Beena Kannan v. K.J. Mathew

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 18TH MARCH 2010 / 27TH PHALGUNA 1931 WP(C).No. 7693 of 2010(J) ------------------------- PETITIONER(S): --------------- BEENA KANNAN, PROPRIETRIX, M/S. SEEMATTI TEXTILES, M.G. ROAD, KOCHI - 682 035. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE SRI.MILLU DANDAPANI RESPONDENT(S): --------------- K.J. MATHEW, KOZHIPPILLIL HOUSE, KAPPU, MADAKKATHANAM.P.O, MUVATTUPUZHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.7693/2010 ## APPENDIX ## PETITIONER'S EXHIBITS P1 : COPY OF COMPLAINT FILED IN CC 11/2010 FILED BY THE RESPONDENT BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM DATED 11/01/2010. P2 : COPY OF I.A.NO.14/2010 IN CC 11/2010 FILED BY THE RESPONDENT BEFORE THE CDRF, ERNAKULAM DATED 11/01/2010. P3 : COPY OF EX-PARTE ORDER IN I.A.NO.14/2010 IN CC NO.11/2010 DATED 11/01/2010. P4 : COPY OF COUNTER AFFIDAVIT FILED ON BEHALF OF THE PETITIONER IN I.A.NO.14/2010 IN C.C.NO.11/2010 ON THE FILE OF THE CDRF, ERNAKULAM. P5 : COPY OF THE ORDER PASSED BY THE CDRF, ERNAKULAM DATED 03/02/2010. P6 : COPY OF ORDER PASSED BY THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM, DATED 05/02/2010. //TRUE COPY// PA TO JUDGE. jg C.R. ## ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.7693 of 2010 (J) --------------------------------Dated, this the 18[th] day of March, 2010 ## J U D G M E N T In this writ petition, by order dated 12/03/2010 notice was ordered to be served on the respondent by special messenger. Accordingly, notice specifying 17/03/2010 as the date of hearing, was served on him. However, when the case was taken up on 17/03/2010, there was no appearance on behalf of the respondent, and therefore, the case was adjourned to today and today also, there is no appearance on his behalf. Therefore, the writ petition was heard finally. 2. Briefly stated the facts of the case are that the respondent filed CC No.11/2010 before the Consumer Disputes Redressal Forum, Ernakulam (hereinafter referred to as CDRF for short) complaining that the petitioner herein is collecting Rs.500/each as parking fees from the customers, who park their vehicles in the car parking area of her shop, Seematti Textiles, Ernakulam. It is also alleged that the amount collected is not refunded to those do WP(C) No.7693/2010 -2- not buy goods from her shop. According to the respondent, this practice is a Restrictive Trade Practice and Unfair Trade Practice as defined in the Consumer Protection Act, 1986. In the complaint, the respondent herein sought directions to the petitioner, to refund Rs.500/- collected from him with 12% interest, to declare that the collection of parking fee is an unfair and restrictive trade practice, and to award compensation of Rs.50,000/- to the complainant. A copy of the complaint is Ext.P1. Along with the complaint, I.A.No.14/2010, a copy of which is Ext.P2, was also filed praying for a direction to the petitioner to refrain from collecting parking fee @ Rs.500/-. 3. In I.A.No.14/2010, the CDRF passed Ext.P3 exparte order dated 11/01/2010 directing the petitioner to forthwith refrain from levying parking fee from the customers, who visit her shop. On being served notice, the petitioner filed Ext.P4 counter affidavit justifying the levy of parking fee. The matter was heard and Ext.P5 order dated 03/02/2010 was passed by the CDRF, holding that it is of the considered view that the practice of levying Rs.500/-, under whatever name, is illegal and unreasonable. Taking into account WP(C) No.7693/2010 -3- the submissions made, Ext.P3 interim order was modified permitting the petitioner to levy an amount not more than Rs.50/as parking charges till the disposal of the complaint. 4. Aggrieved by this order, the petitioner filed Revision Petition No.3/2010 before the Kerala State Consumer Disputes Redressal Commission. The State Commission disposed of the revision by Ext.P6 order permitting the petitioner to levy Rs.250/as parking fee till the disposal of Ext.P1 complaint, and with a further direction to refund the amount to the consumers, after they visit the shop. It is aggrieved by Exts.P5 & P6 orders, this writ petition is filed, praying to quash these orders and to declare that the practice of levying parking fee does not amount to restrictive trade practice or unfair trade practice as defined under Sections 2(1) (nnn) and 2(1)(r) of the Consumer Protection Act, 1986. 