the final hearing of the appeal which are fit to be urged at thepreliminary stage when leave to appeal is asked for. This principle wasstated, it is true, in criminal case but it is of as much significance in civilcases as in the trial of criminal appeals. [See: Murtaza and Sons andAnother v. Nazir Mohd. Khan and Others reported (1970) 3 SCC876].

20. Constitution Bench of this Court in Dhakeswari CottonMills Ltd. v. Commissioner of Income Tax, West Bengal, reported in(1955) 1 SCR 941 : AIR 1955 SC 65 made the following observations:

“7. … It is not possible to define with any precision thelimitations on the exercise of the discretionary jurisdictionvested in this Court by the constitutional provision made inarticle 136. The limitations, whatever they be, are implicit inthe nature and character of the power itself. It being anexceptional and overriding power, naturally it has to beexercised sparingly and with caution and only in special andextraordinary situations. Beyond that it is not possible to fetterthe exercise of this power by any set formula or rule. All thatcan be said is that the Constitution having trusted the wisdomand good sense of the Judges of this Court in this matter, thatitself is sufficient safeguard and guarantee that the power

Awill only be used to advance the cause of justice, and that itsexercise will be governed by well established principles whichgovern the exercise of overriding constitutional powers. It is,however, plain that when the Court reaches the conclusionthat person has been dealt with arbitrarily or that courtor tribunal within the territory of India has not given fairBdeal to litigant, then no technical hurdles of any kind likethe finality of finding of facts or otherwise can stand in theway of the exercise of this power because the whole intentand purpose of this article is that it is the duty of this Court tosee that injustice is not perpetuated or perpetrated byCdecisions of Courts and tribunals because certain laws havemade the decisions of these Courts or tribunals final andconclusive. …”

(Emphasis supplied)

21. In Ujagar Singh and Another v. State (Delhi Administration)Dreported in (1979) 4 SCC 530,Y. V. Chandrachud, C.J., speaking for theBench observed as under:

“1. … There is hardly case, civil or criminal, which doesnot raise some question of law or the other. But no questionof law of general public importance is involved in thesepetitions. It is time that it was realised that the jurisdiction ofEthis Court to grant special leave to appeal can be invoked invery exceptional circumstances. question of law of generalpublic importance or decision which shocks the conscienceof the Court are some of the prime requisites for the grant ofspecial leave. … ”

(Emphasis supplied)

22. In the case of S.G. Chemicals and Dyes Trading Employees’Union v. S.G. Chemicals and Dyes Trading Limited and Another,(1986) 2 SCC 624, this Court observed in para 6 as under:

“6.The Union has directly come to this Court in appeal againstGthe said order of the Industrial Court without first approachingthe High Court under Article 226 or 227 of the Constitutionfor the purpose of challenging the said order. The powers ofthis Court under Article 136 are very wide but as clause (1)of that article itself states the grant of special leave to appealis in the discretion of the court. Article 136 is, therefore, notH

designed to permit direct access to this Court where otherequally efficacious remedy is available and where the questionis not of public importance….”

(Emphasis supplied)

23. This Court in Jyotendrasinhji v. S.I. Tripathi and Others,reported in 1993 Supp (3) SCC 389 observed in para 16 as under;

“16.It is true that the finality clause contained in Section245-I does not and cannot bar the jurisdiction of the HighCourt under Article 226 or the jurisdiction of this Court underArticle 32 or under Article 136, as the case may be. But thatdoes not mean that the jurisdiction of this Court in the appealpreferred directly in this Court is any different than what itwould be if the assessee had first approached the High Courtunder Article 226 and then come up in appeal to this Courtunder Article 136. party does not and cannot gain anyadvantage by approaching this Court directly under Article136, instead of approaching the High Court under Article226. This is not limitation inherent in Article 136; it is alimitation which this Court imposes on itself having regard tothe nature of the function performed by the Commission andkeeping in view the principles of judicial review….”

(Emphasis supplied)

24. Thus, what is discernible from the aforesaid decisions of thisCourt is that the jurisdiction of the Supreme Court to grant special leaveto appeal can be invoked in very exceptional circumstances. The questionof law of general public importance or decision which shocks theconscience of the Court are some of the prime requisites for the grant ofspecial leave. The provisions of Article 136 of the Constitution as suchare not circumscribed by any limitation. But when the party aggrievedhas alternative remedy to go before the High Court, invoking its writjurisdiction or supervisory jurisdiction as the case may be, this Courtshould not entertain petition seeking special leave thereby short-circuitthe legal procedure prescribed. The limitation, whatever, they be areimplicit in the nature and character of the power itself. It being anexceptional and overriding power, naturally it hasto be exercised sparinglyand with caution and only in very exceptional situations. The power willonly be used to advance the cause of justice and its exercise will be

Agoverned by well-established principles which govern the exercise ofoverriding constitutional powers.

