The Ramco Cements Ltd vs The Kerala State Consumer ...
2021 Latest Caselaw 22115 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
         THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
                       WP(C) NO. 26316 OF 2018
PETITIONER/S:

               THE RAMCO CEMENTS LTD
               FORMERLY M/S.MADRAS CEMENTS LTD.,HAVING ITS
               OFFICE AT 40/6955,D-1 & D-2,THIRD FLOOR,OMANA
               BUILDINGS,JEWS STREET,EERNAKULAM,KOCHI-682 035.
               REPRESENTED BY ITS DEPUTY GENERAL
               MANAGER,MARKETING ADMINISTRATION AND IT,
               SRI.C.MARIAPPAN,S/O.CHINNA MARIAPPAN,AGED 55
               YEARS.
               BY ADV SRI.LEO GEORGE

RESPONDENT/S:

    1          THE KERALA STATE CONSUMER DISPUTES REDRESSAL
               COMMISSION, SISU VIHAR
               LANE,VAZHUTHAKAD,THIRUVANANTHAPURAM-695 004.
    2          ANANDARAJ K.N., KARUPPANALIL HOUSE,KAKKAD P.O.,
               (VIA),PUTHUPPADI,KOZHIKODE DISTRICT-673 586.
    3          SHAJI THOMAS, PROPRIETOR,NADAKKAL
               HARDWARES,ENGAPUZHA P.O.,KOZHIKODE DISTRICT-673
               486.
    4          THE CONSUMER DISPUTES REDRESSAL FORUM
               KOZHIKODE-673 001.
    5          NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
               NEW DELHI-110 001.

OTHER PRESENT:

               SMT.DEEPA NARAYANAN, SR.GP

        THIS    WRIT   PETITION     (CIVIL)    HAVING    COME    UP    FOR
ADMISSION       ON   05.11.2021,    THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
                                                             -2-
W.P.(C). No. 26316 of 2018




                               P.V.KUNHIKRISHNAN, J.
                               ==============================================================


                                W.P.(C) No.26316 of 2018
                     ===================================================================================


                  Dated this the 5th day of November, 2021


                                                JUDGMENT

The petitioner in this writ petition is the second opposite

party in C.C.No.55 of 2008 on the file of the Consumer

Disputes Redressal Forum (CDRF), Kozhikode. As per Ext.P1

order, the CDRF directed the petitioner to pay an amount of

Rs.1,35,000/- towards the cost of casting new slab and to pay

Rs.10,000/- towards compensation to the complainant. The

first opposite party in Ext.P1 is directed to pay Rs.5,000/- as

cost to the petitioner therein. Aggrieved by Ext.P1, the

petitioner herein filed an appeal before the State Consumer

Disputes Redressal Commission, Thiruvananthapuram. As per

Ext.P2, the State Commission dismissed the appeal. Thereafter,

the petitioner approached the National Disputes Redressal

W.P.(C). No. 26316 of 2018

Commission by filing a revision. The National Commission, as

per Ext.P3 interim order, directed the petitioner to deposit 50%

of the amount awarded with the State Commission, within a

period of four weeks. The petitioner deposited the said amount

as evident by Exts.P4 and P5. Subsequently, the National

Commission dismissed the revision also as evident by Ext.P6

order. Again the petitioner challenged these orders before the

Apex Court by filing the Special Leave Petition, and the same is

also ended in dismissal as per Ext.P7 order. Thereafter, the

decree holder approached the CDRF to get the amount and the

petitioner deposited the balance amount after deducting the

deposits already made as per the condition precedent to file

the appeal before the State Commission and also as directed in

Ext.P3 order. The Execution Court granted liberty to approach

the State Commission to get the amount already deposited as

per the direction of the National Commission and the amount

W.P.(C). No. 26316 of 2018

deposited as a precondition to file the appeal before the State

Commission. Accordingly, the decree holder filed an

application before the State Commission to get the amount

deposited as stated above. As per Ext.P15 order, the same is

rejected by the State Commission. Aggrieved by the same, this

writ petition is filed.

2. Heard the learned counsel for the petitioner and

also the learned Government Pleader for the respondents.