5. The prayer of the petitioner to declare that the levy of parking fee will not amount to a restrictive trade practice or unfair trade practice as defined under the Consumer Protection Act, 1986 is premature. The CDRF, Ernakulam, which is seized of the complaint, is yet to finally pronounce on the contentions of the WP(C) No.7693/2010 -4- parties. Even if the issue is finally decided against the petitioner, statute provides for remedies, and therefore, the petitioner will have to await the final disposal of the complaint and pursue her remedies. For that reason, I decline to examine the merits of the complaint or the aforesaid prayer sought in this writ petition. 6. What remains is the correctness or otherwise of Exts.P5 & P6, the interlocutory order passed by the CDRF, Ernakulam and the order passed by the State Commission. As already seen, one of the main prayers sought in Ext.P1 complaint is to declare that the levy of parking fee @ Rs.500/- is an unfair and restrictive trade practice. In I.A.No.14/2010, prayer sought is to forthwith restrain the petitioner from collecting the parking fee. In my view, an order restraining the petitioner from levying the parking fee could have been passed only as a consequential relief, after the declaration sought for is made. Thus by way of the I.A., the prayer sought by the respondent herein is one of the reliefs which could have been granted only at the final stage. It is the settled law that in an interlocutory application, no Court or Forum can grant a relief which could be granted only at the final stage and that any such order WP(C) No.7693/2010 -5- should be passed only at the disposal stage of the proceedings itself. This order, therefore, should not have been passed at the interlocutory stage, when contentions are yet to be dealt with and decided. 7. That apart, there is yet another disturbing aspect arising in this writ petition. By the interim order passed, the petitioner is prevented from collecting parking fee, which was being levied since long. Eventually, if the final decision in the complaint is against the complainant, the petitioner is entitled to be compensated the loss that she would have suffered on account of the restraint orders passed at the instance of the respondent. 8. An interim order is passed on the basis of prima facie findings, which are tentative. Grant of interim orders is governed by the principles; prima facie case, balance of convenience and irreparable injury, which are required to be considered in a proper perspective in the facts and circumstances of each case. The phrases, 'prima facie case, balance of convenience, irreparable loss' are not rhetoric phrases for incantation, but words of width and elasticity to meet myriad situations presented by men's ingenuity in WP(C) No.7693/2010 -6- given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. (Vide Dalpat Kumar v. Prahlad Singh (1992(1) SCC 719). Interim orders should not be granted by Court or a Forum without considering all the pros and cons of the case in a given set of facts involved therein on the risk and responsibility of the party at whose instance it is passed or, in case he loses the case, he cannot take any advantage of the same. (Vide Zenit Mataplast Private Limited v. State of Maharashtra and Others (2009(10) SCC 388). Such order is passed as a temporary arrangement to preserve the status quo till the matter is finally decided and the intention is to ensure that the subject matter does not become either infructuous or a fait accompli before the final hearing. Thus the object of the interim order should be to protect the complainant against injury by violation of his right for which he could not be adequately compensated in damages if the uncertainty were resolved in his favour at the trial. (Vide State of Assam v. Barak Upatyaka D.U. Karmachari Sanstha (2009(5) SCC 694). 9. In Mahadeo Savlaram Shelke and Others v. Pune WP(C) No.7693/2010 -7- Municipal Corporation and Another (1995 (3) SCC 33), the Apex Court has held that while exercising the power, the Court should also adopt the procedure of calling upon the plaintiff to file a bond to the satisfaction of the Court that in the event of his failing in the suit to obtain the relief asked for in the plaint, he could adequately compensate the defendant for the loss ensued due to the order of injunction granted in favour of the plaintiff, and that even otherwise, the Court while exercising its equity jurisdiction has such jurisdiction and power to grant adequate compensation to mitigate the damages caused to the defendant. It was further held that this procedure would act as a check on the abuse of the process of Court and adequately compensate the damage or