Shriram Transport Finance Company Limited v. Pradeep and Consumer Disputes Redressal Forum, Thrissur

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 20[TH] DAY OF OCTOBER 2021 / 28TH ASWINA,** **1943** ## **WP(C) NO. 17828 OF 2021** ## **PETITIONER:** **M/S. SHRIRAM TRANSPORT FINANCE COMPANY LIMITED, 2ND FLOOR, ROYAL PLAZA, OPPOSITE NSS KPT HIGH SCHOOL, T.B. ROAD, OTTAPALAM, PALAKKAD 679 101 REPRESENTED BY ITS BRANCH MANAGER AND AUTHORIZED SIGNATORY DINESH K.V.** **BY ADVS. C.HARIKUMAR SANDRA SUNNY ARUN KUMAR M.A** ## **RESPONDENTS:** - **1 PRADEEP, AGED 39 YEARS S/O. LATE RAMACHANDRAN, THEJAS, KANIYARKODE, THIRUVIWAMALA, TALAPPILY, THRISSUR 680 594.** - **2 CONSUMER DISPUTES REDRESSAL FORUM, AYYANTHOLTE, THRISSUR 680 003.** **SMT.B.VINITHA GP SR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 W.P.(C) No.17828 of 2021 **C.R.** ## **P.B.SURESH KUMAR, J.** **-------------------------------------------** **W.P.(C) No.17828 of 2021** **----------------------------------------------Dated this the 20[th] day of October, 2021.** ## **J U D G M E N T** Petitioner is a Non Banking Financial Company. The father of the first respondent availed a loan from the petitioner for purchase of a vehicle. Ext.P1 is the agreement entered into by the father of the first respondent with the petitioner in this regard. It is stated that when the father of the first respondent committed defaults in remitting the instalments of the loan, the petitioner issued a notice to him and also to the guarantors to the loan transaction, calling upon them to pay the overdue instalments of the loan. It is also stated that on receipt of the said notice, one of the guarantors to the loan transaction who 3 W.P.(C) No.17828 of 2021 is a sibling of the first respondent surrendered the vehicle to the petitioner, as the father of the first respondent died in the meanwhile. It is further stated by the petitioner that they have issued thereafter Ext.P2 notice to the guarantors to the loan transaction calling upon them to liquidate the balance outstanding in the loan account and to take back the vehicle and informing them that the petitioner would otherwise initiate arbitration proceedings as provided for in Ext.P1 agreement for realisation of their dues by selling the vehicle. It is further stated by the petitioner that since the requirements in Ext.P2 notice have not been complied with by the guarantors to the loan transaction, arbitral proceedings have been initiated by the petitioner and the same is pending. 2. In the meanwhile, the first respondent instituted a complaint before the District Consumer Disputes Redressal Commission, Thrissur (the Commission) alleging that the vehicle purchased with the loan provided by the petitioner has been taken possession forcibly by the petitioner and that 4 W.P.(C) No.17828 of 2021 the said conduct of the petitioner would amount to unfair trade practice and deficiency of service. Ext.P3 is the complaint preferred by the first respondent in this regard. The prayer in Ext.P3 complaint, in the circumstances, was for a direction to the petitioner to return the vehicle to the first respondent. On Ext.P3 complaint, the Commission issued notice to the petitioner directing them to appear before the Commission on 15.07.2020. In Ext.P3 complaint, the first respondent filed I.A.No.147 of 2020 seeking a direction to the petitioner to return the vehicle to him, and on the said interlocutory application, the Commission passed Ext.P5 interim order without notice to the petitioner on 27.02.2020 directing the petitioner to return the vehicle to the first respondent. It is stated by the petitioner that they were not aware of Ext.P5 interim order as the same was not served on them. Later, on 05.02.2021, the first respondent filed Ext.P6 interlocutory application in the complaint seeking action against the petitioner for non-compliance of Ext.P5 order, and on Ext.P6 W.P.(C) No.17828 of 2021 5 interlocutory application, the Commission issued Ext.P7 notice directing the petitioner to appear before the Commission on 05.03.2021. The writ petition was instituted, in the circumstances, challenging Ext.P5 order mainly on the ground that the Commission has no jurisdiction to pass an order in the nature of Ext.P5. 3. Heard the learned counsel for the petitioner. 4. The learned counsel for the petitioner reiterated that the Commission functioning under the Consumer Protection Act, 2019 (the Act) has no jurisdiction to pass an interim order in the nature of Ext.P5. According to the learned counsel, insofar as the petitioner has already initiated proceedings under the Arbitration and Conciliation Act, 1996, the first respondent can obtain the relief sought for in I.A.No.147 of 2020 only from the Arbitrator in the pending arbitration proceedings, if at all he makes out a case for such a relief. It was also contended by the learned counsel that the impugned order is against the spirit of Section 51(5) of the 6 W.P.