Shanmughan v Peninsula Chits (P) Ltd

``` OP(C) NO. 444 OF 2023 ``` ``` 1 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 21[ST] DAY OF FEBRUARY 2023 / 2ND PHALGUNA, 1944 OP(C) NO. 444 OF 2023 ``` ``` AGAINST THE ORDER IN I.A. NO.8/2022 IN O.S. 385/2018 OF PRINCIPAL MUNSIFF COURT,IRINJALAKUDA ``` ## **`PETITIONER/PETITIONER/DEFENDANT:`** ``` SHANMUGHAN AGED 81 YEARS S/O. KRISHNAN, AYRADA HOUSE, PERINGAOTTUKARA P.O, THANYAM VILLAGE, THRISSUR DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER SHYNI, AGED 43 YEARS, WIFE OF SHAJI, RESIDING AT AYRADA HOUSE, PERINGAOTTUKARA P.O, THANYAM VILLAGE, THRISSUR DISTRICT, PIN - 680565 ``` ``` BY ADV N.L.BITTO ``` ## **`RESPONDENT/RESPONDENT/PLAINTIFF:`** ``` THE PENINSULA CHITS (P) LTD IRINJALAKUDA DESOM, IRINJALAKUDA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRAICT, REPRESENTED BY MANAGING DIRECTOR, A.D.FRANCIS, AGED 54, S/O. DEVASSY, AZHCHANGATTIL HOUSE, KARUVANNUR DESOM, KARUVANNUR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN - 680121 ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 444 OF 2023 ``` ``` 2 ``` ## **JUDGMENT** Aggrieved by Ext.P5 order passed in I.A No.8/2022 in O.S No.385/2018 by the Court of the Principal Munsiff, Irinjalakuda, the defendant in the suit has filed the original petition. The respondent is the plaintiff. 2. The skeletal facts leading to Ext.P5 order are: (i) The respondent-company has instituted Ext.P3 plaint against the petitioner for recovery of money. (ii) The petitioner has filed Ext.P1 complaint against the respondent before the Consumer Disputes Redressal Forum ( in short ‘Forum’), Thrissur, for the recovery of an amount of Rs.10,25,000/-. (iii) The Forum, by Ext.P2 order, has restrained the respondent from proceeding against the petitioner until further orders. (iv) In the above background, the petitioner filed I.A ``` OP(C) NO. 444 OF 2023 ``` ``` 3 ``` No.8/2022 (Ext.P4) before the court below, to stay further proceedings in the suit. (v) The court below, by the impugned Ext.P5 order, has dismissed Ext.P4 application. (vi) Ext.P5 is ex-facie illegal and unsustainable in law. Hence the original petition. 3. Heard; Sri.N.L.Bitto, the learned counsel appearing for the petitioner, on admission. 4. The question is, whether there is any illegality in Ext.P5 order? 5. Ext.P3 suit was instituted on 5.9.2018. 6. It is not discernible from the materials on record, as to whether the petitioner has filed any written statement in the suit. 7. The petitioner has filed Ext.P1 complaint before the Forum on 5.7.2020, against the respondent. 8. The Forum has passed Ext.P2 order, restricting ``` OP(C) NO. 444 OF 2023 ``` ``` 4 ``` the respondent from taking any proceedings against the petitioner until further orders. 9. Now, the petitioner has filed Ext.P4 application to stay further proceedings in the suit. But, the court below dismissed the application by Ext.P5 order. 10. In the case on hand, undisputedly, the respondent had instituted Ext.P3 plaint prior to the institution of Ext.P1 complaint. The petitioner has not pleaded any set off or raised a counter claim in the suit. Instead, nearly after two years, the petitioner Ext.P1 complaint for recovery of money from the respondent. 11. The petitioner asserts that because more amount is due from the respondent to the petitioner, as per Ext.P1 complaint, Ext.P3 suit has to be stayed. 12. A reading of Ext.P2 order would reveal that the Forum has not specifically restrained the respondent from proceeding with the suit, which was instituted prior to Ext.P1 complaint. ``` OP(C) NO. 444 OF 2023 ``` ``` 5 ``` 13. Even otherwise, Section 41(b) of the Specific Relief Act, 1963, specifically prohibits injunction being granted to any person from prosecuting a proceeding in a court subordinate to it. 14. In **Emaar MGF Land Limited v. Aftab Singh** [(2019) 12 SCC 751] interpreting Section 3 of the Consumer Protection Act, 1986, the Hon’ble Supreme Court has held that the Act is in addition and not in derogation of the provisions of any other law for the time being in force. Therefore, there is no inhibition in parallel proceedings being conducted. 15. The learned counsel appearing for the petitioner has relied on the decision of this Court in **Anil Paul v. South Indian Bank** [2022 (2) KLT 169], to drive home his contention that the Consumer Forum falls within the expression of ‘court’. Therefore, Ext.P2 order passed by the Forum is binding on the court below. I am afraid that the said contention is untenable, in view of Section 41 (b) ``` OP(C) NO. 444 OF 2023 ``` ``` 6 ``` of the Special Relief Act, and because the Civil Court is not subordinate to the Forum. Moreover, Ext.P1 complaint was filed subsequent to the filing of the suit. 16. In the above conspectus, I am of the firm view that both Exts.P1 and P3 can be parallelly tried by the Forum and Civil Court simultaneously and independently. 17. Ultimately, if the petitioner succeeds in Ext.P1 complaint, he can recover such amount from the respondent, notwithstanding the decree to be passed in Ext.P3 suit. But, that does not mean that the suit is to be stayed. 18. It is trite; the exercise of the power of superintendence of this Court under Article 227 of the Constitution of India is to keep the courts of the District Judicature within their bounds of authority and to see that they do the duty as expected of them. The High Court is not vested with any unlimited prerogative to correct all decisions made within the limits of the jurisdiction of the ``` OP(C) NO. 444 OF 2023 ``` ``` 7 ``` subordinate courts. The exercise of this power and interfering with the orders of the courts is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also nigh settled that while acting under this Article, the High Court is not acting as an appellate court to substitute its judgment in place of the subordinate courts. 19. On a conspectus of the pleadings and materials on record and on the findings rendered above, I hold that there is no error in Ext.P5 order warranting interference by this Court under Article 227 of the Constitution of India. Resultantly, the original petition fails and is hence dismissed. **Sd/-C.S.DIAS** ma/21.2.2023 **JUDGE** ``` OP(C) NO. 444 OF 2023 ``` ``` 8 ``` ``` OP(C) NO. 444 OF 2023 ``` ``` 9 ``` ## **`APPENDIX OF OP(C) 444/2023`** ``` PETITIONER EXHIBITS Exhibit-P1 ``` ``` Exhibit-P2 ``` ``` A TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER AS CC.262 OF 2020 BEFORE THE CDRF THRISSUR DATED 5/7/2020 ``` ``` A TRUE COPY OF THE ORDER PASSED BY THE CONSUMER DISPUTE REDRESSAL FORUM, THRISSUR DATED 06/07/2020 ``` ``` Exhibit-P3A TRUE COPY OF THE PLAINT IN O.S 385 OF 2018 BEFORE THE MUNSIFF COURT THRISSUR DATED 05/09/2018 ``` ``` Exhibit-P4A TRUE COPY OF IA.8 OF 2022 IN BEFORE THE MUNSIFF COURT IRINJALAKUDA DATED 13/12/2022 ``` ``` Exhibit-P5A TRUE COPY OF THE ORDER IN IA 8/2022 IN O.S.385/2018 OF THE MUNSIFF COURT IRINJALAKUDA DATED 23/12/2022 ```