Alappat Home Furniture & Decors Fast Building, Diwan Narayanan Menon Road, Near Indoor Stadium v. V. A. Ramesh Chandran "Rohini", Cheriyanaath House, Near Shanti Nagar
2017-04-07
DAMA SESHADRI NAIDU
body2017
DigiLaw.ai
JUDGMENT : Dama Seshadri Naidu, J. 1. Alappat Home Furniture & Decors, the petitioner, as an opposite party, suffered a judgment in the Consumer District Forum, Kozhikode. Both the parties to the proceedings-the consumers, on one hand, and the opposite party, on the other-filed appeals before the Kerala State Consumer Commission. The petitioner did not succeed. On the other hand, the respondents 1 and 2 did; as a result, the compensation was enhanced from One lakh rupees to Four lakh rupees. As the petitioner did not comply with the appellate judgment, the first and second respondents initiated execution proceedings in E.A. No.39 of 2012. 2. In the execution petition, the Consumer Disputes Redressal Forum, Kozhikode, issued Ext.P3 notice, said to be under Section 27 of the Consumer Protection Act ("the Act"). The petitioner assails this notice treating it to be an arrest warrant issued without any summary adjudication under Section 27(3) of the Act. Though the respondents 1 and 2 filed the counter affidavit, none appeared on their behalf, today. 3. Going by the submissions made by the learned counsel for the petitioner, I gather that the petitioner is a sole proprietory concern-a non-juristic person. I do not see how a non-juristic person could sue or be sued against. It is the proprietor who ought to have been made a party-a defect curable at any stage, though. 4. Especially in execution proceedings involving arrest as well, it is only a corporeal entity, a human being, that could be made a party. True, when the execution stops with a penalty, even an artificial person-that is, a legal entity-could be a party to the proceedings. 5. Section 27 deals with penalties. Where a trader or a person against whom a complaint is made fails and omits to comply with any order made by an adjudicatory authority under the Act, such trader or person, according to Section 27 of the Act, shall be punishable with imprisonment, or with fine, or with both. The term of imprisonment shall not be less than one month; it may extend to three years. The fine shall not be less than Rs.2000/- rupees; it may extend to Rs.10,000/- rupees. The execution, I reckon, involves both incarceration and fine. True, sub-section (3) of Section 27 further provides that all offences under this Act may be tried summarily. 6.
The term of imprisonment shall not be less than one month; it may extend to three years. The fine shall not be less than Rs.2000/- rupees; it may extend to Rs.10,000/- rupees. The execution, I reckon, involves both incarceration and fine. True, sub-section (3) of Section 27 further provides that all offences under this Act may be tried summarily. 6. The petitioner's grievance, as ventilated in the writ petition, is that without recourse to Section 27(3) of the Act, the District Forum has issued Ext.P3 proceedings. Ext.P3 perused, I realise that the District Forum has only directed the petitioner to appear before the Forum "in person" and show cause why the petitioner shall not be ordered to be kept in jail as provided in section 27 of the Consumer Protection Act, for not complying with the Forum's order. 7. First, Ext.P3 is only a show cause title. Second, it is inconceivable how an artificial person, a firm-and a fictitious one, at that-could be arrested, much less imprisoned. From the beginning, the first and second respondents, I am afraid, adopted a flawed process. Instead of showing Alappat Home Furniture and Decors as the opposite party, it ought to have shown its proprietor as the opposite party. We may condone this lapse by reading the cause title on the converse: The Proprietor, Alappat Home Furniture & Decors. We may, then, conclude that the execution petition is against the proprietor rather than the proprietary concern-a fictitious entity, if it were. Otherwise, the Ext.P3 requires the proprietary concern-a non-corporeal entity-to show cause why it should not be arrested. Its getting arrested is an impossibility. 8. Reverting to the facts, I may observe that the Ext.P3 is only a show-cause notice. And against it, no writ petition should lie unless the authority issuing the notice lacks the power or the decision to be taken is a fait accompli. Here, the notice was issued by a competent judicial forum. So, I refuse to entertain this writ petition. I dismiss it. That said, it is always open for the petitioner to approach the District Forum in compliance with Ext.P3 show cause notice and raise all its defences legally permissible. No order on costs.