3. I perused Ext.P15 order. It is an admitted fact that

the petitioner deposited certain amount as a precondition for

filing an appeal before the State Commission. It is also an

admitted fact that the petitioner deposited the amount as

directed by the National Commission in Ext.P3 order. It is also

an admitted fact that the petitioner deposited the balance

amount before the Execution Court and the same is already

disbursed to the decree holder. Now the State Commission

W.P.(C). No. 26316 of 2018

rejected the claim of the decree holder to disburse the amount

deposited by the petitioner before the State Commission as a

precondition to file the appeal and also as per Ext.P3 order. It

will be better to extract the order in Ext.P15.

"Complainant in CC No.55/2008 on the file of Consumer Disputes Redressal Forum, Kozhikode has filed this petition for claiming sum of Rs.25,000/-

deposited by the second opposite party/appellant for entertaining the appeal preferred against the Order of the forum. Complaint was allowed in favour of the complainant and appeal and revision preferred by the second opposite party against such orders had been dismissed. Now the claim is made for the amount deposited by second opposite party for entertaining his appeal stating that when execution proceedings were taken before the forum, the forum observed that the amount deposited for entertaining the appeal could be adjusted in the decree debt due. Whether or not the forum had observed so it need only be stated that the commission alone could have passed appropriate orders over the sum deposited for entertaining the appeal. In the present case appeal had been dismissed and no order was passed over the

W.P.(C). No. 26316 of 2018

sum deposited for entertaining the appeal. No claim for refund thereof can be canvassed by any of the parties to the proceedings. Petition is dismissed."

4. I think the stand of the State Commission cannot be

accepted. The petitioner deposited the amount while filing the

appeal as a precondition and as evident by Ext.P3, the

petitioner further deposited 50% of the award amount. The

petitioner need to deposit only the balance amount before the

Execution Court. The stand of the State Commission that the

amount deposited by the petitioner as a precondition to file the

appeal cannot be released to the petitioner is not justifiable.

This Court considered similar question in the judgment of this

Court in Mohammed K.B. v. Kerala State Consumer Disputes

Redressal Commission and others (2019 (2) KHC 435). The

relevant paragraphs of the above judgment are extracted

hereunder:

"5. The discussion of facts made above would make it

W.P.(C). No. 26316 of 2018

clear that, it was on account of the settlement entered into by and between the parties that an application was moved before the Commission to release the amount of Rs. 25,000/- deposited by the petitioner. However, the Commission dismissed the same, stating that petitioner is not entitled to claim for such amount and the amount can only be released to the decree holder in accordance with R.29 of the Consumer Protection Rules, 2005, which read thus:

"29. Remittance of deposit amount.- The deposit amount prescribed in this rule as a condition precedent to institute an appeal shall be paid to the State Commission by way of demand draft of banker's cheque of any Nationalised Bank drawn in favour of the Registrar and Secretary of the State Commission, payable at Thiruvananthapuram and the Registrar and Secretary shall, in turn, deposit the amount in a Nationalised Bank in the deposit account of the Commission to be opened. Provided that in justified cases, the amount so deposited shall be released to the decree holder on such conditions and on execution of a proper bond, subject to the satisfaction of the State Commission."

6. In my considered view, the said stand adopted by the Commission cannot be sustained under law. First

W.P.(C). No. 26316 of 2018

of all, it is an amount deposited by the petitioner as a condition precedent for maintaining the appeal, in accordance with the provisions of the Act and the Rules. It is true, as per the provisions, the amount could be released to the decree holder by the Commission on such conditions and on execution of a proper bond subject to the satisfaction of the Commission, but I am of the view, the proviso to R.29 only deals with an intervening circumstances during the pendency of the appeal. The discretion provided under the proviso is only with respect to the release of the amount to the decree holder during the pendency of the appeal and that discretion available to the Commission cannot be extended for release of the money to the decree - holder after the disposal of the appeal. Which thus also means, if the amount is sought to be released by the decree - holder after the dismissal of the appeal, the Commission shall release the amount and no discretion can be exercised as per the proviso. However, the circumstances herein are different, since the subject matter is settled by and between the parties, and it was provided in the agreement that petitioner is at liberty to seek release of the money from the Commission. Moreover, there is no provision either under the Consumer Protection

W.P.(C). No. 26316 of 2018

Act or the Rules to detain such amounts by the Commission without being paid either to the decree holder or the judgment debtor, depending on the facts and circumstances of the case, like the one on hand and the provisions of R.29 of the Rules shall be read down to mean so."

