Kerala High Court
M/S. Shriram Transport Finance ... vs Pradeep on 20 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA,
1943
WP(C) NO. 17828 OF 2021
PETITIONER:
M/S. SHRIRAM TRANSPORT FINANCE COMPANY LIMITED,
2ND FLOOR, ROYAL PLAZA, OPPOSITE NSS KPT HIGH
SCHOOL, T.B. ROAD, OTTAPALAM, PALAKKAD 679 101
REPRESENTED BY ITS BRANCH MANAGER AND AUTHORIZED
SIGNATORY DINESH K.V.
BY ADVS.
C.HARIKUMAR
SANDRA SUNNY
ARUN KUMAR M.A
RESPONDENTS:
1 PRADEEP,
AGED 39 YEARS
S/O. LATE RAMACHANDRAN, THEJAS, KANIYARKODE,
THIRUVIWAMALA, TALAPPILY, THRISSUR 680 594.
2 CONSUMER DISPUTES REDRESSAL FORUM,
AYYANTHOLTE, THRISSUR 680 003.
SMT.B.VINITHA GP SR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 20.10.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.17828 of 2021 2
C.R.
P.B.SURESH KUMAR, J.
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W.P.(C) No.17828 of 2021
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Dated this the 20th day of October, 2021.
JUDGMENT
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 the nature of an interim
mandatory injunction and even if it has power to pass such an
interim order, the same cannot be passed without notice to the
parties.
5. Lack of jurisdiction on the part of
statutory/quasi-judicial authorities is certainly one of the well-
recognised exceptions to the self-imposed restraint that the
High Courts shall not exercise the power of judicial review
where the party invoking the review jurisdiction of the Court
has an alternative and efficacious remedy. The question arises
for consideration therefore is as to whether Ext.P5 can be said
to be an order vitiated by lack of jurisdiction.
6. The Courts in India and abroad have all
throughout maintained a distinction between cases where a
statutory/quasi-judicial authority exercised a jurisdiction not
vested in it in law and cases where there was a wrongful
exercise of the available jurisdiction. Though the distinction
between jurisdictional error and error of law within jurisdiction
has been reduced almost to a vanishing point by the decision
of the House of Lords in Anisminic Ltd. v. Foreign
Compensation Commission, (1969) 2 AC 147 and by the
various decisions of the Apex Court that followed the view
taken in Anisminic Ltd., in the context of the power of the
superior courts to interfere with the decisions of the
subordinate courts/tribunals or administrative authorities, it has
been clarified by the Apex Court in Embassy Property
Developments (P) Ltd. v. State of Karnataka, (2020) 13
SCC 308 that the said decisions cannot be applied while
considering the question of exercise of power under Article 226
of the Constitution, despite the availability of a statutory
alternative remedy. In other words, while considering the
question of exercise of power under Article 226 of the
Constitution, the traditional distinction between "jurisdictional
error" and "error of law within the jurisdiction" shall be kept in
mind and followed. Jurisdiction of a statutory/quasi-judicial
authority means its entitlement to enter upon an enquiry into a
particular matter. If a statutory or quasi-judicial authority is not
entitled to enter upon an enquiry into a particular matter, and
despite that if it does so, its actions would be vitiated by lack of
jurisdiction. Lack of jurisdiction arises when a statutory/quasi-
judicial authority is either expressly or impliedly prohibited
from entering upon an enquiry into a particular matter. On the
other hand, if a statutory/quasi-judicial authority is entitled to
enter upon an enquiry into a particular matter, then any
subsequent error can only be regarded as an error within the
jurisdiction [See M.L. Sethi v. R.P. Kapur, (1972) 2 SCC 427].
The question whether there is lack of jurisdiction or merely
error within jurisdiction, needs to be resolved by construing the
facts of the case on hand.
7. Reverting to the facts, the fact that the
Commission has jurisdiction to pass interim orders on
complaints instituted before it, is not disputed by the petitioner.
The relevant part of Section 38 of the Act dealing with the
jurisdiction of the Commission to pass interim orders reads
thus:
38. Procedure on admission of complaint.--(1) The District
Commission shall, on admission of a complaint, or in respect of
cases referred for mediation on failure of settlement by
mediation, proceed with such complaint.
xxxxx xxxxx
(8) 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.
As explicit from the extracted provision, the jurisdiction
aforesaid is so wide that the Commission can pass any interim
order, if it appears to it necessary, as is just and proper in the
facts and circumstances of the case. The case of the petitioner
is only that the Commission does not have jurisdiction to pass
an interim order in the nature of Ext.P5. The reasons put forth
by the petitioner in support of the said stand are that the same
is against the spirit of Section 51(5) of the Motor Vehicles Act,
1988; that the relief granted by the Commission in terms of the
impugned order could be granted only by the Arbitrator; that
an order in the nature of an interim mandatory injunction does
not fall within the scope of sub-section (8) of Section 38 of the
Act and that if at all such an order falls within the scope of the
said provision, the Commission ought to have issued notice to
the petitioner before passing such an order. In other words, the
essence of the case of the petitioner is that the impugned order
is one passed otherwise than in accordance with the
contemplation of the statute. In so far as the petitioner does
not challenge the jurisdiction of the Commission to enter upon
an enquiry to pass an interim order as is just and proper in the
facts and circumstances of the case, none of those reasons
would make out a case of lack of jurisdiction on the part of the
Commission. Those reasons, on the other hand, could be
considered only as errors committed by the Commission in the
order passed pursuant to the enquiry to pass the interim order.
As such, the same would only amount to errors within the
jurisdiction. The position would have been certainly different, if
the Commission has no power to pass an interim order at all.
The writ petition, in the circumstances, is without
merits and the same is, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
YKB
APPENDIX OF WP(C) 17828/2021
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE LOAN CUM
HYPOTHECATION AGREEMENT DATED 23.05.2018.
Exhibit P2 THE TRUE COPY OF THE NOTICE CALLING FOR
ARBITRATION ISSUED ON BEHALF OF THE
PETITIONER DATED 12.12.2019.
Exhibit P3 THE TRUE COPY OF THE PETITION IN C.C. NO.
189 OF 2020 FILED BY THE IST RESPONDENT
BEFORE THE HONBLE CONSUMER DISPUTES
REDRESSAL FORUM, THRISSUR DATED
24.02.2020.
Exhibit P4 THE TRUE COPY OF THE NOTICE ISSUED BY THE
HONBLE CONSUMER DISPUTE REDRESSAL FORUM,
THRISSUR IN C.C. NO. 189 OF 2020 DATED
31.03.2020.
Exhibit P5 THE TRUE COPY OF THE ORDER IN I.A. NO. 147
OF 2020 IN C.C. NO. 189 OF 2020 PASSED BY
THE HONBLE CONSUMER DISPUTES REDRESSAL
FORUM, THRISSUR DATED 27.02.2020.
Exhibit P6 THE TRUE COPY OF THE PETITION IN I.A. NO.
72 OF 2021 IN C.C. NO. 189 OF 2020 FILED
BY THE IST RESPONDENT BEFORE THE HON'BLE
CONSUMER DISPUTES REDRESSAL FORUM,
THRISSUR DATED 05.02.2021.
Exhibit P7 THE TRUE COPY OF THE NOTICE ISSUED BY THE
HONBLE CONSUMER DISPUTE REDRESSAL FORUM,
THRISSUR IN C.C. NO. 189 OF 2020 DATED
27.02.2021.
Exhibit P8 THE TRUE COPY OF THE STATEMENT OF ACCOUNTS
EVIDENCING AMOUNT DUE TO THE PETITIONER IN
RESPECT OF THE VEHICLE.
