Kerala High Court
Ria Thomas vs Tata Realty And Infrastructure Ltd on 12 June, 2025
2025:KER:41725
WP(C) NO. 26226 OF 2024
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
THURSDAY, THE 12TH DAY OF JUNE 2025 / 22ND JYAISHTA, 1947
WP(C) NO. 26226 OF 2024
PETITIONER/COMPLAINANT NO.9:
RIA THOMAS
AGED 37 YEARS
DAUGHTER OF MRS THOMAS MARKOSE,
RESIDING AT TOWER NO 2, FLAT NO1D. TRITVAM
APARTMENT COMPLEX, GOSHREE - PACHALAM LINK
ROAD, MARNE DRIVE. KOCHI, PIN - 682018
BY ADVS.
SRI.JOHNSON GOMEZ
SRI.SANJAY JOHNSON
SHRI.JOHN GOMEZ
SHRI.ARUN JOHNY
SHRI.SANJITH JOHNSON
SHRI.ABIN JACOB MATHEW
SMT.DEEBU R.
RESPONDENTS/RESPONDENT NO.1:
1 TATA REALTY AND INFRASTRUCTURE LTD
REPRESENTED BY ITS THE MANAGING DIRECTOR,
HAVING ITS REGISTERED OFFICE AT E BLOCK,
VOLTAS PREMISES, T B KADAM MARG, CHINCHPOKLI,
MUMBAI, MAHARASHTRA, PIN - 400033
2025:KER:41725
WP(C) NO. 26226 OF 2024
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2 THE PROJECT HEAD
TATA REALTY AND INFRASTRUCTURE LTD.,
GOSHREE PACHALAM LINK ROAD, KOCHI- PIN NO.,
PIN - 682018
3 MR. OBAIDULLA M K
AGED 75 YEARS, SON OF MR. KOCHUNNY,
RESIDING AT TOWER NO 2, FLAT NO 18B.
TRITVAM APARTMENT COMPLEX, GOSHREE - PACHALAM
LINK ROAD, MARNE DRIVE. KOCHI, PIN - 682018
4 LT COL ANU SHAJI,
AGED 54 YEARS, SON OF MR. P.T. THOMAS,
RESIDING AT TOWER NO 2, FLAT NO 20C.
TRITVAM APARTMENT COMPLEX, GOSHREE - PACHALAM
LINK ROAD, MARNE DRIVE. KOCHI, PIN - 682018
5 MR. SUNIL KUMAR
AGED 53 YEARS, SON OF MR. PANKAJAKSHAN,
RESIDING AT TOWER NO 3, FLAT NO 8D.
TRITVAM APARTMENT COMPLEX, GOSHREE - PACHALAM
LINK ROAD, MARNE DRIVE. KOCHI, PIN - 682018
6 SANDHYA ASHOK
AGED 52 YEARS, WIFE OF MR. ASHOK GOPINATHAN
NAIR, RESIDING AT TOWER NO IC, FLAT NO 7C.
TRITVAM APARTMENT COMPLEX, GOSHREE - PACHALAM
LINK ROAD, MARNE DRIVE. KOCHI, PIN - 682018
7 ANU ISSAC
AGED 38 YEARS, DAUGHTER OF MR. VK ISSAC,
RESIDING AT TOWER NO IC, FLAT NO 19C. T
RITVAM APARTMENT COMPLEX, GOSHREE - PACHALAM
LINK ROAD, MARNE DRIVE. KOCHI, PIN - 682018
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WP(C) NO. 26226 OF 2024
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8 ASHOK BHAT
AGED 51 YEARS, SON OF MV RAMACHANDRA BHATT,
RESIDING AT TOWER NO 1, FLAT NO 3D.
TRITVAM APARTMENT COMPLEX, GOSHREE - PACHALAM
LINK ROAD, MARNE DRIVE. KOCHI, PIN - 682018
9 SILVI XAVIER VALIAMUKATH
AGED 50 YEARS, SON OF MR. V.S XAVIER,
RESIDING AT TOWER NO 2, FLAT NO 5C.
TRITVAM APARTMENT COMPLEX, GOSHREE - PACHALAM
LINK ROAD, MARNE DRIVE. KOCHI, PIN - 682018
0 BINDU GEORGE,
AGED 62 YEARS, DAUGHTER OF MR MATHAI MARKOSE,
RESIDING AT TOWER NO T1, FLAT NO 4D.
