Radakrishnan v. Kerala State Consumer Disputes Redressal Commission and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 11[TH] DAY OF JULY 2023 / 20TH ASHADHA, 1945 CRL.MC NO. 5241 OF 2018`** ## **`AGAINST C.C. NO.31/2013 OF KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM`** ## **`PETITIONER/S:`** ``` RADHAKRISHNAN AGED65YEARS THEKKENALUVAZHI(H),NORTHPARAVUR, ERNAKULAM. BYADVS. SRI.K.R.VINOD SMT.M.S.LETHA 1KERALASTATECONSUMERDISPUTESREDRESSALCOMMISSION REPRESENTEDBYIT'SREGISTRAR, VAZHUTHACADU,THIRUVANANTHAPURAM-695001. 2JAMESANTONY S/O.ANTONY,CHIRAYATH(H),KOTHAMANGALAMP.O, ERNAKULAM-686691. 3ELSAMMAJAMES W/O.JAMESANTONY,CHIRAYATH(H), KOTHAMANGALAM.P.O,ERNAKULAM-686691. BYADVALEXANDERJOSEPH SMT.NEEMATV,SR.P.P. SRI.ALEXANDERJOSEPH,COUNSELFORRESPONDENTNO.2AND3 ``` ## **`RESPONDENT/S:`** ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 11.07.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C No.5241 of 2018 2 ## **ORDER** This petition is filed seeking to quash the order dated 26.7.2018 in EP No.14/2015 in C.C.No.31/2013 passed by the Kerala State Consumer Disputes Redressal Commission. The petitioner has also sought a direction to the 1st respondent to comply with the mandatory provisions of Section 27 of the Consumer Protection Act 1986 and release the petitioner on executing necessary bond until the finality of proceedings under Section 27(2) of the Consumer Protection Act 1986. 2. Short facts of the case are as under : The party respondents herein instituted C.C No.31/2013 before the State Consumer Disputes Redressal Commission. In their complaint, they contended that there was an agreement with the petitioner herein on 15.03.2011, as per which the petitioner is stated to have agreed to construct a villa at Guruvayoor and hand over the same on or before 27.11.2013. It is stated that the complainants paid a sum of Rs.85,75,000/- to the petitioner herein. However, the petitioner failed to construct the villa and transfer possession to the complainants. The petitioner appeared before the State Commission and admitted the receipt of the amount from the complainants. After taking Crl.M.C No.5241 of 2018 3 evidence, the State Commission allowed the complaint and directed the petitioner herein to refund a sum of Rs.84,35,000/- with interest at 15% per annum from 27.11.2014 till realization. 3. It appears that the petitioner herein did not comply with the directions in the judgment. In the said circumstances, the party respondents filed E.P. No.14/2015 before the State Commission. Though notice was served to the petitioner, he did not appear before the State Commission and contest the matter. In the said circumstances, a warrant of arrest was issued. The petitioner was arrested, and he was produced before the State Commission. He stated before the Commission that he was prepared to remit a substantial portion of the amount payable to the complainants if ten days’ time is granted. 4. In the said circumstances, the State Commission granted time till 07.08.2018, and the petitioner herein was remanded till 08.08.2018 with a specific direction to produce the petitioner on such day. 5. Challenging the order passed by the State Commission, the petitioner approached this Court and filed this petition. Interestingly, a defect was noted by the Registry as regards the maintainability of this petition. However, this Court directed that the petition be numbered and thereafter, by order dated 6.8.2018, ordered the release of the petitioner from custody with Crl.M.C No.5241 of 2018 4 a specific direction to appear before the Commission on 8.8.2018 and apply for bail. 6. On 08.8.2018, the matter was again taken up by the State Commission. The petitioner appeared as ordered, and when he was asked the reason for non-compliance with the directions in C.C. No.31/2013, he stated that he was suffering from various ailments and his medical condition is such that he is not in a position to comply with the order. 