Lulu International Shopping Mall Private Limited v. District Consumer Disputes Redressal Forum, Ernakulam

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 7TH DAY OF MARCH 2018 / 16TH PHALGUNA, 1939** **WP(C).No. 6461 of 2018** **PETITIONER:** **LULU INTERNATIONAL SHOPPING MALL PRIVATE LIMITED, REPRESENTED BY ITS DIRECTOR AND AUTHORISED SIGNATORY M.A. NISHAD, EDAPPALLY, KOCHI - 682 024.** **BY ADVS.SRI.P.K.SURESH KUMAR (SR.) SRI.T.U.ZIYAD SMT.RAMEENA.P.K.** **RESPONDENTS:** **1. D.B.BINU, 2ND FLOOR, FATHIMA PLAZA, PROVIDENCE ROAD, ERNAKULAM, KOCHI - 682 018. 2. THE DISTRICT CONSUMEER DISPUTES REDRESSAL FORUM, ERNAKULAM, REPRESENTED BY ITS SECRETARY, KATHRIKADAVU ROAD, KALOOR, KOCHI - 682 017.** **R1 BY ADVS. SRI.G.KIRAN SRI.M.KIRANLAL R2 BY GOVERNMENT PLEADER SRI.P.N.MANOJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 6461 of 2018 (G)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 THE TRUE COPY OF THE COMPLAINT DATED 12-04-2017 IN CC NO.160/2017 ON THE FILE OF CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM EXHIBIT P2 THE TRUE COPY OF THE VERSION DATED 24-06-2017 FILED BY THE PETITIONER IN CC NO.160/2017 ON THE FILE OF CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM EXHIBIT P3 THE TRUE COPY OF THE JUDGMENT DATED 2-3-2016 IN WP(C) NO.6608/2016 OF THIS HON'BLE COURT. EXHIBIT P4 TRUE COPY OF THE GOVERNMENT ORDER NO. 13270/RD2/2012-LSGD DATED 3-3-2012** ## **RESPONDENT(S)' EXHIBITS** **EXHIBIT R1(A) TRUE COPY OF THE PROCEEDINGS OF THE CONSUMER DISPUTES REDRESSAL FORUM AT ERNAKULAM DATED 27.02.2018.** **TRUE COPY** **P.S. TO JUDGE** **EL** **22.3.2018** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.6461 of 2018 ----------------------------------------------Dated this the 7[th] day of March, 2018** ## **JUDGMENT** This writ petition is filed by the petitioner, which is a Private Limited Company, seeking direction to the 2[nd] respondent Consumer Disputes Redressal Forum, Ernakulam to refrain from disposing of C.C.No.160/2017 on its file without giving a proper opportunity for the counsel for the petitioner to cross-examine the complainant, and also for arguing the matter on merits. Material facts for the disposal of the writ petition are as follows: 2. Petitioner is the first opposite party in C.C.No.160 of 2017 on the files of the 2[nd] respondent. The complaint is filed by the 1[st] respondent, alleging that the sale of carry bags at Lulu Hyper Market run by the petitioner is an unfair trade practice. True copy of the complaint is produced as Ext.P1. Upon receipt of notice, petitioner entered appearance before the Forum on 24.05.2017 and sought time to file its version. On 27.06.2017, petitioner filed its version and also filed a petition challenging the maintainability of the complaint. A 2 **W.P.(C) No.6461 of 2018** true copy of the version is produced as Ext.P2. On 26.10.2017, the 2[nd] respondent has passed an order stating that the maintainability would be considered at the time of final hearing. Thereafter, on 14.12.2017, the complainant filed proof affidavit and the matter was posted for evidence on 16.12.2017. On that day, the case was adjourned by the Forum for production of paper publication by the complainant, as the complainant has filed the complaint as a class action. On 25.01.2018, the paper publication was produced by the complainant and thereupon, the case was posted to 31.01.2018. On that day, a third party applied for intervention in the matter and it was allowed and the case was adjourned to 22.02.2018. 3. On 22.02.2018, the matter was taken up and a request was made by the counsel for the petitioner seeking time for cross-examination of the complainant, which was declined. It is also the case of the petitioner that, P.K. Rameena, Advocate who appeared for the petitioner made a fervent plea before the Forum that the case be passed over and she should be allowed to cross-examine the complainant. She also submitted before the Forum that her senior Mr. T.U. 3 **W.P.(C) No.6461 of 2018** Ziyad would reach by that time, and his arguments may also be heard. However, the 2[nd] respondent did not permit the request made by the petitioner and closed the matter, orders were reserved and posted to 27.02.2018. 4. According to the petitioner, in the year 2016, 2[nd] respondent has passed an order against the petitioner with regard to the parking fee charged on vehicles parked in the basement of Lulu Shopping Mall. In the said matter, an _ex parte_ interim order was passed against the petitioner restraining it from collecting any parking fee. Thereupon, petitioner approached this Court by filing W.P.(C) No.6608 of 2016. In the said writ petition, it was pointed out before this Court that the parking fee receipt produced in respect of the vehicle alleged to be owned by the complainant therein was actually one belonging to a member of the 2[nd] respondent itself. In the said context, petitioner had raised certain allegations of prejudice against the members of the Forum. Anyhow, Ext.P3 judgment was rendered by this Court, nullifying the interim order passed by the Forum, and the case was transferred to the District Forum, Kottayam. Therefore, according to the petitioner, there is reason for animosity and 4 **W.P.