TRITVAM APARTMENT COMPLEX, GOSHREE - PACHALAM
LINK ROAD, MARNE DRIVE. KOCHI, PIN - 682018
11 SIBY KOTTARAM
AGED 61 YEARS, SON OF MR JOSEPH THOMAS
KOTTARAM, RESIDING AT TOWER NO IC, FLAT NO 20C.
TRITVAM APARTMENT COMPLEX, GOSHREE - PACHALAM
LINK ROAD, MARNE DRIVE. KOCHI, PIN - 682018
12 DR. RAHUL PILLAI,
AGED 44 YEARS, SON OF MR KRISHNAN KUTTY PILLAI
D, RESIDING AT TOWER NO 1, FLAT NO 14B.
TRITVAM APARTMENT COMPLEX, GOSHREE - PACHALAM
LINK ROAD, MARNE DRIVE. KOCHI, PIN - 682018
13 RAHUL THOMAS
AGED 40 YEARS, MR MARKOSE THOMAS,
RESIDING AT TOWER NO IC, FLAT NO 4B.
TRITVAM APARTMENT COMPLEX, GOSHREE - PACHALAM
LINK ROAD, MARNE DRIVE. KOCHI, PIN - 682018
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WP(C) NO. 26226 OF 2024
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14 SAJU AUGUSTINE
AGED 58 YEARS, SON OF MR. K.T AUGUSTINE,
RESIDING AT TOWER NO 3, FLAT NO 16C.
TRITVAM APARTMENT COMPLEX, GOSHREE - PACHALAM
LINK ROAD, MARNE DRIVE. KOCHI, PIN - 682018
15 TINKU V J
AGED 42 YEARS, SON OF MR. V.M. JALALUDHEEN,
RESIDING AT TOWER NO 3, FLAT NO 17D.
TRITVAM APARTMENT COMPLEX, GOSHREE - PACHALAM
LINK ROAD, MARNE DRIVE. KOCHI, PIN - 682018
16 KERALA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM,
REPRESENTED BY ITS SECRETARY, PIN - 695001
BY ADVS.
SHRI.ALEXANDER JOSEPH MARKOS
SRI.V.ABRAHAM MARKOS
SHRI.ABRAHAM JOSEPH MARKOS
SRI.ISAAC THOMAS
SRI.P.G.CHANDAPILLAI ABRAHAM
SHRI.JOHN VITHAYATHIL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 12.06.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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WP(C) NO. 26226 OF 2024
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C.R.
JUDGMENT
The petitioner is the complainant No.9 in C.C. No.9/21 on the files of the Kerala State Consumer Disputes Redressal Commission. The said complaint was filed by the petitioner along with respondents 3 to 13, against the respondents 1 and 2 herein. Various reliefs were sought in the said complaint against the respondents 1 and 2.
2. The grievance of the petitioner which necessitated the filing of this writ petition is that, as per Ext.P7 order, the complaint submitted by the petitioner and other complainants, was dismissed for non prosecution, without going into the merits of the contentions. The challenge raised by the petitioner is that, as per the statutory stipulations contained in the Consumer Protection Act, 2019, particularly Section 38(2)
(c) read with Section 49 of the Consumer Protection Act, 2025:KER:41725 WP(C) NO. 26226 OF 2024 6 2019, the State Commission could not have dismissed a complaint for non prosecution and it was obligatory on the part of the Commission to decide the matter on merits, even if the complainant fails to appear on the date of hearing. It was in these circumstances, this writ petition was filed by the petitioner, impleading other complainants as respondents 3 to
13.
3. The respondents 1 and 2 entered appearance through Counsel and a detailed counter affidavit has been filed. In the counter affidavit, the maintainability of the writ petition was challenged, on the reason that, even though the petitioner alone filed the writ petition, it was in fact on behalf of the respondents 3 to 13 as well, and therefore, the court fee at the rate of Rs.100 per person under the provisions of the Kerala Court Fee and Suit Valuation Act, 1959, ought to have been paid. Apart from the above, it was also contended 2025:KER:41725 WP(C) NO. 26226 OF 2024 7 that, by virtue of Rule 12 of the Consumer Protection (Consumer Disputes Redressal Commissions) Rules, 2020, the State Commission is empowered to dismiss a compliant for default due to non appearance of the complainant. It is also averred that, in Section 49, by which the section 38 was made applicable to the State Commission, it is specifically mentioned that the provisions in Section 38 would be applicable to the State Commission with "necessary modifications". Therefore, it was contended that, the stipulations in Rule 12 of the Consumer Protection (Consumer Disputes Redressal Commissions) Rules, 2020 would amount to " necessary modification" as envisaged in Section 49 and therefore, the order impugned in this case is not liable to be interfered with.
