Kerala High Court
Mary Chacko vs Jancy Joseph on 5 August, 2005
Equivalent citations: AIR2005KER291, 2005(3)KLT925, AIR 2005 KERALA 291, 2006 (1) ALL LJ EE 26, 2006 (1) ABR (NOC) 71 (KER), (2005) 4 RECCRIR 554, (2005) 36 ALLINDCAS 208 (KER), (2005) 3 CIVILCOURTC 626, (2005) 2 KER LJ 730, (2005) 3 KER LT 925, (2005) 4 RECCIVR 428
Author: K.S. Radhakrishnan
Bench: Rajeev Gupta, K.S. Radhakrishnan
JUDGMENT K.S. Radhakrishnan, J.
1. Whether a woman can be arrested in execution of an order passed under Section 27 of the Consumer Protection Act, 1986 is the question that has come up for consideration in this case.
2. O.P. No. 740 of 1993 was filed by the fourth respondent in the Original Petition herein before the Consumer Disputes Redressal Forum, Ernakulam (for short "Forum") against the writ petitioner and others for recovery of an amount of Rs. 45,000/- in all which was due to her. Writ petitioner and others were partners of a firm engaged in money lending business. The Forum passed an order on 10.2.1995 directing the writ petitioner and others to pay Rs. 65,768.87 with interest at the rate of 12% per annum on the principal sum of Rs. 45,000/- from 15.6.1989 to 12.4.1992 and thereafter on the total amount of Rs. 65,768.87 and also Rs. 300/- as costs within one month. Amount was not paid, consequently E.P. No. 155 of 1995 was filed before the Forum for execution of the order. First opposite party before the Forum resisted the partition stating that she has no means to pay and that a woman cannot be arrested in execution for non payment of the amount. Forum rejected the petition and directed the parties to comply with the order and posted the matter for further steps to 26.2.1996. Meanwhile Writ Petition was preferred before this Court seeking a declaration that Section 27 of the Consumer Protection Act, 1986 is ultra vires and unconstitutional and the same may be struck down and also for a declaration that the petitioner being a woman cannot be arrested and detained by the Forum in exercise of the powers under Section 27 of the Act and also for other consequential reliefs. Learned single Judge allowed the Writ Petition. Judgment is reported in Mrs. Jancy Joseph v. Union of India and Ors., 1999 (1) KLT 422. Learned single Judge took the view that the provisions of arrest in the Code of Civil Procedure have to be taken in consideration by the Forum while dealing with recovery of money. Consequently, under Section 56 of the Code of Civil Procedure, the Forum shall not order arrest or detention in civil prison of a woman in execution of a decree for payment of money. Aggrieved by the same this appeal has been preferred by the fourth respondent in the Writ Petition.
3. Counsel appearing for the appellant Sri. P. Santhalingam submitted that Section 27 of the Act is constitutionally valid and cannot be assailed. Counsel also submitted that the provisions of Section 56 of the Code of Civil Procedure cannot be imported while dealing with Section 27 of the Consumer Protection Act. Counsel referred to the decision of a Division Bench of this Court in Cyril Britto v. Union of India, 2003 (2) KLT 879 : and submitted that this Court declined to import Section 56 of the Code of Civil Procedure to the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act (for short "RDB Act") and the same principle be applied in the case of Consumer Protection Act as well.
4. Learned counsel appearing for the respondent Sri. C.G. Sunil placed considerable reliance on the decision of the Division Bench of Madras High Court in Registrar, University of Madras v. Union of India and Ors., 1996 CCJ 668 and contended that the provisions of the Code of Civil Procedure be borne in mind by the District Forum or the Commission when powers under Section 27 are exercised. Counsel also submitted that the provisions of the Act are in addition to and in derogation of the provisions of any other law. The constitutional validity of Section 27 of the Act was also raised.
5. Constitutional validity of Section 27 was challenged before this Court in Joseph v. Union of India, 1997 (2) KLT 600) but the challenge was repelled and the decision was quoted with approval by a Division Bench of this Court in Venugopal v. Consumer Disputes Redressal Forum and Ors., 2000 (1) KLJ 733) of which one of us (K.S. Radhakrishnan, J.) was also a party. In Registrar, University of Madras v. Union of India, 1996 CCJ 668, also constitutional validity of Section 27 of the Act was challenged before the Madras High Court and the same was repelled. We are in full agreement with the decision of this Court in Venugopal's case and the decision of the Madras High Court in Registrar, University of Madras v. Union of India and therefore we uphold the validity of Section 27 of the Consumer Protection Act. Therefore, the only question to be considered is whether woman can be arrested in execution of the order passed by the Forum under Section 27 of the Act.
