Sadhana Gilbert and Salomi Abraham v. State of Kerala and Ors (W.P.(C) Nos.34564/2017, 34782/2015 & 13902/2018)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 18[TH] DAY OF JULY 2022 / 27TH ASHADHA, 1944** ## **WP(C) NO. 34564 OF 2017** ## **PETITIONERS:** **SADHANA GILBERT AGED 52 YEARS W/O. GILBERT,GISA BHAVAN, PONEKKARA, NEAR PONEL CHURCH, ELAMAKKARA,ERNAKULAM DISTRICT BY ADV SRI.K.S.ARUN KUMAR** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2 JESSY MICHAEL W/O. MICHAEL GEORGE, RESIDING AT VARKIL HOUSE, PALARIVATTOM P.OKOCHI 25 POWER OF ATTORNEY HOLDER MICHAEL GEORGE S/O. GEORGERES. AT VAVATIL HOUSE, PERINGOOT ROAD, PALARIVATTOM P.O, KOCHI 25 BY ADVS. SRI.C.V.MANUVILSAN SMT.K.VIDYA SRI.VINODE V. LUKA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.07.2022, ALONG WITH WP(C).34782/2015 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.34564/2017, 34782/2015 & W.P.(C) No.13902/2018 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 18[TH] DAY OF JULY 2022 / 27TH ASHADHA, 1944** ## **WP(C) NO. 34782 OF 2015** ## **PETITIONER:** **SADHANA GILBERT AGED 52 YEARS W/O.GILBERT, GISA BHAVAN, PONEKKARA, NEAR PONEL CHURCH, ELAMAKKARA, ERNAKULAM DISTRICT. BY ADVS. SRI.K.S.ARUN KUMAR SMT.T.V.ANITHA SRI.M.S.DILEEP SMT.M.N.MAYA SMT.RESMI THOMAS SRI.P.A.VIBIN** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 SHEENA ANTON W/O.JOSE JOSEPH, NADUKANIYIL HOUSE, KUDAKKACHIRA P.O., KOTTAYAM - 686 635, REPRESENTED BY HER HUSBAND POWER OF ATTORNEY HOLDER JOSE JOSEPH, S/O.JOSEPH, NADUKANIYIL HOUSE, KUDAKKACHIRA P.O., KOTTAYAM DISTRICT. BY ADVS. SRI.K.P.HARISH, GOVERNMENT PLEADER SRI.C.V.MANUVILSAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.07.2022, ALONG WITH WP(C).13902/2018, 34564/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.34564/2017, 34782/2015 & W.P.(C) No.13902/2018 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 18[TH] DAY OF JULY 2022 / 27TH ASHADHA, 1944** **WP(C) NO. 13902 OF 2018** ## **PETITIONER:** **SALOMI ABRAHAM W/O.JIJO K.CYRIAC, KOKATTUMUNDACKAL HOUSE, EDAMATTOM P.O., KOTTAYAM-686588, REPRESENTED BY HER POWER OF ATTORNEY HOLDER JIJO SYRIAC, AGED 42 YEARS, S/O.KURIAN MATHAI, KOKATTUMUNDACKAL HOUSE, EDAMATTOM P.O., KOTTAYAM-686578 BY ADVS. SRI.P.CHANDRASEKHAR SRI.C.V.MANUVILSAN SMT.K.VIDYA SRI.VINODE V. LUKA** ## **RESPONDENTS:** **1 SMT. SADHANA GILBERT W/O.GILBERT, GISA BHAVAN, PONEKKARA, NEAR PONEL CHURCH, ELAMAKKARA, ERNAKULAM-682026. 2 THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM ERNAKULAM, REPRESENTED BY ITS SENIOR SUPERINTENDENT, OFFICE NEAR GOVERNMENT HOMOEO HOSPITAL, PULLEPADY ROAD, KATHRIKADAVU, KALLOOR, ERNAKULAM, KERALA-682017. BY ADVS. SRI.K.S.ARUN KUMAR FOR R1** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.07.2022, ALONG WITH WP(C).34782/2015 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.34564/2017, 34782/2015 & W.P.(C) No.13902/2018 4 ## **JUDGMENT** ## **Dated this the 18[th] day of July, 2022** The captioned writ petitions are materially connected in respect of execution proceedings and warrant issued by the Consumer Disputes Redressal Forum, Ernakulam against the petitioner in W.P.(C) No.34782/2015 and 34564/2017. W.P.