IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 WP(C).No. 2798 of 2009(G) ------------------------- PETITIONER(S): --------------- M/S.JAYALAKSHMY BUILDERS PVT.LTD., REPRESENTED BY MR.PRASAD CHAKRAPANI, (CHAIRMAN & MANAGING DIRECTOR), I.C.2-1145, POTTAKUZHY, PATTOM, THIRUVANANTHAPURAM - 695 004. BY ADV. MR.N.NANDAKUMARA MENON, SENIOR ADVOCATE MS.SUSHYA RAJAN MR.P.K.MANOJKUMAR RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM. 3. SHEELA THOMAS, W/O.K.THOMAS PAULOSE, 88, JAWAHAR NAGAR, THIRUVANANTHAPURAM 41. 4. NEENA THOMAS, W/O.DR.GEORGE K., 88, JAWAHAR NAGAR, THIRUVANANTHAPURAM 41. 5. K.THOMAS PAULOSE, 88, JAWAHAR NAGAR, THIRUVANANTHAPURAM - 41 6. NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI. ADV. MR.M.R.RAJESH FOR R3-5 MR.P.N.SANTHOSH, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.2798 of 2009 --------------------------------- Dated, this the 12th day of February, 2009 J U D G M E N T The petitioner had entered into an agreement with respondents 3 to 5 for construction of a residential apartment. According to the petitioner, respondents failed to discharge their obligation, and therefore, the construction was not completed. In any case, respondents 3 to 5 approached the State Consumer Disputes Redressal Commission and filed O.P No.71/1999 for return of the amount paid to the petitioner. That was decided against the petitioner. Appeal filed to the National Commission was dismissed with costs. SLP filed was also rejected by the Apex Court. 2. Once the order has thus become final, the respondents filed E.P.No.11/2001 for getting the order executed. In that execution petition, Ext.P1 order of arrest and detention of the Managing Director of the Company was passed by the State Commission on 10/06/2003. The respondents now point out that soon after the order was passed, the petitioner approached this Court and filed WP(C) No.18994/2003 challenging the said order. WP(C) No.2798/2009 -2 That writ petition was disposed of by judgment dated 03/12/2003, staying Ext.P1 for six weeks on condition of the petitioner paying an amount of Rs.5 lakhs. On that condition, the petitioner was relegated to pursue statutory remedies that are available. The respondents complain that not only that this was not complied with but also that material fact has not been disclosed in the writ petition, which is factually correct. 3. Pleadings in the writ petition show that against Ext.P1, the petitioner filed F.A.No.3/2004 before the National Commission. That appeal was dismissed for default on 16/09/2008. A restoration application was filed, in that restoration application, Ext.P2 order was passed recording the readiness of the petitioner to make payment in settlement of the amount due within four weeks. That also was not complied with, and finally, the National Commission dismissed F.A.No. 3/2004 on 07/01/2009. The State Commission thereafter issued Ext.P3 order on 13/01/2009 to issue warrant of arrest against the Chairman and Managing Director of the petitioner company and the Sub Inspector of Police, Medical College Police Station, Thiruvananthapuram was directed to execute the warrant of arrest, and produce the arrested person before the WP(C) No.2798/2009 -3 Commission on or before 22/01/2009. 4. Thereupon, the petitioner again filed Ext.P4 appeal and Ext.P5 stay petition before the National Commission. Contending that the appeal and stay petition were listed to 11/02/2009, and that in the meanwhile there was a possibility of the Chairman and Managing Director being arrested in pursuance to Ext.P3, this writ petition was filed on 27/01/2009. 5. Taking into account the pendency of the appeal and stay petition before the National Commission, and also that the matters were posted on 11/02/2009, this Court granted stay of his arrest till 11/02/2009. Thereafter the cases got posted to today. When the matter was taken up today for hearing, the learned senior counsel for the petitioner informed that the appeal is adjourned to 05/03/2009 without any order in the stay petition. 6. From this it is obvious that till date the petitioner has not succeeded in obtaining any order from the National Commission staying implementation of Ext.P3. Since statutory remedy of appeal against Ext.P3 has been provided and has been availed of, this Court will not be justified in examining the merits of the contentions raised by either of the parties, as it is essentially for the WP(C) No.2798/2009 -4 appellate authority to deal with those contentions and decide on the matter. Further any such pronouncement will prejudicially affect either of the parties. 7. As already noticed, this Court entertained this writ petition only taking into account the submission made by the learned counsel for the petitioner that the appeal and stay petition are posted to 11/02/2009 and the petitioner apprehended arrest in the meanwhile. Now that they have not succeeded in obtaining any stay orders on 11/02/2009, this Court should keep its hands free, leaving all the controversies to be decided in the appeal. 8. When the matter was taken up today for hearing, the learned counsel for the petitioner raised an argument, which does not find a place in the pleadings, that the State Commission does not have the power to issue warrant of arrest. However, having regard to the provisions contained in Section 27 of the Act, I am not inclined to accept the contention. This is all the more so for the reason that the appeal and SLP filed against Ext.P1 order in which arrest and detention was ordered has been dismissed by the National Commission and the order was confirmed by the Apex Court. WP(C) No.2798/2009 -5 9. In any case, in view of the past history of the case as narrated herein above, this Court will not be justified in going to the rescue of the petitioner, who has successfully avoided payment for such a long time. The writ petition fails and is, accordingly, dismissed, (ANTONY DOMINIC, JUDGE) jg