6. Article 15 of the Constitution states that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Clause (3) of Article 15 states that the State can make any special provision for woman and children which would bring affective equality between men and women. Legislature was empowered to make the special provision for women in Section 125 of the Code of Criminal Procedure which is a provision in consonance with Article 15(3) of the Constitution. Even if woman is at fault in a suit for realisation of money, statute has come to the rescue of woman by providing the provision like Section 56 of the Code of Civil Procedure. The question arose as to whether Section 56 would come to the rescue of woman while resorting to Section 25 of the RDB Act. Division Bench of this Court in Cyril Britto v. Union of India, held as follows:
"Thus, in a case where a lady takes a substantial amount of money from a public institution, it is clear that she is engaged in some activity and is, thus liable to the same process as any other judgment debtor. In other words, when the two provisions are harmoniously construed, it is clear that the protection is not absolute. It would not be available when the judgment debtor owes money as much as Rs. 10 lacs or more to a Financial Institution as contemplated under the 1993 Act. The dues under the Act have been treated differently. There is a clear basis for treating the public dues differently from the purely private. Thus a different treatment under Section 25 of the 1993 Act, without anything more would not make Section 56 ultra vires."
Consumer Protection Act is an Act to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers' disputes and for matters connected consumers. The scope of Section 25 and 27 of the Consumer Protection Act came up for consideration before the Apex Court in State of Karnataka v. Vishwabharathi House Building Co-op. Society and Ors., ). The Court held that a bare perusal of Section 25 of the Act clearly shows that thereby a legal fiction has been created to the effect that an order made by District Forum/State Commission or National Commission will be deemed to be a decree or order made by a Civil Court in a suit. Legal fiction so created has a specific purpose i.e. for the purpose of execution of the order passed by the Forum or Commission. Only in the event the Forum/State Commission or the National Commission is unable to execute its order, the same may be sent to the Civil Court for its execution. Furthermore, Section 27 of the Act also confers an additional power upon the Forum and the Commission to execute its order. The said provision is akin to Order XXXIX Rule 2-A of the Code of Civil Procedure or the provisions of the Contempt of Courts Act or Section 51 read with Order XXI Rule 37 of the Code of Civil Procedure. Section 25 should be read in conjunction with Section 27. Section 25 of the Act is extracted below for easy reference.
"25. Enforcement of orders by the Forum, the State Commission or the National Commission. Every order made by the District Forum, the State Commission or the National Commission may be enforced by the District Forum, the State Commission or the National Commission, as the case may be, in the same manner as if it were a decree or order made by a Court in a suit pending therein and it shall be lawful for the District Forum, the State Commission or the National Commission to send, in the event of its inability to execute it, such order to the Court within the local limits of whose jurisdiction."
When a decree for money is sought to be executed under Section 25 of the Consumer Protection Act by a Civil Court, necessarily Civil Court has to bear in mind Section 56 of the Code of Civil Procedure which states that the Court shall not order the arrest or detention in the civil prison of a woman in execution of a decree for payment of money. Therefore, when Civil Court is executing an order passed by the Forum it cannot order arrest of a woman for recovery of the amount. Section 27 of the Act also confers additional power upon the Forum to execute its order. When an order is sought to be executed under Section 25 by a Civil Court, woman cannot be arrested in execution of the order passed by the Forum since Section 56 is applicable in execution of the decree through a Civil Court. Same analogy could be applied when the Forum itself seeks to execute a similar order under Section 27 of the Act. Just like Civil Court, in our view, Forum should also bear in mind the provisions of the Code of Civil Procedure when an application is made before it for arrest of a woman in execution of money decree. Madras High Court in Registrar, University of Madras v. Union of India and Ors., 1996 CCJ 668 has stated that the Forum should bear in mind the provisions of the Code of Civil Procedure when powers under Section 27 are exercised. We also subscribe the same view when an application is made not only under Section 25 but also under Section 27 of the Act for execution of an order passed by the Forum for realization of money. This Court in Cyril Britto's case, supra took the view that benefit of Section 56 of the Code of Civil Procedure would not be available when amount is sought to be recovered under the RDB Act. The Court held that there is clear basis for treating the public dues differently from the purely private and therefore a differential treatment under Section 25 of the RDB Act without anything more would not make Section 56 ultra vires. The claim for realization of public money stands on a different footing. We therefore fully subscribe to the view of the Division Bench in Cyril Britto's case that the principle laid down in Section 56 cannot be imported when money is sought to be realised under the provisions of the RDB Act. Provisions of the Consumer Protection Act cannot be equated with that of the RDB Act especially when the order has been passed for realisation of money.
7. In such circumstances, we find no infirmity in the judgment of the learned single Judge and the appeal is therefore dismissed. The Forum could take other steps to execute the order.