IDBI Bank v Consumer Disputes Redressal Commission Kannur and Others (WP(C). Nos. 19158/2023 & 19167/2023)

WP(C) NO. 19158 & 19167 OF 2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 13[TH] DAY OF JUNE 2023 / 23RD JYAISHTA, 1945** ## **WP(C) NO. 19158 OF 2023** ## **PETITIONER/S:** IDBI BANK ALFIRA TOWER, POLICE STATION ROAD, PAYYANNUR, KANNUR REPRESENTED BY MANAGER, PIN - 670307 BY ADVS. C.AJITH KUMAR RAJEEVU L.G. ## **RESPONDENT/S:** 1 CONSUMER DISPUTES REDRESSAL COMMISSION KAKKAD ROAD, KANNUR REPRESENTED BY PRESIDENT, PIN - 670002 2 SUMA.B.N (SUMA BALAKRISHNAN NAMBIAR) KUSUMAM, KAPPAD, KANNUR, PIN - 670006 3 AGEAS FEDERAL LIFE INSURANCE COMPANY, (FORMERLY KNOWN AS IDBI FEDERAL LIFE INSURANCE CO. LTD.) 22ND FLOOR, A WING, MARATHON FUTUREX, NM JOSHI MARG, LOWER PAREL EAST, MUMBAI REPRESENTED BY ITS BRANCH MANAGER., PIN – 400013 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.06.2023, ALONG WITH WP(C).19167/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 19158 & 19167 OF 2023 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 13[TH] DAY OF JUNE 2023 / 23RD JYAISHTA, 1945** ## **WP(C) NO. 19167 OF 2023** ## **PETITIONER/S:** IDBI BANK LTD. ALFIRA TOWER, POLICE STATION ROAD, PAYYANNUR, KANNUR REPRESENTED BY MANAGER, PIN - 670307 BY ADVS. C.AJITH KUMAR RAJEEVU L.G. ## **RESPONDENT/S:** 1 CONSUMER DISPUTES REDRESSAL COMMISSION KAKKAD ROAD, KANNUR REPRESENTED BY PRESIDENT, PIN - 670002 2 SUMA.B.N (SUMA BALAKRISHNAN NAMBIAR) KUSUMAM, KAPPAD, KANNUR, PIN - 670006 3 NIVA BUPA HEALTH INSURANCE COMPANY LTD. REGISTERED OFFICE, C-98, FIRST FLOOR, LAJPAT NAGAR PART-I, NEW DELHI REPRESENTED BY MANAGER, PIN – 110024 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.06.2023, ALONG WITH WP(C).19158/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 19158 & 19167 OF 2023 3 ## **P.V.KUNHIKRISHNAN, J** **--------------------------------------W.P.(C.) Nos. 19158 & 19167 of 2023 -------------------------------------Dated this the 13[th] day of June, 2023** ## **JUDGMENT** These two writ petitions are filed by IDBI Bank with almost similar prayers. It will be better to extract the prayers in these writ petitions. ## **W.P.(C.) No. 19158 of 2023** _a) “Issue a Writ of Certiorari or other appropriate Writ, Order or Direction quashing Ext.P8, as it is without jurisdiction. b) Declare that the 1st respondent has no authority or jurisdiction to interfere in the SARFAESI Proceedings initiated by the petitioner, in pursuance to Ext.P5._ _c) To grant such other and further reliefs as this Hon'ble Court may deem fit to grant in the facts and circumstances of the case.” [SIC]_ ## **W.P.(C.) No. 19167 of 2023** _“a) “Issue a Writ of Certiorari or other appropriate Writ, Order_ WP(C) NO. 19158 & 19167 OF 2023 4 _or Direction quashing Ext.P7, as it is without jurisdiction._ _b) Declare that the 1st respondent has no authority or jurisdiction to interfere in the SARFAESI Proceedings initiated by the petitioner, in pursuance to Ext.P4._ _c) To grant such other and further reliefs as this Hon'ble Court may deem fit to grant in the facts and circumstances of the case.” [SIC]_ 2. The impugned orders in these writ petitions are the orders passed by the District Consumer Dispute Redressal Commission, Kannur. Admittedly, the petitioner has got an alternative remedy against these orders before the State Consumer Redressal Forum. This Court considered this point in _**The Controller of Examinations v. Sreya N**_ [2021 (5) KHC 537]. The relevant portion of the above judgment is extracted hereunder : _5. “Even though the Apex Court observed that in certain contingencies, this Court can entertain a writ petition under Article 226 of the Constitution of India, the High Court can use its discretion either to entertain such writ petition or to reject it. Specific averments are necessary in the writ petition for not availing the statutory remedy of appeal when an appealable order is challenged by filing a writ petition under Article 226 of the constitution of India. Simply stating that the authority who_ WP(C) NO. 19158 & 19167 OF 2023 5 _passed the order has no jurisdiction alone is not sufficient to invoke the jurisdiction under Art.226 of the constitution, especially when the appellate authority also can consider the question of jurisdiction. This court need not entertain writ petitions to interfere with orders passed by authorities without jurisdiction in all situations when a statutory remedy is available. This court can use discretion while entertaining such writ petitions considering the facts and circumstances