25. Almost six decades back, this Court speaking through M.Hidayatullah, J. in the case of the State ofBombay v. M/s Ratilal Vadilaland Bros., reported in (1961) 2 SCR 367 observed as under:B“

“3. … We have frequently noticed that all the remedies whichare open to an appellant are not first exhausted before movingthis Court. Ordinarily, this Court will not allow the High Courtto be bypassed in this manner, and the proper course for anappellant is to exhaust all his remedies before invoking theCjurisdiction of this Court under Article 136.…”

(Emphasis supplied)

26. We shall now look into very recent pronouncement of thisCourt in the case of Ibrat Faizan v. Omaxe Buildhome PrivateDLimited reported in 2022 INSC573. In the said case,the appellant hadbooked flat in the project floated by the respondent. The appellant paidthe entire amount of consideration but the respondent did not hand overthe flat within the time stipulated in the agreement. Therefore, the appellantfiled consumer complaint before the SCDRC on 10.08.2013, allegingdeficiency of service on the part of the respondent. The SCDRC allowedEthe complaint filed by the appellant vide its order dated 16.10.2020. TheSCDRC directed the respondent to hand over the flat to the possessionof the appellant subject to their meeting the requirements. The SCDRCfurther directed the respondent to pay compensation for the deficiencyof service of the respondent in the form of nine per cent simple interestFtill the date of delivery of the flat in possession of the appellant.27. The appellant filed an execution and contempt petition againstthe respondent since he did not comply with the order of the SCDRC.Vide its order dated 12.03.2021, the SCDRC directed the respondent toproduce the details of bank accounts or properties for the purpose ofGattaching the same and to implement the order passed by the SCDRC.

28. The respondent filed an appeal before the NCDRC. On30.03.2021, the NCDRC stayed the order of SCDRC subject to thedeposit of the cost of entire flat along with nine per cent interest on theamount paid till date in the Registry of the SCDRC.H

29. The respondent, being aggrieved against the order of NCDRCfiled writ petition before the High Court, challenging the order passedby the NCDRC. Before the High Court the respondent contended thatthe NCDRC ought not to have directed the respondent, the builder, todeposit the entire cost of the apartment along with the compensationawarded by the SCDRC. The High Court stayed the order of NationalCommission, vide its order dated 25.05.2021. The said stay order wasissued subject to the condition that the respondent is to deposit with theState Commission fifty per cent of the amount directed to be depositedby way of interest towards compensation, within four weeks from thedate of stay order issued by the High Court.

30. In the meantime, the NCDRC passed the final order, confirmingthe order passed by the State Commission, vide its order dated 09.12.2021.The respondent also filed writ petition before the High Court, challengingthe final order passed by the NCDRC. The High Court, in this petition,also granted interim stay vide its order dated 22.12.2021. Against thisorder the appellant filed an SLP before this Court. This Court vide itsorder dated 21.03.2022 directed the High Court to decide the jurisdictionalissue under Article 227 of the Constitution against the order passed bythe NCDRC on or before 18.04.2022 and intimate the outcome to thisCourt. The High Court vide its order dated 31.03.2022 held that the writpetition before the High Court against the order of NCDRC wasmaintainable. This order was challenged by the appellant before thisCourt.

31. The appellant submitted the following before this Court:

(a)Against the order of NCDRC, petition before the HighCourt under Article 227 of the Constitution is notFmaintainable.

(b)Only appeal is maintainable before this Court against theorder of NCDRC as per the provisions of the ConsumerProtection Act.

(c)Without exhausting the appellate remedy, the High Courtought not to have entertained the petition under Article 227of the Constitution.

(d)The High Court ought not to have stayed the order passedby the NCDRC in the limited jurisdiction available underArticle 227 of the Constitution.

A32. The respondent submitted the following before this Court:

(a)The provisions of the Act 2019 do not have appeal provisionsagainst the order of NCDRC passed in exercise of appellate/revisional jurisdiction and therefore writ petition underArticle 226 or petition under Article 227, as the case mayBbe, is maintainable before the High Court against the orderof NCDRC.

(b)For the aforesaid purpose the respondent relied on thefollowing judgments:

•Associated Cement Companies Ltd. v. P. N.CSharma, AIR 1965 SC 1595; and

•L. Chandra Kumar v. Union of India, (1997) 3SCC 261.

33. This Court considered the question for its decision as to whetheragainst the order passed by the NCDRC in an appeal under SectionD58(1)(a)(iii) of the Act 2019, petition before the High Court under theArticle 227 of Constitution of India would be maintainable.