injuries suffered by the defendant by act of Court at the behest of the plaintiff. In Raunaq International Ltd. v. I.V.R.Construction Ltd. and Others (1999(1) SCC 492), it has been held that the party at whose instance interim orders are obtained must be made accountable for the consequences of the interim order and that in appropriate cases, such parties should be made to furnish security to provide for restitution. WP(C) No.7693/2010 -8- 10. In South Eastern Coalfields Ltd. v. State of M.P. and Others (2003(8) SCC 648), the Apex Court held that the principle, no one shall suffer by an act of the Court is not a rule confined to an erroneous act of the Court; “the act of Court” embraces within its sweep all such acts as to which the Court may form an opinion in any legal proceedings that the Court would not have so acted had it been correctly apprised of the facts and the law. It was held that the factor attracting applicability of restitution is not the act of the Court being wrongful or a mistake or error committed by the Court; the test is whether on account of an act of the party persuading the Court to pass an order held at the end unsustainable, has resulted in one party getting an advantage which it would not have otherwise earned or the other party has suffered an impoverishment which it would not have suffered, but for the order of the Court and the act of such party. It was held that in such cases the quantum of restitution may take into consideration not only what the party excluded would have made, but also what the party under obligation has or might reasonably have made, and that there is nothing wrong in the parties demanding being placed in the same WP(C) No.7693/2010 -9- position in which they would have been, had the Court not intervened by its interim order when at the end of the proceedings the Court pronounces its judicial verdict which does not match with and countenance its own interim verdict. It was held that the injury, if any, caused by the act of the court shall be undone and the gain which the party would have earned, unless it was interdicted by the order of the Court, would be restored to or conferred on the party by suitably commanding the party liable to do so, and that any opinion to the contrary would lead to unjust, if not disastrous, consequences. 11. Thereafter, the Apex Court expressed its concern, as follows:- “Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held WP(C) No.7693/2010 **==> picture [21 x 9] intentionally omitted <==** entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation.” 12. Following the aforesaid judgments, the Apex Court has rendered its judgment in Amarjeet Singh and Others v. Devi Ratan and Others (2010 (1) SCC 417), where the necessity to compensate the loss caused on account of the order passed by the Court at the instance of the plaintiff has been reiterated. 13. The principles laid down in the aforesaid judgments should apply to cases considered by Forums created under the Consumer Protection Act, 1986 also. As already seen, by virtue of Exts.P5 & P6, the petitioner is prevented from realising the parking fee. At the end of the trial, if the complaint is rejected, the petitioner is entitled to be compensated for the loss that has been caused at the instance of the complainant, the respondent herein. No safeguard to protect the interest of the petitioner has been provided either by the CDRF or by the State Commission. Unless safeguards are provided, it will be difficult, if not, impossible, to compensate the petitioner and in any case, the petitioner should not WP(C) No.7693/2010 -11- be made to run from pillar to post to recoup her losses. Neither the CDRF nor the State Commission has adverted to the specific case of the petitioner that the complaint was filed without any bonafides and that the respondent is an employee in a toddy shop and that the vehicle mentioned in the complaint does not belong to him. Therefore, even if this order is to be passed, the absence of such a safeguard is an added reason for this Court to set aside Exts.P5 & P6. For these reasons, I am inclined to set aside Exts.P5 & P6, and I do so. The writ petition is, therefore, disposed of quashing Exts.P5 & P6 orders and clarifying that this Court has not pronounced on the merits of the allegations raised by the respondent in Ext.P1 complaint, and that it is entirely for the CDRF, Ernakulam to decide on the contentions raised by the parties untrammelled by the findings in this judgment. This writ petition is disposed of as above. ## (ANTONY DOMINIC, JUDGE) jg