Triofab Constructions Pvt. Ltd. & K.P. Johny v. Joseph Xavier, District Consumer Disputes Redressal Commission, Thrissur, Francis John Kattorkaran & Harosh John Kattorkaran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** ## **FRIDAY,THE 4TH DAY OF DECEMBER 2020/13TH AGRAHAYANA,1942** ## **WP(C).No.23277 OF 2020(H)** ## **PETITIONERS:** **1 TRIOFAB CONSTRUCTIONS PVT. LTD.,MIDC TTC INDUSTRIAL AREA, MAHAPE,NAVI MUMBAI-400 710, REPRESENTED BY ITS MANAGING DIRECTOR. 2 K.P.JOHNY, MANAGING DIRECTOR, TRIOFAB CONSTRUCTIONS PVT. LTD., BRANCH OFFICE, M.G. KAVU,THRISSUR-680 651.** **BY ADVS. SRI.V.KRISHNA MENON SMT.P.VIJAYAMMA SMT.J.SURYA SRI.PRINSUN PHILIP** ## **RESPONDENTS:** - **1 JOSEPH XAVIER, AGED 61, “PANAKKAL”, P-19 KATTORKARANS DREAMS HOMES, M.G. KAVU, THRISSUR-680 581.** - **2 DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,(FORMERLY CONSUMER DISPUTES REDRESSAL FORUM), AYANTHOLE, THRISSUR-3.** - **3 FRANCIS JOHN KATTORKARAN, DIRECTOR, TRIOFAB CONSTRUCTIONS PVT. LTD.,MIDC TTC INDUSTRIAL AREA, MAHAPE,NAVI MUMBAI-400 710.** - **4 HAROSH JOHN KATTORKARAN, DIRECTOR, TRIOFAB CONSTRUCTIONS PVT. LTD., MIDC TTC INDUSTRIAL AREA, MAHAPE, NAVI MUMBAI-400 710.** **R1 BY ADV. SHRI.PRABHU K.N. R1 BY ADV. SHRI.MANUMON A. R3-R4 BY ADV. SMT.BINI SARAMMA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.23277/2020 : 2 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 4[th] day of December, 2020**_ The writ petitioners are a Private Limited Company and its Managing Director. They are challenging Ext.P11 order passed by the 2[nd] respondent–District Consumer Disputes Redressal Commission, Thrissur. 2. The petitioners state that the 1[st] petitionerCompany proposed to construct a residential villa complex at Thrissur. The 1[st] respondent executed an agreement with the 1[st] petitioner for purchase of villa as per Ext.P1 dated 10.12.2011. The petitioner has completed the construction of residential villa and handed over the same to the 1[st] respondent. Though the 1[st] respondent expressed full satisfaction with the construction, after starting residing in the villa in July, 2012, the 1[st] respondent preferred Ext.P2 complaint in 2013 before the District Consumer Disputes Redressal Commission, invoking the Consumer Protection Act, 1986. WP(C) No.23277/2020 : 3 : 3. On receipt of notice of the complaint, the petitioners filed their version denying the allegations made by the 1[st] respondent. The petitioners also stated that the complaint is not maintainable before the 2[nd] respondent in view of an arbitration clause in Ext.P1 agreement. The petitioners insisted for considering maintainability of Ext.P2 complaint as a preliminary issue. The 2[nd] respondent however dismissed the said application. 4. The petitioners state that even during the pendency of Ext.P2 complaint before the 2[nd] respondent, the 1[st] respondent filed O.S. No.1545/2015 before the Munsiff's Court, Thrissur claiming damages and the petitioner has made a fixed deposit of `5,55,000/- as security, in the said suit. However, the 2[nd] respondent proceeded with the case and based on an application made by the 1[st] respondent, the 2[nd] respondent appointed an Expert Commissioner to assess the construction of the villa and to state its defects and shortcomings. The Expert Commissioner filed Ext.P5 report. The said report is lopsided and materially wrong, contend the WP(C) No.23277/2020 : 4 : petitioners. 5. The petitioners required the 2[nd] respondent to consider as to whether the report of the Expert Commissioner could be accepted or to be set aside. The 2[nd] respondent however, without considering the request of the petitioners, posted the case for evidence on 29.05.2017. The petitioner thereupon filed R.P. No.28/2017 before the Kerala State Consumer Disputes Redressal Commission. The State Commission as per Ext.P8 order directed the 2[nd] respondent to consider the issue of admissibility of the report of the Expert Commissioner in evidence, before proceeding any further with the complaint petition. 