34. After due analysis of the provisions of the Act 2019, whichare parimateria to the provisions of the Act 1986, this Court in IbratFaizan (supra) held as under:E

“11.….Therefore, an appeal against the order passed by theNational Commission to this Court would be maintainable onlyin case the order is passed by the National Commission inexercise of its powers conferred under Section 58(1)(a)(i) orunder Section 58(1)(a)(ii) of the 2019 Act. No further appealFto this Court is provided against the order passed by theNational Commission in exercise of its powers conferred underSection 58(1)(a)(iii) or under Section 58(1)(a)(iv) of the 2019Act. In that view of the matter, the remedy which may beavailable to the aggrieved party against the order passed byGthe National Commission in an appeal under Section58(1)(a)(iii) or Section 58(1)(a)(iv) would be to approach theconcerned High Court having jurisdiction under Article 227of the Constitution of India.”

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14.….while exercising the powers under Article 227 of theConstitution of India, the High Court subjects itself to therigour of Article 227 of the Constitution and the High Courthas to exercise the jurisdiction under Article 227 within theparameters within which such jurisdiction is required to beexercised.”

(Emphasis supplied)

35. In Ibrat Faizan (supra), this Court took notice of its earlierdecision in the case of Associated Cement (supra), wherein, ConstitutionBench held as under:

“9. … Special matters and questions are entrusted to themfor their decision and in that sense, they share with the Courtsone common characteristic; both the courts and the tribunalsare “constituted by the State and are invested with judicial asdistinguished from purely administrative or executivefunctions”, (vide Durga Shankar Mehta v. Raghuraj Singh,1955 1 SCR 267 at p. 272: (AIR 1954 SC 520 at p. 522).They are both adjudicating bodies and they deal with andfinally determine disputes between parties which are entrustedto their jurisdiction. The procedure followed by the Courts isregularly prescribed and in discharging their functions andexercising their powers, the Courts have to conform to thatprocedure. The procedure which the tribunals have to followmay not always be so strictly prescribed, but the approachadopted by both the Courts and the tribunals is substantiallythe same, and there is no essential difference between thefunctions that they discharge.As in the case of Courts, so inthe case of tribunals, it is the State’s inherent judicial powerwhich has been transferred and by virtue of the said power, itis the State’s inherent judicial function which they discharge.Judicial functions and judicial powers are one of the essentialattributes of sovereign State, and on considerations ofpolicy, the State transfers its judicial functions and powersmainly to the Courts established by the Constitution; but thatdoes not affect the competence of the State, by appropriatemeasures, to transfer part of its judicial powers andfunctions to tribunals by entrusting to them the task ofadjudicating upon special matters and disputes between

EFGH

parties. It is really not possible or even expedient to attemptto describe exhaustively the features which are common tothe tribunals and the Courts, and features which are distinctand separate. The basic and the fundamental feature whichis common to both the Courts and the tribunals is that theydischarge judicial functions and exercise judicial powerswhich inherently vest in sovereign State.

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44. An authority other than Court may be vested by statutewith judicial power in widely different circumstances, whichit would be impossible and indeed inadvisable to attempt todefine exhaustively. The proper thing is to examine each caseas it arises, and to ascertain whether the powers vested in theauthority can be truly described as judicial functions orjudicial powers of the State. For the purpose of this case, it issufficient to say that any outside authority empowered by theState to determine conclusively the rights of two or morecontending parties with regard to any matter in controversybetween them satisfies the test of an authority vested with thejudicial powers of the State and may be regarded as tribunalwithin the meaning of Art. 136. Such power of adjudicationimplies that the authority must act judicially and mustdetermine the dispute by ascertainment of the relevant factson the materials before it and by application of the relevantlaw to those facts. This test of tribunal is not meant to beexhaustive, and it may be that other bodies not satisfying thistest are also tribunals. In order to be tribunal, it is essentialthat the power of adjudication must be derived from statuteor statutory rule. An authority or body deriving its powerof adjudication from an agreement of the parties, such as aprivate arbitrator or tribunal acting under S. 10A of theIndustrial Disputes Act, 1947, does not satisfy the test of atribunal within Art. 136. It matters little that such body orauthority is vested with the trappings of Court. TheArbitration Act, 1940 vests an arbitrator with some of thetrappings of Court, so also the Industrial Disputes Act, 1947vests an authority acting under S. 10A of the Act with manyof such trappings, and yet, such bodies and authorities arenot tribunals.

45.The word “tribunal” finds place in Art. 227 of theConstitution also, and I think that there also the word has the”same meaning as in Art. 136.