7. After considering the explanation offered and the facts and circumstances, the commission was of the view that the petitioner herein has intentionally and without reasonable cause flouted the order passed by the Commission. Accordingly, the petitioner herein was convicted under Section 27 of the Consumer Protection Act, 1986, and he was sentenced to undergo simple imprisonment for a period of one year under Section 27 of the Act. Immediately thereafter, the petitioner moved this Court, and by order dated 10.8.2018, the execution of the order passed by the Commission was stayed, and the petitioner was released on bail on his executing a bond for Rs.1 lakh. 8. I have heard the learned counsel appearing for the petitioner, the learned counsel appearing for the party respondents, and the learned Public Prosecutor. Crl.M.C No.5241 of 2018 5 9. The learned counsel appearing for the petitioner submitted that the procedure followed by the State Commission is clearly illegal. According to him, in terms of the provisions of Section 27(2) of the Consumer Protection Act, the State Commission was exercising the powers of a Judicial Magistrate, and if the petitioner violated the order passed by the State Commission, the 1st respondent ought to have framed charge against the petitioner, and he must have been granted an opportunity to furnish an explanation. 10. In response, the learned counsel appearing for the party respondents has painstakingly highlighted the sequence of events. According to the learned counsel, Section 27 of the Act gives power to the redressal agency to execute orders and to enforce the same by ordering imprisonment or fine, or with both. This is to ensure the expeditious enforcement of the order passed by the Commission. The only requirement is that the affected party must be given an opportunity of being heard. By referring to the orders passed, the learned counsel points out that on 26.7.2018 and on 8.8.2018, the Commission had afforded an opportunity to the petitioner to furnish his objections. As there was no other way to secure the implementation of the order, the Commission had to resort to the provisions of Section 27 of the Act. It is further submitted that the order passed by the State Commission can only Crl.M.C No.5241 of 2018 6 be assailed by preferring an appeal before the National Commission, and in view of the statutory remedy available to the petitioner, this petition under Section 482 of the Code is not maintainable. Referring to the reliefs sought in this petition, the learned counsel would point out that what has been challenged in this petition is the order dated 26.7.2018 in E.P.No.14/2015. The petitioner has also not preferred an appeal before the National Commission challenging the judgment passed by the State Commission in C.C.No.31/2013 or the order dated 8.8.2018 passed in E.P.No.14 of 2015. He would also point out that the amount ordered by the Commission has not been paid to date. 11. I have considered the submissions advanced and have perused the records. 12. The main contention of the learned counsel appearing for the petitioner is that the order dated 26.7.2018 issued by the State Commission remanding the petitioner till 8.8.2018 is illegal on the ground that the State Commission, while proceeding under Section 27 of the Act, 1986, ought to have framed the charge and conducted a trial. 13. The manner of enforcement of orders passed by the Commission and the imposition of penalties under Section 27 of the Act had come up before a Division Bench of this Court in **Venugopal v. Sub Inspector of** Crl.M.C No.5241 of 2018 7 ## **Police** [2000 (2) KLT 395]. It was observed as follows in paragraph Nos.6 to 8 of the judgment: 6. The validity of Section 27 of the Act was challenged, but was repelled by this Court in several cases, two of the reported decisions being Joseph v. Union of India (1997 (2) KLT 600) and Jancy Joseph v. Union of India (1999 (1) KLT 422). 7. While Section 25 provides for execution of orders of the three redressal agencies, S. 27 provides for penalties in the event of failure or omission in complying with their duties. Though Sections. 25 and 27 are independent provisions, the affected party may invoke either or both of them. Legislature being conscious of the delays that are caused by judgment debtors at the time of execution, has in its wisdom enacted S. 27; so that the decree holder if he so wishes, has the option of prosecuting the judgment debtor in case of failure to pay the decreetal amount. The two provisions can be co-related and are in the nature of execution proceedings. While the former visualises enforcement of the order by a civil process as if they were decree or order made by a Court of law, latter confers quasi-criminal sanction for their enforcement by way of punishment with imprisonment or imposition of monetary penalties. 