4. Apart from the above, it was also contended that, Section 58(1)(b) provides for an alternate remedy to approach 2025:KER:41725 WP(C) NO. 26226 OF 2024 8 the National Commission, in case the State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Therefore, on the ground of existence of an alternate remedy, this writ petition is not maintainable.
5. I have heard Sri.Johnson Gomez, learned Counsel for the petitioner and Sri.John Vithayathil, learned Counsel for the respondents 1 and 2.
6. To substantiate the illegality of Ext.P7 order, by which the complaint of the petitioner was rejected for non appearance of the complainants , the learned Counsel for the petitioner, places reliance upon the decision rendered by this Court in Suresh Nathan v. The State Consumer Dispute Redressal Commission [2025 (2) KLT 97], wherein it was held that, the State Commission cannot dismiss a complaint 2025:KER:41725 WP(C) NO. 26226 OF 2024 9 otherwise than on merits when complainant fails to appear before the Forum.
7. However, the learned Counsel for the respondents 1 and 2 attempts to distinguish the said judgment, by pointing out that, while deciding the issue, the impact of Section 49 read with Rule 12 of the Consumer Protection (Consumer Disputes Redressal Commissions) Rules, 2020, was not brought to the notice of the said Court. Therefore, the learned Counsel pointed out that, the said decision cannot be made applicable to this case, without referring to the statutory provisions relied on by the petitioner.
8. After going through the observations in Suresh Nathan's case referred to above, the decision relied on by the learned Counsel for the petitioner, I find that, that aspect was not brought to the notice of this court and therefore, it is 2025:KER:41725 WP(C) NO. 26226 OF 2024 10 necessary that the said contention is to be answered. In the decision referred to above, while interfering with the order passed by the State Commission in the said case by dismissing the complaint for non appearance, the reliance was placed on Section 38 read with Section 49 of the Consumer Protection Act, 2019.
9. Section 38 contemplates the manner in which the complaint has to be admitted and the same has to be disposed of by the District Consumer Disputes Redressal Commission. However, as per Section 49, the provisions relating to the complaints under Sections 35, 36, 37, 38 and 39 were made applicable to the disposal of the complaints by the State Commission. The said provisions reads as follows:
"49. Procedure applicable to State Commission.- (1) The provisions relating to complaints under sections 35, 36, 37, 38 and 39 shall, with such modifications 2025:KER:41725 WP(C) NO. 26226 OF 2024 11 as may be necessary, be applicable to the disposal of complaints by the State Commission.
(2) Without prejudice to the provisions of sub-section (1), the State Commission may also declare any terms of contract, which is unfair to any consumer, to be null and void."
10. The specific contention raised by the learned Counsel for the respondents 1 and 2 is that, as per Sub section (1) of Section 49, the stipulations contained in Sections 35, 36, 37, 38 and 39 are made applicable to the State Commissions with "such modifications as may be necessary". Therefore, according to the respondents 1 and 2, as the expression in Section 49 is not mutatis mutandis, but "with such modification as may be necessary" the provisions contained in Consumer Protection (Consumer Disputes Redressal Commissions) Rules, 2020, become relevant. This is because, Rule 12 (4) of the Consumer Protection 2025:KER:41725 WP(C) NO. 26226 OF 2024 12 (Consumer Disputes Redressal Commissions) Rules, 2020, enables the National Commission, to dismiss a complaint for default in case the appellant or his authorized agent fails to appear. As per Sub-rule 9 of Rule 12, the procedure laid down in Rule 12, were made applicable to the State Commission and the District Commission. The Sub-rules (4) and (9) of Rule 12 reads as follows:
"(4) On the date of hearing or any other date to which hearing may be adjourned, the parties or their authorised agents shall appear before the National Commission, and where-
(a) the appellant or his authorised agent fails to appear, the National Commission may, in its discretion, either dismiss the complaint for default or decide it on merits;
(b) the respondent or his authorised agent fails to appear, the National Commission may decide the complaint ex-parte on the merits of the case. (5) *** 2025:KER:41725 WP(C) NO. 26226 OF 2024 13 (6) *** (7) *** (8) *** (9) The State Commission and the District Commission shall follow the procedure specified in this rule, with such modifications as may be necessary, in respect of the complaint before them."
