“Power of state commission to review its order” [Case Brief] Biratunga S.C.S. Ltd. V/s Sangram Keshari Pati and Ors Case name: Biratunga S.C.S. Ltd. V/s Sangram Keshari Pati and Ors Case number: AIR 2006 Ori 97 Court: Orissa High Court Bench: Hon’ble Justice S Roy, Hon’ble Justice M Das Decided on: 25 January, 2006 Relevant Consumer Protection Act, 1986 Act/Sections: ➢ BRIEF FACTS AND PROCEDURAL HISTORY: 1. The opp. party no. 1, as the complainant, alleged that he opened a Savings Bank Account with the petitioner. It was alleged that he deposited a sum of Rs. 65, 163/- in the said Account on 1.3.2002 which was duly entered into in his Pass Book. The opp. party no. 1 went to the Petitioner Bank and wanted to withdraw a sum of Rs. 20,000/- from his S. B. Account but was told by the Branch Manager of the petitioner Bank (opp. party No. 2) that due to shortage of funds, the said amount cannot be paid by the bank on that day and he should come afterwards. 2. The opp. party No. 1 alleged that he again went to withdraw the said amount when the Branch Manager-opp. party No. 2 asked him to hand over the Pass Book along with the deposit voucher dated 1.3.2002 under which an amount of Rs. 65,163/- was deposited by the opp. party No. 1. 3. The opp. party No. 1 was not permitted to withdraw the said amount for which he approached the State Commission claiming compensation on account of deficiency in service and damages for suffering, harassment and mental agony. 4. A notice was issued to the petitioner fixing the date of appearance and filing of show cause. The petitioner engaged an advocate and entered appearance through him in the said case. It is alleged by the petitioner that though all material documents were supplied by him to his Advocate for drafting and filing of the show cause/counter affidavit, the said Advocate did not file the same nor remained present when the case was taken up for final hearing and order under annexure 1 was passed. He filed a recall plea which was dismissed. PROCEDURAL HISTORY- a) The petitioner in the present writ application has prayed for quashing the orders dated 29.7.2005 and 2.12.2005 under Annexures-1 and 2 respectively passed by the State Consumer Disputes Redressal Commission, Orissa, Cuttack. b) After receiving the copy of order under Annexure 1, he filed Misc. Case No. 1115 of 2005 in the C.D. Case No. 56 of 2004 before the State Commission making a prayer to recall the said order. c) The said Misc. Case was dismissed by order-dated 2.12.2005 by the State Commission holding that the State Commission has no power to review/recall its own order. ➢ ISSUE BEFORE THE COURT: 1. Does the State Commission have the power to review or recall its order? 2. Is the writ application maintainable as there is an efficacious alternative remedy available to the petitioner? 3. Can the court exercise jurisdiction under Article 226 of the Constitution by directing the State Commission to rehear the case due to violation of Principle of Natural Justice? ➢ RATIO OF THE COURT 1. Counsel for opp. party 1 submits that the writ application is not maintainable as there is an efficacious alternative remedy available to the petitioner by filing an appeal against the final order under Section 19 of the Act, before the National Commission. 2. He further submits that the order under annexure 2 through which the application of the petitioner was rejected has been rightly passed as the State Commission under the C.P. Act has no power either to set aside an order passed ex parte or to recall/ review its own order. 3. Counsel for the petitioner contends that the petitioner is a Co-operative Society formed under the Orissa Co-operative Societies Act, 1962 and is a Mini Bank sponsored by the United Puri Nimapara Central Cooperative Bank Ltd., opp. party no. 1 could not have filed the complaint before the State Commission as Orissa Co-operative Societies Act provides for adjudication of such disputes before the prescribed authorities under the said Act. 4. He further contends that as there is violation of PNJ, Court have jurisdiction under Art 226 and relied on the case of Executive Officer where it was held that where the principles of natural justice are violated by not providing an opportunity of hearing, even in the absence of any statutory provision to that effect, the jurisdiction of the High Court under Articles 226 and 227 of the Constitution can be invoked and availability of alternative remedy cannot be a bar to the maintainability of the writ application. 5. Section 3 of the C.P, Act specifically provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law, court viewed that even though the dispute raised by the opp. party no. 1 might have been raised under the provisions of the Orissa Co-operative Societies Act, 1962, but that does not bar it to raise a similar dispute before the Forums under the C.P. Act when the allegation relates to deficiency in banking service on the part of the petitioner which is admittedly a Mini Bank as "banking service" is a service as defined under the C.P. Act and the opp. party No. 1 having hired the said banking service provided by the writ petitioner for a consideration, he squarely comes under the definition of a "consumer" as defined in Section 2(d) of the C.P. Act. 6. Since allegation of lack of jurisdiction of State Commission and violation of principles of natural justice have been made, the writ application cannot be thrown out on the ground that alternative remedy by way of appeal is available 7. It was found that it is admitted by the petitioner that notice was duly served on it by the State Commission and the further admission of the petitioner that it appeared in the said case by engaging an Advocate, there was no scope for the court to hold that the principles of natural justice had been violated in any manner. 8. The court observed that the State Commission has not committed any error in entertaining the said complaint and deciding the same on merit. We further hold that the contention of the petitioner that the order dated 29.7.2005 has been passed without jurisdiction is unacceptable. 9. Court relied on the judgement of the Supreme court in the case of Jyotsana Arvind Kumar Shah and others which said that the order of the State Commission setting aside the ex parte order cannot be sustained. ➢ DECISION HELD BY COURT: 1. Court held no error in order dismissing the case of petitioner. Court found no merit in the writ and hence it was dismissed. .