KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

REVISION PETITION No.13/2022

ORDER DATED: 24.10.2024

(Against the Order in I.A.No.75/2021 in E.A.No.08/2021 of DCDRC, Wayanad)

PRESENT:

PETITIONERS/GARNISHEE:

(by Advs. S. Reghukumar & Threya Pillai)

Vs.

RESPONDENTS/COMPLAINANT/OPPOSITE PARTIES:

(by Adv. Vinod Kumar S.)

O R D E R

SRI. AJITH KUMAR  D.  :  JUDICIAL MEMBER

          This is a petition filed by the Federal Bank, Kalpetta Branch against the order dated 10.12.2021 passed by the District Consumer Disputes Redressal Commission, Wayanad (the District Commission for short) in I.A.No.75/2021 in E.A.08/2021.

          2.       The revision petitioner was served with a garnishee order in view of the request made by the decree holder for realization of an amount of Rs.47,300/-(Rupees Forty Seven Thousand Three Hundred only) with interest @12% per annum, compensation of Rs.5,000/-(Rupees Five Thousand only) and costs Rs.3,000/-(Rupees Three Thousand only).

          3.       The judgement debtor had a fixed deposit in the Kalpetta Branch of the Federal Bank.  The District Commission had attached the deposit by the order under challenge.  After the attachment, decree holder moved an application as I.A.No.136/2021 to direct the garnishee to deposit the amount before the District Commission and accordingly notice was issued to the petitioner.  In response to the notice, the petitioner had appeared before the District Commission and filed a counter affidavit opposing the prayer.  On 19.11.2021, disregarding the objections filed by the revision petitioner, the District Commission had suo motu advanced the matter without issuing notice to the garnishee, passed the order under challenge.  In the order the District Commission observed that there was error apparent on the face of the record warranting an order of review.  But the error was not mentioned in the order.

          4.       The bank had filed original application as O.A.No.375/2016 before the DRT, Ernakulam for realization of the amount due from the judgement debtors.  Final order had also passed by the Debt Recovery Tribunal and recovery certificate was issued for recovering the dues.

          5.       The order passed by the District Commission is contrary to law and it suffers material irregularity.  Hence, the petitioner would seek for setting aside the order passed by the District Commission.

          6.       The records from the District Commission were called for.  Notice served on the respondents.  1^st respondent/decree holder alone had entered appearance.

          7.       Heard both sides.  Perused the records.

          8.       On a perusal of the records, it could be seen that on 19.11.2021, the revision petitioner had entered appearance in response to the notice issued by the District Commission in I.A.No.136/2021 and filed counter.  Thereafter, the matter was posted to 13.12.2021.  But on 10.12.2021, the District Commission had advanced the matter suo motu on the reason that there was an error apparent on the face of the record in the order dated 19.11.2021 and accordingly, the said order was reviewed by ordering attachment of the fixed deposit maintained by the judgement debtor at the branch of the revision petitioner.

          9.       The revision petitioner had filed a counter statement before the District Commission that the bank had already filed original application as O.A.375/16 before the DRT, Ernakulam for realization of the amount due from the judgement debtors and a final order has been passed by the Debt Recovery Tribunal by issuing recovery certificate No.313/18 and the matter was posted for hearing on 13.12.2021.  The District Commission on 10.12.2021 without issuing notice to the revision petitioner, had suo motu advanced the matter and reviewed the order dated 19.11.2021 and attachment was ordered. 

10.     It is true that Section 40 of the Consumer Protection Act, 2019 empowers the District Commission to review its order if there is an error apparent on the face of the record.  The power contained under Section 40 of the Consumer Protection Act could be sparingly exercised so as to correct any error apparent on the face of the record.  When such a power is exercised, it is obligatory on the part of the District Commission to state the error crept in the order.  The copy of the order dated 19.11.2021 in I.A.No.75/2021 is produced for perusal.  The District Commission has directed the revision petitioner to retain the amount of Rs.69,356/-(Rupees Sixty Nine Thousand Three Hundred and Fifty Six only) from the fixed deposit of the judgement debtor maintained in the branch of the revision petitioner.  This order was suo motu reviewed and an order of attachment was passed on 10.12.2021. 

11.     We could not find any error apparent on the face of the record in the order dated 19.11.21.  As per the said order, the revision petitioner was directed to retain the amount.  But a review is ordered and attachment was ordered on 10.12.2021.  When an order is reviewed after the appearance of the parties, it was obligatory on the part of the District Commission to issue notice to the revision petitioner.  It is also obligatory on the part of the District Commission to state the error apparent on the face of the record.  Nothing is mentioned in the order regarding the error in the order dated 19.11.2021. 

12.     In this connection it is also pertinent to note that the revision petitioner had filed a counter affidavit stating that the disputed deposit is the subject matter of a proceedings pending before the Debts Recovery Tribunal.  The Consumer Protection Act is a general enactment whereas the SARFAESI Act is a later enactment and the provisions of a special enactment would override the provisions of a general enactment.  When the DRT had already adjudicated the matter and passed a recovery certificate, the Consumer Commission cannot proceed against the said order by resorting to the provisions of the Consumer Protection Act.  This cardinal, legal issue was not seen taken into account by the District Commission while passing the order of attachment.

13.     The propriety demands issuance of a notice to the revision petitioner before causing any change in the order passed against the revision petitioner.  The District Commission has exceeded its jurisdiction in reviewing the order dated 19.11.2021 by ordering attachment.  The order suffers material illegality.  Hence, the order is liable to be reversed.

In the result, the revision petition is allowed.  The order passed by the District Commission dated 10.12.2021 attaching the fixed deposit in account No.13450300032887 of the Federal Bank, Kalpetta is reversed and the District Commission is directed to dispose of the I.A.No.136/2021 in accordance with the law.  No costs.

SL