(Emphasis supplied)

36. Having regard to the aforesaid, this Court in Ibrat Faizan(supra) observed as under:

”12. … Therefore, the National Commission can be said tobe ‘Tribunal’ which is vested by Statute the powers todetermine conclusively the rights of two or more contendingparties with regard to any matter in controversy between them.Therefore, as observed hereinabove in the aforesaid decision,it satisfies the test of an authority vested with the judicialpowers of the State and therefore may be regarded as a‘Tribunal’ within the meaning of Article 227 and/or 136 ofthe Constitution of India. …”

(Emphasis supplied)

37. This Court in Ibrat Faizan (supra), while explaining theimportance of approaching the High Court, more particularly when aremedy is available by way of writ petition under Article 226 of theConstitution or by way of petition under Article 227 of the Constitution(supervisory jurisdiction) observed as under:

“12.….Also, in given case, this Court may not exercise itspowers under Article 136 of the Constitution of India, in viewof the remedy which may be available to the aggrieved partybefore the concerned High Court under Article 227 of theConstitution of India, as it is appropriate that aggrieved partyapproaches the concerned High Court by way of writ petitionunder Article 227 of the Constitution of India.

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13.Now so far as the remedy which may be available underArticle 136 of the Constitution of India is concerned, itcannot be disputed that the remedy by way of an appeal byspecial leave under Article 136 of the Constitution of Indiamay be too expensive and as observed and held by this Courtin the case of L. Chandra Kumar (supra), the said remedy

can be said to be inaccessible for it to be real and effective.Therefore, when the remedy under Article 227 of theConstitution of India before the concerned High Court isprovided, in that case, it would be in furtherance of the rightof access to justice of the aggrieved party, may be acomplainant, to approach the concerned High Court at alower cost, rather than Special Leave to Appeal underArticle 136 of the Constitution.

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14.1. The scope and ambit of jurisdiction of Article 227 ofthe Constitution has been explained by this Court in the caseof Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97,which has been consistently followed by this Court (see therecent decision of this Court in the case of GarmentCraft v. Prakash Chand Goel, 2022 SCC OnLine SC 29).Therefore, while exercising the powers under Article 227 ofthe Constitution, the High Court has to act within theparameters to exercise the powers under Article 227 of theConstitution. It goes without saying that even whileconsidering the grant of interim stay/relief in writ petitionunder Article 227 of the Constitution of India, the High Courthas to bear in mind the limited jurisdiction of superintendenceunder Article 227 of the Constitution. Therefore, whilegranting any interim stay/relief in writ petition under Article227 of the Constitution against an order passed by theNational Commission, the same shall always be subject to therigour of the powers to be exercised under Article 227 of theConstitution of India.”

(Emphasis supplied)

38. In the aforesaid view of the matter, we have reached to theconclusion that we should not adjudicate this petition on merits. We mustGask the petitioner herein to first go before the jurisdictional High Courteither by way of writ application under Article 226 of the Constitutionor by invoking the supervisory jurisdiction of the jurisdictional High Courtunder Article 227 of the Constitution. Of course, after the High Courtadjudicates and passes final order, it is always open for either of theparties to thereafter come before this Court by filing special leave petition,Hseeking leave to appeal under Article 136 of the Constitution.

39. We take notice of the order passed by this Court dated29.03.2023 which reads thus:

“2. In the meantime, there shall be stay of the impugnedjudgment and order, subject to deposit of 50 per cent of theawarded amount in this Court.”

40. However, in the aforesaid context, it is also necessary for usto look into the office report dated 03.07.2023, which reads thus:

“It is further submitted that Dr. S.K. Verma, Advocate forrespondent no.1 has on 28.06.2023 filed an application forrelease of deposited amount made by the Petitioner. However,the same is defective as original property papers are not filed.Also, the documents relating to valuation of property are notfiled as in the lease papers the amount mentioned is Rs.6,30,000/-. Hence, the amount was not disbursed to therespondent no.1.”

41. It appears from the aforesaid that the complainant was not ina position to withdraw the fifty per cent amount deposited by the petitionerherein. It further appears that the amount deposited by the petitionerherein is still with the Registry of this Court. Since we are not entertainingthis petition on merits, we direct the Registry to refund the amount to thepetitioner after due and proper verification.

42. In the result, this petition is disposed of with liberty to thepetitioner to approach the jurisdictional High Court and challenge theorder passed by the NCDRC, in accordance with law.

43. It is needless to clarify that we have not expressed any opinionon the merits of the case. The merits of the case shall be looked into bythe jurisdictional High Court.

Nidhi Jain(Assisted by : Tamana, LCRA)

Petition disposed of.