(C) No.17828 of 2021 Motor Vehicles Act, 1988. It was further contended by the learned counsel that at any rate, the Commission has no jurisdiction to pass an order in the nature of an interim mandatory injunction and even if it has power to pass such an interim order, the same cannot be passed without notice to the parties. 5. Lack of jurisdiction on the part of statutory/quasi-judicial authorities is certainly one of the wellrecognised exceptions to the self-imposed restraint that the High Courts shall not exercise the power of judicial review where the party invoking the review jurisdiction of the Court has an alternative and efficacious remedy. The question arises for consideration therefore is as to whether Ext.P5 can be said to be an order vitiated by lack of jurisdiction. 6. The Courts in India and abroad have all throughout maintained a distinction between cases where a statutory/quasi-judicial authority exercised a jurisdiction not vested in it in law and cases where there was a wrongful W.P.(C) No.17828 of 2021 7 exercise of the available jurisdiction. Though the distinction between jurisdictional error and error of law within jurisdiction has been reduced almost to a vanishing point by the decision of the House of Lords in **Anisminic Ltd. v. Foreign Compensation Commission** , (1969) 2 AC 147 and by the various decisions of the Apex Court that followed the view taken in **Anisminic Ltd.** , in the context of the power of the superior courts to interfere with the decisions of the subordinate courts/tribunals or administrative authorities, it has been clarified by the Apex Court in **Embassy Property Developments (P) Ltd. v. State of Karnataka** , (2020) 13 SCC 308 that the said decisions cannot be applied while considering the question of exercise of power under Article 226 of the Constitution, despite the availability of a statutory alternative remedy. In other words, while considering the question of exercise of power under Article 226 of the Constitution, the traditional distinction between “jurisdictional error” and “error of law within the jurisdiction” shall be kept in 8 W.P.(C) No.17828 of 2021 mind and followed. Jurisdiction of a statutory/quasi-judicial authority means its entitlement to enter upon an enquiry into a particular matter. If a statutory or quasi-judicial authority is not entitled to enter upon an enquiry into a particular matter, and despite that if it does so, its actions would be vitiated by lack of jurisdiction. Lack of jurisdiction arises when a statutory/quasijudicial authority is either expressly or impliedly prohibited from entering upon an enquiry into a particular matter. On the other hand, if a statutory/quasi-judicial authority is entitled to enter upon an enquiry into a particular matter, then any subsequent error can only be regarded as an error within the jurisdiction [See **M.L. Sethi v. R.P. Kapur** , (1972) 2 SCC 427]. The question whether there is lack of jurisdiction or merely error within jurisdiction, needs to be resolved by construing the facts of the case on hand. 7. Reverting to the facts, the fact that the Commission has jurisdiction to pass interim orders on complaints instituted before it, is not disputed by the petitioner. 9 W.P.(C) No.17828 of 2021 The relevant part of Section 38 of the Act dealing with the jurisdiction of the Commission to pass interim orders reads thus: 38. Procedure on admission of complaint.--(1) The District Commission shall, on admission of a complaint, or in respect of cases referred for mediation on failure of settlement by mediation, proceed with such complaint. **==> picture [113 x 7] intentionally omitted <==** (8) Where during the pendency of any proceeding before the District Commission, if it appears necessary, it may pass such interim order as is just and proper in the facts and circumstances of the case. As explicit from the extracted provision, the jurisdiction aforesaid is so wide that the Commission can pass any interim order, if it appears to it necessary, as is just and proper in the facts and circumstances of the case. The case of the petitioner is only that the Commission does not have jurisdiction to pass an interim order in the nature of Ext.P5. The reasons put forth 10 W.P.(C) No.17828 of 2021 by the petitioner in support of the said stand are that the same is against the spirit of Section 51(5) of the Motor Vehicles Act, 1988; that the relief granted by the Commission in terms of the impugned order could be granted only by the Arbitrator; that an order in the nature of an interim mandatory injunction does not fall within the scope of sub-section (8) of Section 38 of the Act and that if at all such an order falls within the scope of the said provision, the Commission ought to have issued notice to the petitioner before passing such an order. In other words, the essence of the case of the petitioner is that the impugned order is one passed otherwise than in accordance with the contemplation of the statute. In so far as the petitioner does not challenge the jurisdiction of the Commission to enter upon an enquiry to pass an interim order as is just and proper in the facts and circumstances of the case, none of those reasons would make out a case of lack of jurisdiction on the part of the Commission. Those reasons, on the other hand, could be considered only as errors committed by the Commission in the 11 W.P.