(C) No.6461 of 2018** prejudice towards the petitioner by the members of the Forum and that is being exhibited in the present case. 5. A detailed counter affidavit is filed by the 1[st] respondent, refuting the allegations and claims and demands raised by the petitioner. According to the 1[st] respondent, petitioner has raised incorrect and false facts to mislead this Court regarding the Consumer Disputes Redressal Forum at Ernakulam, denying the opportunity to them for crossexamination of the 1[st] respondent. It is also contended that, on 22.02.2018, the complainant was present before the Forum ready for cross-examination and was directed to enter the box for cross-examination of opposite parties. The petitioner was represented by its counsel P.K. Rameena. However, the 1[st] respondent was not cross-examined. Various other contentions are raised by the 1[st] respondent based on Sec.13 of the Consumer Protection Act, 1986, and the realm of interference of this Court under Article 226 of the Constitution of India. It is also pointed out the judgment of the apex court in ' _**Cicily Kallarackal v. Vehicle Factory**_ ' [(2012) 8 SCC 524], wherein, interference in the orders passed by a Consumer Forum, under Article 226 of the Constitution of **W.P.(C) No.6461 of 2018** 5 India, is deprecated. 6. I have heard learned senior counsel for the petitioner and the learned counsel appearing for the 1[st] respondent. Perused the documents on record and the pleadings put forth by the respective parties. 7. The fact discussions made above would make it clear that the issue raised in this writ petition is with respect to denial of opportunity to the petitioner to cross-examine the 1[st] respondent complainant before the Forum. It is admitted that the counsel representing the petitioner was in court, however, sought time. Therefore, according to the learned Senior Counsel for the petitioner, only a pass over was sought in order to cross-examine the complainant by the advocate of the petitioner viz., T.U. Ziyad. However, the Forum refused to pass over the case and thereby opportunity was denied for cross-examination of the complainant. Moreover, it is contended that, the petitioner herein has got every right to adduce evidence before the Forum so as to have a complete adjudication on the issues raised in the complaint. As I have pointed out earlier, petitioner was before this Court and has secured Ext.P3 judgment. However, I am not making any 6 **W.P.(C) No.6461 of 2018** comment on the allegations with respect to the animosity nurtured by the 2[nd] respondent Forum against the petitioner, since they are all depending on various factual circumstances. 8. It is true, learned counsel for the 1[st] respondent has strenuously contended that the petitioner has got a remedy in accordance with the provisions of the Consumer Protection Act, 1986. Moreover, the conditions contained under Sec.13 of Act, 1986 are imperative and that the petitioner should have crossexamined the complainant when he was present before the Forum. It is also contended that, failure on the part of the petitioner's counsel to cross-examine the complainant is causing lot of prejudice to the 1[st] respondent. In my considered opinion, the learned counsel for the petitioner before the Forum has asked only for pass over of the matter. Even though the apex court has deprecated the practice of interfering with the orders of the Consumer Forum, under Article 226 of the Constitution of India, in my considered opinion, when there is traversity of justice and unfairness on the part of the 2[nd] respondent, there is every power vested with this Court under Article 226 of the Constitution of India to entertain and correct the same in order to have a wholesome **W.P.(C) No.6461 of 2018** 7 adjudication of the issue. It is only necessary and imperative that the opposite party is given an opportunity to crossexamine the complainant, which is the basic, fundamental and statutory requirement of law. When the petitioner's counsel has asked for pass over of the mater, the Forum ought to have obliged in order to entertain and accommodate a counsel. 9. Moreover, respondent has produced AnnexureR1(a), the order sheet of the proceedings in the complaint in question. The case was posted on 24.05.2017, 27.06.2017 and 22.08.2017 and on all days, the complainant was absent before the Forum. On 26.10.2017, the case was posted for trial in the special list, and posted to 16.11.2017. On 16.11.2017, complainant was absent and hence adjourned to 14.12.2017. Thereafter, the case was posted on various dates. On 31.01.2018, the complainant was absent and it is pertinent to note that, in all these posting dates, the petitioner herein was represented through counsel. 10. Taking into account the respective submissions made across the Bar by the respective counsel, perusing the pleadings and the documents on record, and reckoning the factual circumstances referred to above, I am of the 8 **W.P.(C) No.6461 of 2018** considered opinion that, situation justifies this Court to interfere in the matter and provide an opportunity to the petitioner to cross-examine the 1[st] respondent. I am also informed that the case stands posted to 04.04.2018, which is also evident from Ext.R1(a) proceedings sheet. 11. Therefore, there will be a direction to the 2[nd] respondent to provide an opportunity to the petitioner to cross-examine the 1[st] respondent on 04.04.2018, provide reasonable opportunity to both the parties to contest the proceedings, and attain finality at the earliest possible time, in accordance with law. The writ petition is allowed to the above extent. Sd/- **SHAJI P. CHALY JUDGE** St/21.03.2018