Vijayakumar S.S. v. Consumer Disputes Redressal Forum, Ernakulam & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 21ST DAY OF JUNE 2018 / 31ST JYAISHTA, 1940** **WP(C).No. 10276 of 2018** ## **PETITIONER** **VIJAYAKUMAR S.S.,** **AGED 43 YEARS, S/O. SAHADEVAN, RESIDING AT ANIZHAM HOUSE, ANGAMALIVELI, AROOR, ALAPPUZHA DISTICT - 688 534.** **BY ADVS.SRI.A.JAYASANKAR** **SRI.ASHWIN SETHUMADHAVAN SRI.MANU GOVIND SMT.B.MEERA SRI.RAHUL SURENDRAN SRI.S.SABARINADH** ## **RESPONDENTS:** **1. THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM NEAR GOVT. HOMEO HOSPITAL, PULLEPADY ROAD, KATHRIKADAVU, KALOOR, ERNAKULAM, KERALA 682 017, REPRESENTED BY ITS REGISTRAR.** **2. M/S. BOBCARDS LTD, 2ND FLOOR BARODA HOUSE BEHIND DEWAN CENTRE, S V ROAD, JOGESHWARI WEST, MUMBAI - 400 102 REPRESENTED BY THE CHAIRMAN & MANAGING DIRECTOR RANJAN DHAWAN.** **3. THE CHAIRMAN & MANAGING DIRECTOR BOBCARDS LTD,2ND FLOOR BARODA HOUSE BEHIND DEWAN CENTRE, SV ROAD,JOGESHWARI WEST, MUMBAI - 400 102, SRI RANJAN DHAWAN.** **4. THE VICE -PRESIDENT(LEGAL AND RECOVERY) BANK OF BARODA NORTH BRANCH, BANERJI ROAD, KACHERIPADY, ERNAKULAM - 682 018.** **5. THE SENIOR MANAGER** **BOBCARDS LTD,2ND FLOOR BARODA HOUSE BEHIND DEWAN CENTRE, SV ROAD,JOGESHWARI WEST, MUMBAI - 400 102 SRI. M.P BHANDARI.** **R2 - R5 BY ADV. SRI.JOSE ABRAHAM** - **R4 BY SRI.JOMY GEORGE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sdr/-** - **23.06.18** **WP(C).No. 10276 of 2018 (H)** **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 A COPY OF THE COMPLAINT IN C.C 767 OF 2015 PENDING BEFORE THE 1ST RESPONDENT FORUM.** **EXHIBIT P2 A TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE PETITIONER IN C.C NO.767 OF 2015.** **EXHIBIT P3 A TRUE COPY OF THE AFFIDAVIT AND PETITION FILED IN C.C 767 OF 2015.** ## **RESPONDENTS EXHIBITS NIL** **/TRUE COPY/** **PA TO JUDGE** **sdr/23.06.18** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.10276 of 2018 ----------------------------------------------Dated this the 21[st] day of June, 2018** ## **JUDGMENT** This writ petition is filed by the petitioner seeking the following reliefs: _“i. Declare that the 1[st] respondent has erred in permitting respondents 2 to 5 to lead evidence in the absence of Version, the same having been filed after statutory time period and as such liable to be rejected;_ _ii. Issue a writ in the nature of prohibition or any other appropriate writ, order or direction, commanding the 1[st] respondent not to accept and act upon the Version, Proof Affidavit and Documents filed by respondents 2 to 5 in C.C. No.767 of 2015; or in the alternative;_ _iii. Issue a writ in the nature of prohibition or any other appropriate writ, order or direction, commanding the 1[st] respondent not to proceed with trial of CC 767 of 2015 on its file, before considering and passing orders on Ext.P3; and_ _iv. Further pleased to issue such other writ, order or direction as this Honourable Court deems just and proper in the circumstances of the case.”_ ## 2. Material facts for the disposal of the writ petition are as follows: 3. Petitioner is the complainant in C.C.No.767 of 2015 pending before the Consumer Disputes Redressal Forum, Ernakulam. Respondents 2 to 5 are the opposite parties 2 **W.P.(C) No.10276 of 2018** therein. Respondents 2 to 5 entered appearance, through counsel, on 19.12.2015. However, respondents filed their Version/Written Statement way after the statutory limit of 45 days, on 18.02.2016 only. The petitioner/complainant objected acceptance of the said Version in his Proof Affidavit and pleaded that the opposite parties should limit their evidence solely to the complaint. After cross-examination and re-examination on 04.01.2018, the matter was posted for evidence of the opposite parties, to 06.02.2018. Though the counsel for the petitioner/complainant submitted that, there cannot be any evidence without pleadings based on the wellestablished legal principle, and as such, respondents 2 to 5 cannot be permitted to lead evidence. However, the Forum permitted respondents 2 to 5 to lead evidence by accepting Proof Affidavit and marking documents through an authorized personnel of respondents 2 to 5. Ext.P3 has been filed seeking to reject the version, proof affidavit and documents marked on the part of respondents 2 to 5, on 06.02.2018, in the interest of justice. 