11. Therefore, it was contended that, as the statutory procedure contemplated under Section 38 of the Consumer Protection Act, 2019, was made applicable to the State Commission with "such modification as may be necessary", such procedure has to be implemented, taking into account the modification contemplated under Sub-rule 4 of Rule 12 of the Consumer Protection (Consumer Disputes Redressal Commissions) Rules, 2020, as it amounts to a modification as envisaged in Section 49.
12. I have carefully gone through the statutory provisions contained in the Consumer Protection Act and the 2025:KER:41725 WP(C) NO. 26226 OF 2024 14 Rules referred to above. The first aspect to be noticed in this regard is that, the expression used in Section 49 is "with such modification as may be necessary" and not "as may be prescribed". The relevance of Rules, would come into play under normal circumstances, in cases where the modification was envisaged "as prescribed" which would indicate that, such prescription should be introduced by way of Rules to be framed under the Act. In this case, such a stipulation is not there, and the expression is "such modification as may be necessary". Therefore, the only meaning that could be assigned to the said words is that, the procedure contemplated under Section 38 should be implemented, with such modification as are necessary to implement the same for all practical purposes, when such procedure being adopted by the State Commission. In other words, under no circumstances, such expression could be interpreted by 2025:KER:41725 WP(C) NO. 26226 OF 2024 15 assigning a meaning that, the said procedure is to regulated by a subordinate legislation.
13. There is yet another aspect, which makes the contentions raised by the learned Counsel for the respondents 1 and 2 unsustainable. Section 38(3)(c) imposes an obligation upon the State Commission to decide the complaint on merits if the complainant fails to appear on the date hearing. On the other hand, the stipulations contained in Sub-rule 4 of Rule 12 of the Rules 2020, which is originally intended to be made applicable to the National Commission, authorizes the Commission in its discretion, either to dismiss the compliant for default or decide it on merits. As per Sub Rule (9) of Rule 12, the procedure specified in Rule 12, is made applicable "with such modification as may be necessary, in respect of the complaint before them. As far as the stipulations in Rule 12 (4) is concerned, it is completely 2025:KER:41725 WP(C) NO. 26226 OF 2024 16 contrary to the statutory stipulations contained in Section 38(3)(c). Therefore, to that extent, there is a conflict between the provision contained in the Consumer Protection Act and the Rules made thereunder. It is well settled that, in such circumstances, the stipulations contained in the Act would prevail over the provisions in the Rules. Therefore, on that reason also, the contentions raised by the learned Counsel for the respondents 1 and 2 cannot be entertained. Thus the only conclusion possible is that, the order passed by the State Commission is contrary to the statutory provision and hence not legally sustainable.
14. Another contention raised by the learned Counsel for the respondents 1 and 2 is with regard to the maintainability of this writ petition due to non payment of requisite court fees. This Court has already found that, the order passed by the State Commission is legally 2025:KER:41725 WP(C) NO. 26226 OF 2024 17 unsustainable being contrary to the statutory stipulations contained in Section 38(3)(c) read with Section 49. As far as the contentions raised by the learned Counsel for the respondents 1 and 2 with regard to the non payment of court fee is concerned, the crucial aspect to be noticed is that, this writ petition is submitted by one person and the necessary court fee for the same has already been paid. However, it is the contention of respondents 1 and 2 that, the said writ petition is filed on behalf of the respondents 3 to 13 also and therefore, the entire court fee ought to have been paid. However, as the petitioner alone contested the matter, by challenging the order, it was not necessary for the petitioner to undertake the burden of paying additional court fee for the respondents 3 to 13. Of course, it is true that, if the writ petition is allowed, probably the respondents 3 to 13 would be the beneficiaries of such a relief, but, that reason by itself 2025:KER:41725 WP(C) NO. 26226 OF 2024 18 cannot be a ground to insist that the petitioner should pay the court fee payable by the respondents 3 to 13. In other words, the fact that the relief sought by the petitioner, would be beneficial to the respondents 3 to 13 also, who were the other complainants in the said compliant, by itself cannot be a reason to hold that the petitioner has filed this writ petition on behalf and for the benefit of the said persons. At this juncture, the learned Counsel for the respondents 1 and 2 pointed out that, since the petitioner alone challenged the impugned order, if at all any interference is found necessary, the same should be confined to the claim of the petitioner alone. However, as observed above, it is already found that the order passed by the State Commission is unsustainable in law, and it is liable to be interfered with. Therefore, I do not find it proper to confine the relief to the petitioner alone.