(C) No.17828 of 2021 order passed pursuant to the enquiry to pass the interim order. As such, the same would only amount to errors within the jurisdiction. The position would have been certainly different, if the Commission has no power to pass an interim order at all. The writ petition, in the circumstances, is without merits and the same is, accordingly, dismissed. **Sd/-** ## **P.B.SURESH KUMAR, JUDGE.** YKB The 6[th] paragraph of judgment dated 20.10.2021 in WP(C) No.17828/2021 is substituted Suo Motu as per order dated 19.11.2021 in WP(C) 17828/2021 as follows, in order to make the proposition of law laid down therein unambiguous. “6. The Courts in India and abroad have all throughout maintained a distinction between cases where a statutory/quasi-judicial authority exercised a jurisdiction not vested in it in law, styling the same as “jurisdictional error” and 12 W.P.(C) No.17828 of 2021 cases where there was a wrongful exercise of the available jurisdiction, styling the same as “error of law within jurisdiction”. It is in respect of cases where a statutory/quasijudicial authority exercised a jurisdiction not vested in it by law that the remedy under Article 226 of the Constitution was permitted to be invoked traditionally and not in respect of cases where there was a wrongful exercise of the available jurisdiction. Though the distinction between “jurisdictional error” and “error of law within jurisdiction” has been reduced almost to a vanishing point by the decision of the House of Lords in **Anisminic Ltd. v. Foreign Compensation Commission** , (1969) 2 AC 147 and by the various decisions of the Apex Court that followed the view taken in **Anisminic Ltd.** , in the context of the power of the superior courts to interfere with the decisions of the subordinate courts/tribunals or administrative authorities, it has been clarified by the Apex Court in **Embassy Property Developments (P) Ltd. v. State of Karnataka** , (2020) 13 SCC 308 that the decision in 13 W.P.(C) No.17828 of 2021 **Anisminic Ltd.** and the decisions of the Apex Court that followed **Anisminic Ltd.** , cannot be applied while considering the question of exercise of power under Article 226 of the Constitution, despite the availability of a statutory alternative remedy. In other words, while considering the question of exercise of power under Article 226 of the Constitution, the traditional distinction between “jurisdictional error” and “error of law within the jurisdiction” shall be kept in mind and followed. Jurisdiction of a statutory/quasi-judicial authority means its entitlement to enter upon an enquiry into a particular matter. If a statutory or quasi-judicial authority is not entitled to enter upon an enquiry into a particular matter, and despite that if it does so, its actions would be vitiated by lack of jurisdiction. Lack of jurisdiction arises when a statutory/quasi-judicial authority is either expressly or impliedly prohibited from entering upon an enquiry into a particular matter. On the other hand, if a statutory/quasi-judicial authority is entitled to enter upon an enquiry into a particular matter, then any subsequent 14 W.P.(C) No.17828 of 2021 error can only be regarded as an error within the jurisdiction [See **M.L. Sethi v. R.P. Kapur** , (1972) 2 SCC 427]. The question whether there is lack of jurisdiction or merely error within jurisdiction, needs to be resolved by construing the facts of the case on hand.” Sd/- **JOINT REGISTRAR** 15 W.P.(C) No.17828 of 2021 ## **APPENDIX OF WP(C) 17828/2021** ## **PETITIONER EXHIBITS** - **Exhibit P1** **THE TRUE COPY OF THE LOAN CUM HYPOTHECATION AGREEMENT DATED 23.05.2018.** - **Exhibit P2** - **THE TRUE COPY OF THE NOTICE CALLING FOR ARBITRATION ISSUED ON BEHALF OF THE PETITIONER DATED 12.12.2019.** - **Exhibit P3** - **THE TRUE COPY OF THE PETITION IN C.C. NO. 189 OF 2020 FILED BY THE IST RESPONDENT BEFORE THE HONBLE CONSUMER DISPUTES REDRESSAL FORUM, THRISSUR DATED 24.02.2020.** ## **Exhibit P4** - **THE TRUE COPY OF THE NOTICE ISSUED BY THE HONBLE CONSUMER DISPUTE REDRESSAL FORUM, THRISSUR IN C.C. NO. 189 OF 2020 DATED 31.03.2020.** - **Exhibit P5** - **THE TRUE COPY OF THE ORDER IN I.A. NO. 147 OF 2020 IN C.C. NO. 189 OF 2020 PASSED BY THE HONBLE CONSUMER DISPUTES REDRESSAL FORUM, THRISSUR DATED 27.02.2020.** - **Exhibit P6** - **THE TRUE COPY OF THE PETITION IN I.A. NO. 72 OF 2021 IN C.C. NO. 189 OF 2020 FILED BY THE IST RESPONDENT BEFORE THE HON'BLE CONSUMER DISPUTES REDRESSAL FORUM, THRISSUR DATED 05.02.2021.** - **Exhibit P7** - **THE TRUE COPY OF THE NOTICE ISSUED BY THE HONBLE CONSUMER DISPUTE REDRESSAL FORUM, THRISSUR IN C.C. NO. 189 OF 2020 DATED 27.02.2021.** - **Exhibit P8** - **THE TRUE COPY OF THE STATEMENT OF ACCOUNTS EVIDENCING AMOUNT DUE TO THE PETITIONER IN RESPECT OF THE VEHICLE.**