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Appeals from NCDRC Orders in Execution Proceedings not Maintainable u/Consumer Protection Act

September 8, 2020

By Nihit Nagpal and Abhishek Butoliya

A right to appeal is not a natural or an inherent right rather it is a statutory right i.e. a right conferred by a Statute. Recently, the Hon’ble Supreme Court in M/s Ambience Infrastructure Private Limited (Now known as) Ambience Developers and Infrastructure Pvt Ltd and Another Vs. Ambience Island Apartment Owners and Others[1], while deciding an appeal filed by a real estate developer against the order passed by National Disputes Redressal Commission (NCDRC) in an execution proceeding has held that a civil appeal before the Supreme Court is not maintainable against the order of NCDRC passed in the course of Execution proceedings as the  right to appeal is not provided under The  Consumer Protection Act, 1986 ( referred as the ‘Act’).

Brief facts of the case

The controversy in this matter relates to a dispute between Real Estate company namely, Ambience Developers And Infrastructure Pvt. Ltd and the apartment owners association, namely, Ambience Island Apartment Owners. The apartment owners being aggrieved by the poor quality of elevators installed by the Appellants in their society had filed a consumer case before National Consumer Dispute Resolution Commission of New Delhi against deficiency in service provided by the Appellants. The NCDRC ruled in favor of the apartment owners and directed the Appellants to pay the Respondent 70% of the total maintenance charges from November 2002 with interest at 9 % per annum within 90 days or else at an enhanced rate of 12 % per annum.[2] Thereafter, to enforce the order of the Commission, execution proceedings were initiated before NCDRC. The NCDRC during execution proceedings passed an order dated November 03, 2015 wherein it arrived at a conclusion that as per the original order, the decretal amount would cover 66 persons and that the appellants are liable to pay 70 % of the total maintenance charges. Being aggrieved by the said order the Appellants filed a civil appeal before the Supreme Court challenging the impugned order passed by the NCDRC.

Appellant’s Submissions

The main grievance of the Appellants was that since the complaint before the NCDRC pertained only to the deficiency in service as regards the provision of elevators only, the order of the NCDRC directing the payment of 70% of the total maintenance amount (as opposed to 70 % of the maintenance charges collected for lifts) was contrary to the tenor of the complaint and the original order.

Respondent’s submissions

The Respondents took a preliminary objection with regards to the maintainability of the appeal filed by Appellants. The Respondent while referring to the provision of appeal as contained under Section 23[3] of The Consumer Protection Act, 1986 contended that an appeal under Section 23 lies against an order passed by the NCDRC in exercise of its jurisdiction under Section 21(a) (i)[4]. On a conjoint reading of both sections, it would emerge that an appeal under Section 23 would be maintainable against an order passed by NCDRC on a complaint where the value of the goods or services and compensation, if any, claimed, exceeds the prescribed threshold.

  • The Second objection taken by the Respondent was that that the Appellants had taken similar objections before the NCDRC during the execution proceedings. Further, the same objections were also taken by the Appellants in the review petition as well as in civil appeal, both of which were Hence, the Appellant was not entitled to agitate the same claims before the Supreme Court.

CONCLUSION

The Hon’ble Two- Judge Bench of the Supreme Court while dismissing the appeal made the following observations in the case:

  • The Apex Court noted that an appeal under Section 23 of the Consumer Protection Act would be maintainable against an order which has been passed by the NCDRC on a complaint where the value of the goods or services or compensation, if any, claimed, exceeds the threshold which is prescribed i.e. rupees one crore.
  • The Hon’ble Bench also made reference to the case of Karnataka Housing Board vs K.A. Nagamani[5], wherein the Hon’ble Court made a distinction between execution proceedings and original proceedings and held that the former was separate and independent.

Finally, the Hon’ble Court after examining the relevant statutory provisions i.e. Section 23 read with Section 21 of the Act held that a civil appeal against the order of NCDRC passed during execution proceedings shall not be maintainable as such a right is not conferred under The Consumer Protection Act, 1986.

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[1] Civil Appeal Nos 1213-1215 of 2017

[2] https://indiankanoon.org/doc/121914349/

[3] Section 23. Appeal.—Any person, aggrieved by an order made by the National Commission in exercise of its powers conferred by sub-clause (i) of clause (a) of Section 21, may prefer an appeal against such order to the Supreme Court within a period of thirty days from the date of the order:

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

[Provided further that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person has deposited in the prescribed manner fifty per cent. of that amount or rupees fifty thousand, whichever is less.]

[4]Section 21. Jurisdiction of the National Commission.—Subject to the other provisions of this Act, the National Commission shall have jurisdiction—

  • to entertain—
  • complaints where the value of the goods or services and compensation, if any, claimed exceeds 1[rupees one crore];

[5] (2019) 6 SCC 424

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