6. The petitioner thereupon submitted Ext.P9 application, before the 2[nd] respondent seeking to determine the question of admissibility of the report of the Expert Commissioner in evidence in terms of the direction of the State Commission. The 2[nd] respondent, however, deferred the consideration of the petitioners’ application. Finally the 2[nd] respondent passed Ext.P11 order dated 13.12.2019 WP(C) No.23277/2020 : 5 : stating that there is no provision to set aside a report of the expert Commissioner under the Consumer Protection Act and if the petitioners so desired, they should have taken another Commission to prove their claims. The petitioners challenge the said Ext.P11 order of the 2[nd] respondent. 7. The 1[st] respondent resisted the writ petition filing counter affidavit. The 1[st] respondent stated that this Court has no power to issue any direction in the matter in view of the judgments of the Apex Court in _**Nivedita Sharma v. Cellular Operators Association of India and Others** [2011 KHC 5230]_ and other cases. 8. The 1[st] respondent further contended that Ext.P5 is _ipso facto_ illegal as the 2[nd] respondent is not vested with the jurisdiction to review Ext.P11 order passed by it on admissibility of Ext.P5 in compliance of Ext.P8. The 1[st] respondent further argued that Ext.P8 being an order passed by the acting President, it is not binding on the 2[nd] respondent, in view of section 14 of the Consumer Protection Act. For the aforesaid reasons, the writ petition is liable to be WP(C) No.23277/2020 : 6 : dismissed, contended the 1[st] respondent. 9. I have heard learned counsel for the petitioner and learned counsel for the 1[st] respondent. 10. By Ext.P8 order, the Kerala State Consumer Disputes Redressal Commission allowed the Revision Petition filed by the petitioners herein and ordered as follows:- “I am inclined to allow the revision petition setting aside the posting of the case for evidence and directing the lower Forum to determine the issue of admissibility of the commission report in evidence before recording, further evidence in this case. The Forum has to render a finding regarding the sustainability of the commission report and only thereafter the Forum shall proceed with the case in accordance with law.” 11. The clear direction given by the Kerala State Consumer Disputes Redressal Commission to the 2[nd] respondent District Commission, is to determine the issue of admissibility of the commission report in evidence before recording further evidence in the case. Ext.P8 order of the State Commission, has not been challenged by the 1[st] respondent or any other party to the proceedings. Ext.P8 WP(C) No.23277/2020 : 7 : order, therefore has become final. 12. The 2[nd] respondent-District Forum however disregarded the direction and order passed by the State Commission and held as follows:- “We heard both sides in detail. We have gone through the available materials on record and given a thoughtful consideration to the arguments submitted by both sides. Under the Provisions of CP Act, there is no scope for setting aside a report filed by an expert before the Forum. Forum can only consider its merits and defects if any at the time of final disposal of the CC. The aggrieved party could have been apply for appointing another expert and could have brought a second report to compare its merits. That was not done by the petitioner herein. It is true that the learned counsel for opposite party so elaborately cross examined, even on each and every minute points in the report. That deposition is there on records. They can argue the main CC based on the cross examinations conducted. Though the order of Acting President of CDRC is there, we do not find any provisions permitting us to decide admissibility of a report submitted by an expert during the trial stage. It can only be considered in the final arguments and in deciding finally the CC. Considering the points discussed hereinabove we are of the opinion that this petition bears no merit and dismissed accordingly.” The 2[nd] respondent has evidently refused to comply with the order/direction given by the State Commission. 