High Court can interfere under Article 227 of Constitution when there is failure to exercise jurisdiction.

(Revision Petition filed against the order dated 17.12.2002, passed in O.P.No.788/1999 on the file of the District Consumer Disputes Redressal Forum (South), Chennai.)

This Revision Petition has been filed against the order dated 17.12.2002, passed in O.P.No.788/1999 on the file of the District Consumer Disputes Redressal Forum (South), Chennai.

2. The complainant in O.P.No.788/1999 on the file of the District Consumer Disputes Redressal Forum (South), Chennai, is the revision petitioner.

3. The complainant filed O.P.No.788/1999 for directing the respondents/opposite parties to refund the amount of Rs.15,000/- with interest and compensation and costs. On 25.7.2000 the consumer forum directed the respondents/opposite parties to pay an amount of Rs.15,000/- with interest at 18% with a compensation of Rs.5,000/- and with a cost of Rs.500/-. Thereafter the complainant filed an Execution Petition under Sec.27 of the Consumer Protection Act to issue arrest warrant. But the execution petition was returned with an endorsement that already execution petition Nos.96/2000 and 71/2001 were closed as the reference has been registered by BIFR No.358/2000 dated 21.11.2000 and in view of the statutory protection under Sec.22 of Sick Industrial Companies (Special Provision Act), 1985 (hereinafter called SICA), this forum has no jurisdiction and hence the petitioner/decree holder was directed not to file the E.P. hereafter.

4. Aggrieved by the docket order dated 17.12.2002, returning the E.P. without even numbering the same, the above revision petition has been filed under Article 227 of the Constitution of India.

5. Heard both the learned counsel appearing for the petitioner and the respondents. I have also gone through the documents filed and the judgments referred to by them.

6. The learned counsel for the petitioner vehemently contended that the order of the Consumer Forum returning the E.P. is illegal, as Sec.22 of SICA will not apply to the execution petition filed under Sec.27 of the Consumer Protection Act, 1986. On the other hand, the learned counsel for the respondents submitted that Sec.22 of the SICA will apply to this case and there is no error or illegality in the order of the consumer court.

7. The learned counsel for the petitioner in support of his contentions relied on the decision of the Hon'ble Supreme Court reported in 2000 (II) CTC 548 (BSI Ltd. v. Gift Holdings Pvt. Ltd.) to contend that the suit envisaged in Section 22(1) of SICA cannot be stretched to include criminal prosecution initiated under Sec.138 of Negotiable Instruments Act, 1881. In the above decision, the Hon'ble Supreme Court held as follows: -

"13. Switching back to sub-section (1) of Section 22 of SICA, we may point out that its operation commence in respect of the companies involved in this batch of appeals only after the expiry of the period of 15 days envisaged in clause (c) of the proviso to Section 138 of the NI Act within which the companies did not pay the amount covered by the cheques. The ban imposed, as per Section 22(1) of the SICA, is against the maintainability of the following legal actions:

(1) Proceedings for the winding up of the company;

(2) Proceedings for execution, distress or the likes against any of the properties of the company;

(3) Proceedings for the appointment of a receiver in respect of such properties;

(4)Suits for recovery of money or for enforcement of any security against the company or guarantee in respect of any loan or advance granted to the company."

"15. The fallacy of the above contention is two-fold. First is that maintainability of a prosecution proceedings is not to be tested on the touchtone of any practical hurdle in enforcing the sentence which might be imposed on a company after conviction. Second is, there is no insurmountable hurdle for recovery of the fine covered by the sentence even from a sick industrial company because the ban contained in Section 22(1) is only conditional as could as discerned from the