15. The last contention raised by the learned Counsel 2025:KER:41725 WP(C) NO. 26226 OF 2024 19 for the respondents 1 and 2 is that, there is an alternate remedy available to the petitioner to approach the National Commission as contemplated under Section 58(1)(b) of the Consumer Protection Act, 2019. As observed above I have already found that, the order impugned in this case is not legally sustainable, as it goes against the specific stipulations contained in the Consumer Protection Act. As far as the alternate remedy is concerned, even though the same can be a reason for this Court not to entertain this writ petition under Article 226 of Constitution of India, but, it cannot be said that, a writ petition is not maintainable at all. To be precise, when there is an alternate remedy available, it could be a case where the writ petition is not entertainable. As observed above, when the order impugned in the writ petition is against a statutory provision, that violates the statutory rights of the party concerned, there is nothing wrong in invoking the extra 2025:KER:41725 WP(C) NO. 26226 OF 2024 20 ordinary discretionary jurisdiction of this Court under Article 226 of Constitution of India irrespective of the availability of statutory provisions. It is a well settled position that, existence of alternate remedy is not an absolute bar to entertain a writ petition and in case where the authority concerned acted without jurisdiction or beyond jurisdiction or in excess of jurisdiction, the powers can be invoked by this court. In this case, evidently, the State Commission, while dismissing the complaint for non appearance of the complainant, exercised a power which was not vested upon the Commission. Therefore, I find that, from the facts and circumstances of the case, this is a fit case in which the jurisdiction under Article 226 of the Constitution of India can be invoked.
Thus, after considering all the relevant aspects and examining the statutory provisions referred to above, I find that, the impugned order viz., Ext.P7, is liable to be interfered 2025:KER:41725 WP(C) NO. 26226 OF 2024 21 with. Accordingly, this writ petition is disposed of, quashing Ext.P7 order passed by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram in Complaint No.9/2021, with a direction to the Commission to restore the complaint into file and consider the same on merits after hearing all the parties concerned.
Sd/-
ZIYAD RAHMAN A.A. JUDGE scs 2025:KER:41725 WP(C) NO. 26226 OF 2024 22 APPENDIX OF WP(C) 26226/2024 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE COMPLAINT IN CC NO.
9/2021 FILED BY THE PETITIONER BEFORE THE STATE CONSUMER DISPUTE REDRESSAL COMMISSION Exhibit P2 A TRUE COPY OF ORDER DATED 25/10/2021 ADMITTING THE COMPLAINT, IN CC NO.
9/2021 PASSED BY THE STATE CONSUMER DISPUTE REDRESSAL COMMISSION Exhibit P3 A TRUE COPY OF THE OBJECTION DATED 16/12/2021 FILED BY THE RESPONDENT NO.1 AND 2 IN CC NO. 9/2021 Exhibit P4 A TRUE COPY OF THE INTERIM APPLICATION DATED 4/01/2022 FILED BY THE RESPONDENTS NO.1 AND 2 IN CC NO.
9/2021Exhibit P5 A TRUE COPY OF THE OBJECTION DATED 28/03/2022 FILED BY COMPLAINANT NO. 4 IN THE PETITION FOR MAINTAINABILITY FILED BY THE RESPONDENT NO.1 AND 2 Exhibit P6 A TRUE COPY OF THE ORDER DATED 27/10/2022 IN CC NO. 9/2021 PUBLISHED IN THE CONFONET Exhibit P7 A TRUE COPY OF THE ORDER DATED 21/03/2024 IN CC NO. 9/2021 PASSED BY THE STATE CONSUMER DISPUTE COMMISSION Exhibit P8 A TRUE COPY OF THE LIST OF POSTINGS IN CC NO.9/2021 PUBLISHED IN THE CONFONET Exhibit P9 A TRUE COPY OF THE APPLICATION DATED 31/07/2024, SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO. 16