8. S. 27 gives power to the redressal agency to execute orders by itself. In case a party to a dispute refuses to comply with order of the agency, it can enforce the order by ordering imprisonment or fine or with both. This power is given for expeditious enforcement of the order. As indicated above, on account of the long delay in attaining finality of execution process with the hierarchy of appeals and revisions under the Code, the entire object of the Act will be frustrated. As the Act itself is enacted to provide for better protection of the interest of customers, recourse to S. 25 and the Code would invariably involve time consuming processes and, therefore, S. 27 power is available to an aggrieved party. Crl.M.C No.5241 of 2018 8 It is an effective remedy for enforcement of the orders passed by redressal agencies. Under the Code, if a person is unable to pay the amount in respect of money decreed against him, in execution he can be sent to prison. There is no such requirement under S. 27. But, this is a defence which redressal agency is required to consider, if raised, while moulding final order under S. 27. Before passing the order, parties are to be given opportunity to file objections. Learned Single Judge in Jancy Joseph's case (supra) observed that arrest can be ordered only if it is found that persons concerned had means to pay and they are neglecting to pay the amount. For this purpose, reliance was placed in Jancy Joseph's case (supra) and Registrar, University of Madras v. Union of India (1996 CCJ 668). It is to be noted that in the Madras case, it was not held that provisions of Code are applicable even when S. 27 of the Act is invoked. On the contrary it was observed as follows: "The provision is only similar to S. 51(c) of the Code of Civil Procedure and the dicta of the Supreme Court in Jolly George Varghese v. Bank of Cochin, (AIR 1980 SC 470)s relating to arrest and execution proceedings in cases arising under the Code of Civil Procedure will certainly be borne in mind by the District Forum or Commission when its powers under S. 27 are exercised......." In other words, what the Madras High Court held cannot be understood to mean that provisions of the Code are made applicable when powers under S. 27 of the Act are exercised. In Jolly George Varghese's case (supra), Apex Court held that simple default to discharge the decree is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or alternatively current means to pay the decree or a substantial part of it. The provision emphasises the need to establish not mere omission to pay, but an attitude of refusal or demand verging on dishonest disowning of obligation under the decree. Crl.M.C No.5241 of 2018 9 14. The Division Bench had held that before passing orders under Section 27, the parties should be permitted to file their objections. In the case on hand, after Annexure-A2 order was passed on 26.7.2018, the case was posted on 8.8.2018 and it was on the said day after hearing the objections of the petitioner that the order dated 8.8.2018 was passed. I find that the order dated 8.8.2018 has not been challenged before this Court. The order passed by the Commission awarding the amount is also not under challenge. As held by this Court in **Regional Cancer Centre, Trivandrum v. Kerala State Consumer Redressal Commission, Trivandrum and Ors.** [2021 (5) KHC 236], Section 21(b) of the Consumer Protection Act, 1986 enables the National Commission to call for the records and pass appropriate orders in any consumer disputes which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity. This Court has clearly held that even a writ petition under Article 226 of the Constitution of India need not be entertained in view of the self-contained provisions under the Consumer Protection Act. The remedy for the petitioner was to approach the National Crl.M.C No.5241 of 2018 10 Commission challenging the judgment or the order dated 8.8.2018 if the petitioner was in any way aggrieved. As the petitioner has not challenged the order dated 8.8.2018 even before this Court and as the subsequent order has superseded the order dated 26.7.2018, no relief can be granted to the petitioner in this case. Leaving open the remedies, if any, available to the petitioner, this petition is closed. It would be open to the party respondents to approach the State Commission for enforcement of the orders. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** NS Crl.M.C No.5241 of 2018 11 ## **`APPENDIX OF CRL.MC 5241/2018`** ``` PETITIONERANNEXURES: ``` ``` ANNEXUREA1 ``` ``` THECOPYOFTHEORDERINI.P.NO.1/2013DATED 27.07.2017OFSUBCOURT,CHAVAKKADU ``` ``` ANNEXUREA2THECERTIFIEDCOPYOFTHEORDERDATED 26.07.2018OFTHE1STRESPONDENT. ```