Kerala High Court Quashes Consumer Forum Proceedings Against Subramanian Swamy

The Kerala High Court on Wednesday allowed the petition moved by BJP Rajya Sabha MP and former Union Minister Dr Subramanian Swamy to quash the non-bailable warrant issued by the Thrissur Consumer Dispute Redressal Forum (CDRF) against him citing that he had not received any notice of these proceedings. 

The High Court has also quashed the Execution Proceedings pending as against Swamy after accepting his submission that he has neither received any notice of the proceedings nor engaged any lawyer to represent him there.

Considering the submissions from both sides, Justice P.V. Kunhikrishnan presumed that the impugned order was passed behind his back without giving an opportunity of hearing to the petitioner, the warrant issued against him was found to be unsustainable. 

"The petitioner was the former Minister of Law and Justice of the Union of India. It is a well-known fact that he is a politician and he was a Member of the Parliament also. This Court need not disbelieve the version of the petitioner that he has not received any notice from the CDRF."

Subramanian Swamy was the Chairman of Express (Malayalam) (P) Ltd., a company engaged in the field of print media. This company was wound up in 2003 after liquidation proceedings.  

Meanwhile, he came across a news article claiming that the CDRF had issued a non-bailable warrant of arrest against him for alleged non-payment to an investor of the company.

Accordingly, Swamy submitted an application under the Right to Information Act to get details regarding the proceedings in the CDRF and he received a copy of the same. 

From the records, it was revealed that the respondents herein had filed petitions before the CDRF for the return of amount they allegedly deposited in M/s. Express (Malayalam)(P) Ltd.

It appeared that Swamy was made a respondent in his capacity as a Chairman of the company and not in his personal capacity in these petitions. Further, a common order had been passed by the CDRF against Swamy.

It could be deduced from the records that a lawyer had represented Swamy and had filed a vakalath on behalf of him. 

However, defending his own case before the High Court, Swamy asserted that he had never entrusted any lawyer to appear on his behalf before the CDRF and that had not even received any notice about these proceedings.

Therefore, he filed another application under RTI seeking a copy of the said vakalath to be furnished. However, it was declared that this was not available. 

Apprehending that some malpractice had gone down in the CDRF which led to the issuance of non-bailable warrants against him, Swamy moved the High Court. 

His primary contention was that the impugned order of the CDRF was passed without hearing him, all further proceedings against him to execute this order were therefore unsustainable.

Advocates K.N. Padmakumar, Karthik Bhavadasan and Government Pleader Vidya Kuriakose appeared for the respondents and argued that the petitioner had the alternate remedy under the Consumer Protection Act. 

The Court admitted that as per Controller Of Examinations, Kannur & another v Sreya N (2021(5) KLT 560), when there is an alternative remedy under the Consumer Protection Act, a party in proceedings at the Consumer Forum has to avail the alternative remedies available as per the Act and in such situation, a writ petition is not maintainable.

However, the Judge noted that it would be improper to apply this principle in this petition since it was filed and admitted in 2012 and the proceedings of the CDRF was stayed until further orders.

"This writ petition is pending before this Court for the last ten years. At this distance of time, it is not proper to relegate the petitioner to approach the appellate forum to redress his grievance."

Further, it was observed that it is a settled position that once the writ petition is admitted, the maintainability question need not be considered subsequently. 

More importantly, the Court observed that when contention is raised about the violation of natural justice, it can invoke its discretionary power under Article 226 of the Constitution of India, even if an alternative remedy is available to the parties except in certain situations.

The Single Judge also noted that CDRF was aware of the liquidation proceedings while dealing with the petitions before it. In such circumstances, it was held that the CDRF erred in issuing proceedings against the petitioner.

As such, the writ petition was allowed, quashing the proceedings before the CDRF against the petitioner, including the warrant issued against him. 

Case Title: Dr Subramanian Swamy v. V.N. Narayanan & Ors. 

Citation: 2022 LiveLaw (Ker) 94

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