of each case. 6. Here is a case, where Ext.P5 is admittedly an appealable order. When there is a statutory remedy against Ext.P5 order as per the Consumer Protection Act, 2019, this Court need not entertain a writ petition unless there are compelling reasons. The petitioners are the University and its authorities. They can approach the State Commission, instead of filing a writ petition before this Court under Art 226 of the constitution of India. I think there is a camp sitting of the State Commission in some of the centres in Kerala and the principal sitting is at Thiruvananthapuram. Nothing is mentioned in the writ petition which prevents the writ petitioners to move an appeal against Ext.P5 order before the State Commission except the contention that CDRC has no jurisdiction to entertain Ext P1 complaint. Sec.41 of the Act, 2019 deals with appeal against the order of the District Commission. The same is extracted hereunder :_ _“41. Appeal against order of District Commission - Any person aggrieved by an order made by the District Commission may prefer an appeal against such order to the State Commission on the grounds of facts or law within a period of forty-five days from the date of the order, in such form and manner, as may be prescribed:_ WP(C) NO. 19158 & 19167 OF 2023 6 _Provided that the State Commission may entertain an appeal after the expiry of the said period of forty-five 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 District Commission, shall be entertained by the State Commission vunless the appellant has deposited fifty per cent of that amount in the manner as may be prescribed: Provided also that no appeal shall lie from any order passed under subsection (1) of section 81 by the District Commission pursuant to a settlement by mediation under section 80.”_ 3. The counsel for the petitioner submitted that in _**Reghu B. and anr. v. State Bank of Travancore, Tvm. and another**_ [2015 (4) KHC 270], this Court interfered in a similar situation. I am of the considered opinion that these are discretionary power of this Court to be invoked based on the facts and circumstances of each case. When an alternative remedy is available to the petitioner, the petitioner is bound to follow the alternative remedy available as per the Consumer Protection Act. No cogent WP(C) NO. 19158 & 19167 OF 2023 7 reason is mentioned for not availing the alternative remedy. I am of the considered opinion that these writ petitions need not be entertained. The petitioner is free to challenge the impugned order before the appellate authority in accordance to law. With the above observation, these writ petitions are dismissed. **Sd/-** **P.V.KUNHIKRISHNAN JUDGE** SKS WP(C) NO. 19158 & 19167 OF 2023 8 ## **APPENDIX OF WP(C) 19167/2023** PETITIONER EXHIBITS Exhibit-P1 TRUE COPY OF THE C.C NO.204/2022 DATED 17/08/2022 FILED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT (WITHOUT EXHIBITS) - Exhibit-P2 TRUE COPY OF THE VERSION FILED BY THE PETITIONER IN EXT.P1 - Exhibit-P3 TRUE COPY OF THE LOAN RECALL NOTICE DATED 08/11/2022 ISSUED BY PETITIONER TO THE 2ND RESPONDENT Exhibit-P4 TRUE COPY OF THE NOTICE DATED 25/11/2022 ISSUED UNDER SECTION 13(2) OF THE SARFAESI ACT BY THE PETITIONER, TO THE 2ND RESPONDENT Exhibit-P5 TRUE COPY OF THE I.A NO.292/2022 IN C.C NO.204/2022 FILED BY 2ND RESPONDENT BEFORE THE 1ST RESPONDENT Exhibit-P6 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO EXT.P5 Exhibit-P7 TRUE COPY OF THE ORDER DATED 21/12/2022 IN EXT.P1 PASSED BY 1ST RESPONDENT WP(C) NO. 19158 & 19167 OF 2023 9 ## **APPENDIX OF WP(C) 19158/2023** PETITIONER EXHIBITS |Exhibit-P1|TRUE COPY OF THE LETTER DATED 19/02/2022| |---|---| ||ISSUED BY 3RD RESPONDENT TO THE 2ND| ||RESPONDENT| |Exhibit-P2|TRUE COPY OF THE C.C NO.199/2022 DATED| ||20/12/2022 FILED BY THE 2ND RESPONDENT| ||BEFORE 1ST RESPONDENT (WITHOUT EXHIBITS)| ||ALONG WITH COPY OF SUMMONS RECEIVED FROM| ||1ST RESPONDENT.| |Exhibit-P3|TRUE COPY OF THE VERSION FILED BY THE| ||PETITIONER TO EXT.P2| |Exhibit-P4|TRUE COPY OF THE LOAN RECALL NOTICE DATED| ||08/11/2022 ISSUED BY PETITIONER TO THE| ||2ND RESPONDENT| |Exhibit5|TRUE COPY OF THE NOTICE DATED 25/11/2022| ||ISSUED UNDER SECTION 13(2) OF THE| ||SARFAESI ACT BY THE PETITIONER, TO THE| ||2ND RESPONDENT| |Exhibit-P6|TRUE COPY OF THE I.A NO.291/2022 IN C.C| ||NO.199/2022 FILED BY 2ND RESPONDENT| ||BEFORE THE 1ST RESPONDENT| |Exhibit-P7|TRUE COPY OF THE OBJECTION FILED BY THE| ||PETITIONER TO EXT.P6| |Exhibit-P8|TRUE COPY OF THE ORDER DATED 20/12/2022| ||IN EXT.P2, PASSED BY THE 1ST RESPONDENT,|