(C) No.13902/2018 is filed by the complainant before the Consumer Disputes Redressal Forum, Ernakulam in Complaint No.226/2010 and the petitioner in ST No.33/2013 filed for execution of Exhibit P1 order dated 17[th] December, 2014 in CC No.226/2010 ; whereby the Consumer Disputes Redressal Forum, Ernakulam found that the petitioner in the connected writ petition has committed offence punishable under section 27 of the Consumer Protection Act, 1986 and sentenced to undergo simple imprisonment for one year and pay a fine of Rs.10,000/- payable to the petitioner in W.P.(C) No.13902/2018. 2. Apparently, the accused has not preferred any appeal or revision before the appellate or revisional authority under the Consumer Protection Act, 1986, however, has filed writ petitions stating that the warrant is issued against a woman, which is against the judgment of a Division Bench of this Court in **Mary Chacko v. Jancy Joseph** [2005 KHC 1042]. Therefore, stay was granted by this Court against the execution of the warrant in both the writ petitions filed by the accused, which is still in force. Be that as it may, the learned counsel appearing for the complainant/writ W.P.(C) Nos.34564/2017, 34782/2015 & W.P.(C) No.13902/2018 5 petitioner in W.P.(C) No.13902 of 2018 has submitted that the law laid down by the Division Bench in **Mary Chacko** supra is no more a good law in view of a Full Bench judgment of this Court in **Veena Madhukant v. State Bank of India and Others** [2007(4) KHC 189] wherein **Mary Chacko's case** (supra) was held to be rendered per incuriam. The relevant portion of the said judgment reads thus: “18. In Mary Chacko v Jancy Joseph, 2005 KHC 1042 :2005 (2) KLJ 730: ILR 2005 (3) Ker 855 :AIR 2005 Ker 291 :2005 (3) KLT 925, the question before the Court was whether a woman can be arrested in execution of an order passed under S.27 of the Consumer Protection Act, 1986. In the said case, two issues were raised before the Court . One was for a declaration that S 27 of the Consumer Protection Act, 1986 is ultra vires and unconstitutional and for a declaration that the petitioner being a woman cannot be arrested and detained by the consumer forum in exercise of the powers under S.27 of the Act. The Court while answering the issues raised has observed that the consumer forum while executing its order under S.27 of the Consumer Protection Act has to keep in its view the provisions of S.56 of the Code of Civil Procedure which states that the Court shall not order the arrest and detention of a woman in civil prison in execution of a decree for payment of money. The Court also has referred to the observations made in Cyril Britto's case (supra) and has observed that the principle laid down in S.56 cannot be imported when money is sought to be realised under the Recovery of Debts due to Banks and Financial Institutions Act. Again with great respect, we may say that the observation is only an obiter and that also suffers from the same difficulty. There is no reference to the relevant provision, namely S.29 of the Act. Thus, Mary Chacko's case (supra) is also to be distinguished as one rendered per incurium. That apart, provisions of the Consumer Protection Act cannot be equated with that of the Recovery of Debts due to Banks and Financial Institutions Act especially when the order that has been passed is one for realisation of money.” W.P.(C) Nos.34564/2017, 34782/2015 & W.P.