Back
2021 Supreme(Ker) 815
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.B. SURESH KUMAR, J.
M/s. Shriram Transport Finance Company Limited – Petitioner
Versus
Pradeep S/o Late Ramachandran – Respondent
W.P. (C) No. 17828 of 2021
Decided On : 20-10-2021
Advocate Appeared:
For the Petitioners: C. Harikumar, Sandra Sunny, Arun Kumar M.A.
For the Respondent: B. Vinitha.
Point of Law: Where during the pendency of any proceeding before the District Commission, if it appears necessary, it may pass such interim order as is just and proper in the facts and circumstances of the case.
Headnote:
Motor Vehicles Act, 1988 - Section 51(5) - Consumer Protection Act, 2019 - Section 38 (8) - Constitution of India,1950 - Article 226 - Arbitration and Conciliation Act, 1996 - Writs Jurisdiction - Procedure on admission of complaint - Power of judicial review - Whether there is lack of jurisdiction or merely error within jurisdiction, needs to be resolved by construing the facts of the case on hand - Whether Ext.P5 can be said to be an order vitiated by lack of jurisdiction.
Finding of the court: Extracted provision, jurisdiction aforesaid is so wide that Commission can pass any interim order, if it appears to it necessary, as is just and proper in facts and circumstances of case. - Case of petitioner is only that Commission does not have jurisdiction to pass an interim order in nature of Ext.P5. - In so far as petitioner does not challenge jurisdiction of the Commission to enter upon an enquiry to pass an interim order as is just and proper in facts and circumstances of case, none of those reasons would make out a case of lack of jurisdiction on part of Commission. - Those reasons, on other hand, could be considered only as errors committed by Commission in order passed pursuant to enquiry to pass interim order. As such, same would only amount to errors within jurisdiction. - Position would have been certainly different, if Commission has no power to pass an interim order at all.
Result: Writ petition, dismissed.
JUDGMENT :
P.B. SURESH KUMAR, J.
1. Petitioner is a Non Banking Financial Company. The father of the first respondent availed a loan from the petitioner for purchase of a vehicle. Ext.P1 is the agreement entered into by the father of the first respondent with the petitioner in this regard. It is stated that when the father of the first respondent committed defaults in remitting the instalments of the loan, the petitioner issued a notice to him and also to the guarantors to the loan transaction, calling upon them to pay the overdue instalments of the loan. It is also stated that on receipt of the said notice, one of the guarantors to the loan transaction who is a sibling of the first respondent surrendered the vehicle to the petitioner, as the father of the first respondent died in the meanwhile. It is further stated by the petitioner that they have issued thereafter Ext.P2 notice to the guarantors to the loan transaction calling upon them to liquidate the balance outstanding in the loan account and to take back the vehicle and informing them that the petitioner would otherwise initiate arbitration proceedings as provided for in Ext.P1 agreement for realisation of their dues by selling the vehicle. It is further stated by the petitioner that since the requirements in Ext.P2 notice have not been complied with by the guarantors to the loan transaction, arbitral proceedings have been initiated by the petitioner and the same is pending.
2. In the meanwhile, the first respondent instituted a complaint before the District Consumer Disputes Redressal Commission, Thrissur (the Commission) alleging that the vehicle purchased with the loan provided by the petitioner has been taken possession forcibly by the petitioner and that the said conduct of the petitioner would amount to unfair trade practice and deficiency of service. Ext.P3 is the complaint preferred by the first respondent in this regard. The prayer in Ext.P3 complaint, in the circumstances, was for a direction to the petitioner to return the vehicle to the first respondent. On Ext.P3 complaint, the Commission issued notice to the petitioner directing them to appear before the Commission on 15.07.2020. In Ext.P3 complaint, the first respondent filed I.A. No. 147 of 2020 seeking a direction to the petitioner to return the vehicle to him, and on the said interlocutory application, the Commission passed Ext.P5 interim order without notice to the petitioner on 27.02.2020 directing the petitioner to return the vehicle to the first respondent. It is stated by the petitioner that they were not aware of Ext.P5 interim order as the same was not served on them. Later, on 05.02.2021, the first respondent filed Ext.P6 interlocutory application in the complaint seeking action against the petitioner for non-compliance of Ext.P5 order, and on Ext.P6 interlocutory application, the Commission issued Ext.P7 notice directing the petitioner to appear before the Commission on 05.03.2021. The writ petition was instituted, in the circumstances, challenging Ext.P5 order mainly on the ground that the Commission has no jurisdiction to pass an order in the nature of Ext.P5.
3. Heard the learned counsel for the petitioner.
4. The learned counsel for the petitioner reiterated that the Commission functioning under the Consumer Protection Act, 2019 (the Act) has no jurisdiction to pass an interim order in the nature of Ext.P5. According to the learned counsel, insofar as the petitioner has already initiated proceedings under the Arbitration and Conciliation Act, 1996, the first respondent can obtain the relief sought for in I.A. No. 147 of 2020 only from the Arbitrator in the pending arbitration proceedings, if at all he makes out a case for such a relief. It was also contended by the learned counsel that the impugned order is against the spirit of Section 51(5) of the Motor Vehicles Act, 1988. It was further contended by the learned counsel that at any rate, the Commission has no jurisdiction to pass an order in