5. In the light of the principle laid down by this Court

and also in the light of the facts and circumstances of the case,

I think the amount deposited before the State Commission is to

be released to the decree holder. The learned counsel for the

petitioner submitted that the amount is deposited as per Ext.P3

in the State Commission by way of Fixed Deposit. The counsel

for the petitioner submitted that the petitioner has no objection

in releasing the amount with interest to the decree holder.

6. In such circumstances, I think this writ petition can

be allowed.

Therefore, this writ petition is allowed. Ext.P15 order is

set aside. The Kerala State Consumer Disputes Redressal

W.P.(C). No. 26316 of 2018

Commission, Thiruvananthapuram is directed to release the

amount deposited by the petitioner as a precondition to file

Ext.P2 appeal and also the amount deposited as per Ext.P3

order forthwith to the 2nd respondent. If the above amount is

in fixed deposit, the interest accrued to the amount also should

be given to the 2nd respondent.

Sd/-

P.V.KUNHIKRISHNAN JUDGE das

W.P.(C). No. 26316 of 2018

APPENDIX OF WP(C) 26316/2018

PETITIONER EXHIBITS EXT.P1: A TRUE COPY OF THE ORDER PASSED BY THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE IN C.C.NO.55/2008 DATED 29/11/2014.

EXT.P2: A TRUE COPY OF THE JUDGMENT IN APPEAL NO.34/2015 OF THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM DATED 29.2.2016.

EXT.P3: A TRUE COPY OF THE ORDER PASSED BY THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI IN I.A.NO.7266/2016 IN REVISION PETITION NO.2265/2016 DATED 1/12/2016.

EXT.P4: A TRUE COPY DEMAND DRAFT BEARING NO.47331 DRAWN ON ICICI BANK, THIRUVANANTHAPURAM FOR A SUM OF RS.60,000/-DATED 29/12/2016.

EXT.P5: A TRUE COPY DEMAND DRAFT BEARING NO.47335 DRAWN ON ICICI BANK, THIRUVANANTHAPURAM FOR A SUM OF RS.12,500/-DATED 30/12/2016.

EXT.P6: A TRUE COPY OF THE ORDER PASSED BY THE NATIONAL DISPUTES REDRESSAL COMMISSION, NEW DELHI IN REVISION PETITION NO.2265/2016 DATED 23/5/2017. EXT.P7: A TRUE COPY OF THE ORDER PASSED BY THE HONOURABLE SUPREME COURT OF INDIA IN SLP NO.28053/2017 DATED 30/10/2017. EXT.P8: A TRUE COPY OF THE DEMAND DRAFT DRAWN IN THE NAME OF THE SECOND RESPONDENT BEARING NO.513456 FOR A SUM OF RS.18,000/- DATED 25/11/2017.

W.P.(C). No. 26316 of 2018

EXT.P9: A TRUE COPY OF THE DEMAND DRAFT DRAWN IN THE NAME OF THE SECOND RESPONDENT BEARING NO.513457 FOR A SUM OF RS.18,000/-DATED 25/11/2017.

EXT.P10: A TRUE COPY OF THE DEMAND DRAFT DRAWN IN THE NAME OF THE SECOND RESPONDENT BEARING NO.513458 FOR A SUM OF RS.11,5000/-DATED 25/11/2017.

EXT.P11: A TRUE COPY OF THE DEMAND DRAFT DRAWN IN THE NAME OF THE SECOND RESPONDENT BEARING NO.513459 FOR A SUM OF RS.5,000/-DATED 25/11/2017.

EXT.P12: A TRUE COPY OF THE PETITION FILED ON BEHALF OF THE PETITIONER AND THE THIRD RESPONDENT BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE IN E.A.NO.14/2015 IN C.C.NO.52/2008.

EXT.P13: A TRUE COPY OF THE MEMO SUBMITTED ON BEHALF OF THE PETITIONER DATED 27/11/2017.

EXT.P14: A TRUE COPY OF I.A.NO.464/2018 IN APPEAL NO.34/2015 ON THE FILES OF THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM FILED BY THE SECOND RESPONDENT DATED 20/2/2018.

EXT.P15: A TRUE COPY OF THE ORDER PASSED BY THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM IN I.A.NO.464/2018 IN APPEAL NO.34/2015, DATED 29/5/2018.