(C) No.13902/2018 6 3. Therefore, it can be seen that the challenge made to the warrant issued by the Consumer Disputes Redressal Forum, Ernakulam against the accused/opposite party cannot be said to be legal and in accordance with the provisions of the Consumer Protection Act, 1986. This we say because, under the Act, 1986, there are clear provisions with respect to the manner in which its orders are to be enforced and it was by following the procedure contemplated under the said provisions that summary trial case was registered by the Forum and accordingly, punished the accused. 4. In my considered opinion, the petitioner/accused has not made out any case for interference with the orders passed by the Consumer Forum, there being no illegality or arbitrariness on the part of the Forum in passing the orders and consequential issuance of warrant. Therefore, the reliefs sought for in W.P.(C) No. 34564/2017 & 34782/2015 seeking to quash Exhibit P3 order dated 5[th] day of October, 2017 & 30[th] day of October, 2015 are respectively declined. However, in view of the pendency of this matter, before this Court for the past more than 4 years, I think it is only appropriate that an opportunity can be given to the petitioner to appear before the Consumer Forum and participate in the proceedings. Accordingly, the writ petitions are disposed of directing the petitioner/accused in W.P.(C) No.34782/2015 & 34564/2017 to appear before the Consumer Disputes Redressal Forum, Ernakulam in the proceedings in question on 4.8.2022 and seek appropriate orders in accordance with law, failing which, the Forum will be at liberty to take appropriate action in accordance with the provisions of the act in force. W.P.(C) Nos.34564/2017, 34782/2015 & W.P.(C) No.13902/2018 7 In view of the directions contained above, W.P.(C) No.13902/2018 is disposed of directing the Forum to take appropriate action in accordance with law, if the accused/writ petitioner is not appearing before the court as directed above, at the earliest possible time. **Sd/-** **SHAJI P.CHALY JUDGE** smv W.P.(C) Nos.34564/2017, 34782/2015 & W.P.(C) No.13902/2018 8 ## **APPENDIX OF WP(C) 34564/2017** **PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE SUMMONS DATED 08/01/2015 EXHIBIT P2 TRUE COPY OF THE JUDGEMENT IN WPC NO 12344/2016 DATED 31/03/2016 EXHIBIT P3 TRUE COPY OF THE ORDER DATED 05/10/2017 OF THE CONSUMEER DISPUTES REDRESSAL FORUM, ERNAKULAM** W.P.(C) Nos.34564/2017, 34782/2015 & W.P.(C) No.13902/2018 9 ## **APPENDIX OF WP(C) 34782/2015** ## **PETITIONER'S EXHIBITS** **P1. TRUE COPY OF THE SUMMONS DATED 08.01.2015. P2. TRUE COPY OF THE PROCEEDINGS SHEET. P3. TRUE COPY OF THE ORDER DATED 30.10.2015 OF THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM. P4. TRUE COPY OF THE DD OF RS.10,000/- DATED 30.10.2015. P5. TRUE COPY OF THE DD OF RS.10,000/- DATED 30.10.2015.** W.P.(C) Nos.34564/2017, 34782/2015 & W.P.(C) No.13902/2018 10 ## **APPENDIX OF WP(C) 13902/2018** |**PETITIONER'S EXHIBITS**|| |---|---| |**EXHIBIT P1**|**A TRUE PHOTOCOPY OF THE ORDER DATED 17.12.2014 IN ST**| ||**33/13 IN CC NO.226/2010 OF HONOURABLE DISTRICT CONSUMER**| ||**DISPUTES REDRESSAL FORUM, ERNAKULAM.**| |**EXHIBIT P2**|**A TRUE PHOTOCOPY OF THE MEMORANDUM OF WRIT PETITION, VIDE**| ||**W.P.C.NO.12344/2016, TOGETHER WITH ALL EXHIBITS.**| |**EXHIBIT P3**|**A TRUE PHOTOCOPY OF THE JUDGMENT DATED 31.03.2016 IN**| ||**W.P.C.NO.12344/2016.**|