Alliance Realtors & Others v. Pius C. Mundadan & Consumer Disputes Redressal Forum, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HON'BLE THE ACTING CHIEF JUSTICE MR.THOTTATHIL B.RADHAKRISHNAN** **& THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 12TH DAY OF JULY 2016/21ST ASHADHA, 1938** **WA.No. 1344 of 2016 () IN WP(C).5703/2016 -------------------------------------------** **AGAINST THE ORDER/JUDGMENT IN WP(C) 5703/2016 of HIGH COURT OF KERALA DATED 13-06-2016** **APPELLANT(S):/RESPONDENTS 1 TO 3** **------------** **1. ALLIANCE REALTORS 40/1819, B6, FIRST FLOOR, ALLIANCE RESIDENCY, MARINE DRIVE, COCHIN-682 031, REPRESENTED BY ITS MANAGING PARTNER MR.JOSEPH LUKOSE.** **2. JOSEPH LUKOSE, AGED 55 YEARS, S/O.LATE P.V.LUKOSE, MANAGING PARTNER, ALLIANCE REALTORS, 12C, ALLIANCE RESIDENCY, NO.40/1819-NI OF CORPORATION OF COCHIN, MARINE DRIVE, SHANMUGHAM ROAD P.O., COCHIN-682 031.** **3. PHILIP KURUVILA AGED NOT KNOWN, S/O.T.P.KURUVILA, PARTNER, ALLIANCE RELATORS, RESIDING AT 61-A DAKSHINA PARK, 10TH ROAD, JUHU SCHEME, MUMBAI-400049, REP.BY THE POWER HOLDER MR.JOSEPH LUKOSE, AGED 55 YEARS, S/O.LATE P.V.LUKOSE, MANAGING PARTNER, ALLIANCE REALTORS, 12C, ALLIANCE RESIDENCY, NO.40/1819-NI OF CORPORATION OF COCHIN, MARINE DRIVE, SHANMUGHAM ROAD P.O., COCHIN-682 031.** **BY ADVS.SRI.K.V.JAYACHANDRAN** **SRI.RAJU V.MATHEW MATHEW ABRAHAM** **RESPONDENT(S):/PETITIONER & 4TH RESPONDENT** **--------------** **1. PIUS C. MUNDADAN S/O.M.L.CYRIAC, ADVOCATE, NOW RESIDING AT FLAT NO.2D, 'FLAMINGO', SFS AQUA GREENS, DESOM KALADY ROAD, DESOM POST, ALUVA, ERNAKULAM-683 102.** **2. CONSUMER DISPUTES REDRESSAL FORUM ERNAKULAM, REPRESENTED BY ITS PRESIDENT, NEAR PULLEPPADY, GOVERNMENT HOMEO HOSPITAL, KATHRIKADAVU, ERNAKULAM-682 017.** **R BY ADV.R.RENJITH, GOVERNMENT PLEADER R1 BY SRI.PIUS C.MUNDADAN** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** jg-16/7 ## THOTTATHIL B.RADHAKRISHNAN, Ag.CJ & ANU SIVARAMAN, J. .................................................................... W.A.No.1344 of 2016 .................................................................... Dated this the 12[th] day of July, 2016. ## J U D G M E N T ## Thottathil B.Radhakrishnan, Ag.CJ. - 1.Heard the learned counsel for the appellants and the first respondent appearing in person. Notice to the second respondent is dispensed with. - 2.Having regard to the nature of the judgment that is being issued hereby and to ensure appropriate further proceedings, we dissuade ourselves from making elaborate statements on different aspects of this litigation, though certain skeletal matters need to be stated. - 3.The first respondent moved the second respondent, Consumer Disputes Redressal Forum, Ernakulam, for reliefs against the appellants. At one stage, he had moved this Court and obtained a WA1344/16 -2- direction for expeditious consideration of his complaint. Ultimately, the matter was decided by the CDRF. He filed writ petition invoking Article 226 of the Constitution of India challenging the decision of the CDRF. The learned single Judge set aside the order of the CDRF and ordered transfer of the case for consideration by CDRF, Thrissur. This is under appeal by the builders, who are the respondents in the writ petition and before CDRF, Ernakulam. 4.Learned counsel for the appellants argued that in terms of the provisions of the Consumer Protection Act, 1986, for short, 'the Act', there is a statutory wholesome appeal available to the first respondent, if he were aggrieved by the decision of the CDRF. Referring to the decisions of the Honourable Supreme Court of India in Nivedita Sharma v. Cellular Operators Assn. of India [(2011) 14 SCC 337] and in Cicily Kallarackal v. Vehicle Factory [2012(3) KHC 689], he argued that in view of the availability of the statutory appellate remedy, recourse to writ jurisdiction ought not to have been permitted. He further argued that the learned single WA1344/16 -3- Judge need not have transferred the case to CDRF, Thrissur, even if the matter is required to be reconsidered, and it ought to have been remitted only to CDRF, Ernakulam, which was the initial authority. 