3 ## **W.P.(C) No.10276 of 2018** 4. According to the petitioner, the dictum laid down by the Supreme Court makes it clear that, a written statement received after the statutory period cannot be accepted, as held in ' _**Dr. J.J. Merchant v. Sreenath Chathurvedi**_ ' [(2002) 6 SCC 635], and restated in ' _**New India Assurance Company**_ _**v. Hilli Multipurpose Cold Storage Private Ltd.**_ ' [(2015) 16 SCC 20]. Therefore, petitioner seeks the above-specified reliefs. 5. A detailed counter affidavit is filed for and on behalf of respondents 2 to 5, refuting the allegations and claims and demands raised by the petitioner and also traversing through the contentions raised in the written statement/version filed by the respondents. 6. I have heard learned counsel for the petitioner and the learned counsel appearing for respondents 2 to 5. Perused the documents on record and the pleadings put forth by the respective parties. 7. In my considered opinion, the sole question to be considered is, whether any manner of interference is warranted to the action of the 1[st] respondent accepting the written statement and proceeded to take evidence, taking into account 4 **W.P.(C) No.10276 of 2018** the proof affidavit submitted by respondents 2 to 5. It is not under much dispute that the written statement/version is filed by respondents 2 to 5, as is submitted by the petitioner. However, in my considered opinion, since the complaint was proceeded with, the written statement was accepted and the parties have filed their proof affidavit, and if it is found that there is any illegality in the matter of filing the version and proof affidavit, the same can be taken note of by the District Forum itself, during the final adjudication of the matter. If at all the petitioner is suffering from any adverse orders against the challenge made with respect to acceptance of the version/written statement, petitioner is left with a remedy to challenge the same when an appeal is preferred. In my considered opinion, the Forum considering the question of acceptance of the version _vis-a-vis_ the proposition of law laid down by the apex court in the afore-quoted judgments, is a matter to be adjudicated in the final adjudication process. 8. Taking into account the facts and circumstances involved in the case, and the proposition of law laid down, pointed out, if at all the issue is to be considered on the lines of the proposition made by the apex court, it can be ## **W.P.(C) No.10276 of 2018** 5 considered at the stage of final adjudication. If at all the Consumer Forum passes any order in violation of the proposition of law laid down, it becomes an illegality, entitled to be challenged by the petitioner before the State Commission. 9. Moreover, the apex court had considered the question of entertaining writ petitions _vis-a-vis_ the Consumer Protection Act in _**'Nivedita Sharma v. Cellular Operators Assn. of India & Others'**_ [2011 (13) SCALE 584], and deprecated the practice of entertaining writ petition in respect of a matter pending before the Consumer Forum. It is true, there may be circumstances justifying interference invoking the extra-ordinary power conferred on this Court under Article 226 of the Constitution of India. But, taking into account the facts and circumstances involved in this case, I am of the considered opinion that, petitioner has not made out any case of interference at this stage of the proceedings. Therefore, the writ petition will stand dismissed. However, I make it clear that the petitioner will be at liberty to raise the issue with respect to the acceptance of written statement and evidence adduced on the basis of the **W.P.(C) No.10276 of 2018** 6 proof affidavit, when the final adjudication process is undertaken by the Forum. Sd/- **SHAJI P. CHALY JUDGE** St/22.06.2018