13. Ordinarily, this Court under Article 226 of the Constitution of India should not entertain a writ petition, when WP(C) No.23277/2020 : 8 : the petitioner has alternate remedy to challenge the order. However Ext.P11 order passed by the District Commission exceeds the minimum judicial discipline expected of a tribunal or judicial forum, and warrants interference. 14. The Kerala State Consumer Dispute Redressal Commission has passed Ext.P8 order in exercise of its powers under section 17(b) of the Consumer Protection Act, 1986. The Kerala State Consumer Disputes Redressal Commission is an appellate body empowered to exercise appellate powers over the orders of the District Commissions. Appellate jurisdiction carries with it power to issue corrective direction binding on forum below. Failure on the part of the latter to carry out directions or show disrespect to or to question propriety or direction, is destructive of hierarchical system in judicial administration. When an appellate forum passes an order and gives direction to the lower forum to consider an issue in a particular manner, the lower forum is bound to adhere to the directions, as long as the order/direction is not stayed or set aside by a still WP(C) No.23277/2020 : 9 : superior Court or forum. 15. The 2[nd] respondent District Forum therefore ought not have ventured to decide the legality or sustainability of the order of the State Commission. If at all the order of the State Commission suffers from any illegality or irregularity, it is for the parties to the proceedings to challenge the same in accordance with the law. The 2[nd] respondent District Commission therefore committed grave judicial indiscipline in passing Ext.P11 order, disregarding and brushing aside the direction given by the appellate body. In the facts and circumstances of the case, this Court is of the firm opinion that interference with Ext.P11 order passed by the 2[nd] respondent is warranted under Article 226 of the Constitution of India. Accordingly, the writ petition is allowed and Ext.P11 order of the 2[nd] respondent is quashed. Sd/- **N. NAGARESH, JUDGE** aks/04.12.2020 WP(C) No.23277/2020 : 10 : ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE AGREEMENT DATED 10.12.2011.** **EXHIBIT P2 TRUE COPY OF THE COMPLAINT PETITION FILED BY THE FIRST RESPONDENT BEFORE THE SECOND RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE VERSION DATED 16.06.2014 FILED B=IN CC NO.408/2013.** - **EXHIBIT P4 THE TRUE COPY OF THE ADDITIONAL VERSION DATED 12.08.2016 FILED IN CC NO.408/2013.** - **EXHIBIT P5 THE TRUE COPY OF THE REPORT DATED 28.01.2014 OF THE EXPERT COMMISSIONER.** - **EXHIBIT P6 THE TRUE COPY OF THE OBJECTION TO THE EXPERT COMMISSIONERS REPORT.** - **EXHIBIT P7 THE TRUE COPY OF THE DEPOSITION OF THE EXPERT COMMISSIONER DATED 23.12.2016.** - **EXHIBIT P7 A THE TYPED COPY OF THE DEPOSITION OF THE EXPERT COMMISSIONER DATED 23.12.2016.** - **EXHIBIT P8 THE TRUE COPY OF THE ORDER DATED 23.05.2017 OF THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION IN RP NO.28/2017.** - **EXHIBIT P9 THE TRUE COPY OF THE APPLICATION IA NO.196/2018 IN CC NO.408/2013 FILED BY THE PETITIONERS.** - **EXHIBIT P10 THE TRUE COPY OF THE OBJECTION DATED 11.06.2018 FILED BY THE FIRST RESPONDENT IN IA NO.196/2018.** - **EXHIBIT P11 THE TRUE COPY OF THE ORDER DATED 13.12.2019 OF THE CONSUMER DISPUTES REDRESSAL FORUM, THRISSUR.**