Kerala High Court
Alappat Home Furniture & Decors vs V.A.Ramesh Chandran on 7 April, 2017
Author: Dama Seshadri Naidu
Bench: Dama Seshadri Naidu
C.R.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
FRIDAY, THE 7TH DAY OF APRIL 2017/17TH CHAITHRA, 1939
WP(C).No. 30594 of 2012 (Y)
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PETITIONER:
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ALAPPAT HOME FURNITURE & DECORS
FAST BUILDING, DIWAN NARAYANAN MENON ROAD, NEAR INDOOR
STADIUM, THRISSUR DISTRICT-680 020, REPRESENTED BY
PROPRIETOR OMANA FRANCIS, W/O. FRANCIS,
PALATHINGAL HOUSE, CHEMBOOKAVU P.O.,
THRISSUR DISTRICT-680 020.
BY ADV. SRI.SHOBY K.FRANCIS
RESPONDENTS:
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1. V.A.RAMESH CHANDRAN
"ROHINI", CHERIYANAATH HOUSE, NEAR SHANTI NAGAR,
BILATHIKULAM, KOZHIKODE-673 006.
2. MRS. SHEEJA RAMESH CHANDRAN
W/O. V.A.RAMESH CHANDRAN, "ROHINI", CHERIYANAATH HOUSE,
NEAR SHANTI NAGAR, BILATHIKULAM, KOZHIKODE-673 006.
3. M/S. RUBBER WOOD INDIA PVT. LTD.
IPC, PHILADELPHIA BUILDING, K.K.ROAD, KANJIKUZHI,
P.B.NO.1425, MUTTAMBALAM P.O., KOTTAYAM-686 004.
4. CONSUMER DISPUTE REDRESSAL FORUM
KOZHIKODE, OFFICE OF CBDRF, KOZHIKODE,
REPRESENTED BY ITS SENIOR SUPERINTENDENT.
5. SUB INSPECTOR OF POLICE
TOWN EAST POLICE STATION, THRISSUR-680 001.
R1-R2 BY ADV. SRI.SHYAM PADMAN
R4 BY GOVERNMENT PLEADER SMT.A.C.VIDHYA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC No.30594 of 2012
APPENDIX
PETITIONER'S EXHIBITS
P1 : COPY OF THE ORDER IN IA NO.1437/2011 IN APPEAL NO.707/2011
DTD.24.10.2011 PASSED BY STATE COMMISSION.
P2 : COPY OF THE COMMON JUDGMENT IN APPEAL NO.707/2011 DTD.22.2.2012
PASSED BY STATE COMMISSION.
P3 : COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT IN EA NO.39/12 IN
CC NO.80/2005, DTD.7.6.2012.
RESPONDENTS' EXHIBITS
R1(a) : COPY OF THE PROCEEDINGS IN EA NO.39/2012 BEFORE
THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.
TRUE COPY
P.S.TO JUDGE
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C.R.
Dama Seshadri Naidu, J.
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WPC No.30594 of 2012
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Dated this the 7th day of April 2017
JUDGMENT
Alappat Home Furniture & Decors, the petitioner, as an opposite party, suffered a judgment in the Consumer District Forum, Kozhikode. Both the parties to the proceedings--the consumers, on one hand, and the opposite party, on the other--filed appeals before the Kerala State Consumer Commission. The petitioner did not succeed. On the other hand, the respondents 1 and 2 did; as a result, the compensation was enhanced from One lakh rupees to Four lakh rupees. As the petitioner did not comply with the appellate judgment, the first and second respondents initiated execution proceedings in E.A.No.39 of 2012.
2. In the execution petition, the Consumer Disputes Redressal Forum, Kozhikode, issued Ext.P3 notice, said to be under Section 27 of the Consumer Protection Act ("the Act"). The petitioner assails this notice treating it to be an arrest warrant issued without any WPC No.30594 of 2012 2 summary adjudication under Section 27(3) of the Act. Though the respondents 1 and 2 filed the counter affidavit, none appeared on their behalf, today.
3. Going by the submissions made by the learned counsel for the petitioner, I gather that the petitioner is a sole proprietory concern--a non-juristic person. I do not see how a non-juristic person could sue or be sued against. It is the proprietor who ought to have been made a party-- a defect curable at any stage, though.
4. Especially in execution proceedings involving arrest as well, it is only a corporeal entity, a human being, that could be made a party. True, when the execution stops with a penalty, even an artificial person--that is, a legal entity--could be a party to the proceedings.
5. Section 27 deals with penalties. Where a trader or a person against whom a complaint is made fails and omits to comply with any order made by an adjudicatory authority under the Act, such trader or person, according to Section 27 of the Act, shall be punishable with imprisonment, or with fine, or with both. The term of imprisonment shall not be less than one month; it may extend to WPC No.30594 of 2012 3 three years. The fine shall not be less than 2000 rupees; it may extend to 10,000 rupees. The execution, I reckon, involves both incarceration and fine. True, sub-section (3) of Section 27 further provides that all offences under this Act may be tried summarily.
6. The petitioner's grievance, as ventilated in the writ petition, is that without recourse to Section 27(3) of the Act, the District Forum has issued Ext.P3 proceedings. Ext.P3 perused, I realise that the District Forum has only directed the petitioner to appear before the Forum "in person" and show cause why the petitioner shall not be ordered to be kept in jail as provided in section 27 of the Consumer Protection Act, for not complying with the Forum's order.
7. First, Ext.P3 is only a show cause title. Second, it is inconceivable how an artificial person, a firm--and a fictitious one, at that--could be arrested, much less imprisoned. From the beginning, the first and second respondents, I am afraid, adopted a flawed process. Instead of showing Alappat Home Furniture and Decors as the opposite party, it ought to have shown its proprietor as the opposite party. We may condone this lapse by reading the cause title on the converse: The Proprietor, Alappat Home Furniture & Decors. WPC No.30594 of 2012 4 We may, then, conclude that the execution petition is against the proprietor rather than the proprietary concern--a fictitious entity, if it were. Otherwise, the Ext.P3 requires the proprietary concern--a non-corporeal entity--to show cause why it should not be arrested. Its getting arrested is an impossibility.
9. Reverting to the facts, I may observe that the Ext.P3 is only a show-cause notice. And against it, no writ petition should lie unless the authority issuing the notice lacks the power or the decision to be taken is a fait accompli. Here, the notice was issued by a competent judicial forum. So, I refuse to entertain this writ petition. I dismiss it. That said, it is always open for the petitioner to approach the District Forum in compliance with Ext.P3 show cause notice and raise all its defences legally permissible.
No order on costs.
Sd/- Dama Seshadri Naidu, Judge
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P.S.TO JUDGE