5.Having read the contents of the judgment of the learned single Judge and Ext.P28 decision of CDRF, Ernakulam, we pointedly asked the learned counsel for the appellants regarding the contents of ground 'L' in the writ petition. He candidly submitted that on 19.12.2015, instead of three members, only one person was available when the notes of arguments were handed over. According to him, submissions were made also on the question of pecuniary jurisdiction and the issue that was raised by the builder after earlier arguments were over. The complaint of the applicant (first respondent herein) before the CDRF as reflected in ground 'L' of the writ petition is that he was given argument notes running to 11 pages at 4.00 p.m. and the President of the CDRF sat alone without any other member sitting together with him and conducted proceedings violating Section 14(2) of the Act. His WA1344/16 -4- specific plea is that he was given hardly five minutes to reply to the elaborate submissions made on behalf of the builders. He also pointed out under that ground that he was forced to pay an amount of `42,000/- as Advocate Commissioner's fee for 14 hours to record the cross-examination, and he elaborated, ultimately, to conclude that the proceedings of the CDRF clearly showed that he did not get justice at the hands of CDRF, Ernakulam. 6.Violation of provisions of the statute, particularly, in matters relating to sitting by judicial authorities or quasi judicial authorities and exercising adjudicative function is a critical matter which goes to the root of any adjudication and decision making. It hits the decision in its bud. Therefore, the learned single Judge was well within jurisdiction under Article 226 of the Constitution of India to have stepped in, notwithstanding the statutory appellate remedy available under the Act. We repel the plea to the contrary as raised by the appellants. WA1344/16 -5- 7.Once it was decided on facts that the matter deserved to be reconsidered by the statutory authority in view of the procedural irregularity, we think that it is wise for us to leave open the issue, including the one relating to the question as to whether the first respondent is the consumer for the purpose of the Act. The charge against him to deny him being treated as a consumer is that he was purchasing a second home in the form of an apartment from the builder while he already had a residential building and therefore, he was entering into commercial domain rather than remaining as a consumer. We are mentioning this only to state that there are ample reasons for a de novo consideration of the entire materials by the authority which will decide this case on facts as a result of the impugned judgment and this appellate judgment. - 8.Onto the question whether the case ought to have been transferred from CDRF, Ernakulam to CDRF, Thrissur, when the writ court assimilating the facts and factors and having assessed the quality of the procedural irregularity, has concluded that this WA1344/16 -6- is a case where there is manifest miscarriage of justice at the hands of CDRF, Ernakulam, it would have been only advisable for the learned single Judge to have made a choice as to whether the litigation should go before a different Forum for decision. Justice must not only be done. But, it should be shown to have been done. A semblance of vice should not be permitted to smear the litigative and adjudicative processes. It shakes the confidence of the people in the judicial system. On the whole, we are satisfied that the learned single Judge acted well within jurisdiction in passing the discretionary order for transfer of the case from CDRF, Ernakulam to CDRF, Thrissur. For the aforesaid reasons, we do not find any ground to interfere with the impugned judgment. Resultantly, we dismiss this appeal clarifying that CDRF, Thrissur will hear the case on the basis of the entire materials already on record and any further material which the parties may place, at the earliest, untrammelled by anything stated in Ext.P28 order of the CDRF, Ernakulam or the impugned judgment of the learned single Judge or this judgment WA1344/16 -7- touching the disputed questions as between the parties on facts and evidence. Handover a copy of the judgment of the learned single Judge and a copy of this appellate judgment to CDRF, Ernakulam and CDRF, Thrissur. (THOTTATHIL B.RADHAKRISHNAN, AG. CHIEF JUSTICE) (ANU SIVARAMAN, JUDGE) jg-12/7