ANTONY DOMINIC, J.
The appellant filed Writ Petition No.15627 of 2009 seeking to quash Exts.P3 and P6 orders passed by the Consumer Disputes Redressal Forum, Thiruvananthapuram and the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram. By the judgment under appeal, the learned Single Judge dismissed the Writ Petition, relegating the appellant to pursue the alternative remedy available under the Consumer Protection Act.
2. We heard the counsel for the appellant and the learned counsel appearing for the first respondent.
3. Briefly stated facts of the case are that the first respondent filed Ext.P1 complaint before the second respondent which was numbered as O.P.No.48/02. His case was that in 1996, he availed a loan of `97,000/- from the appellant bank for purchasing a fishing boat and an engine. Ext.P11, dated 25.8.1996, is the certificate of registration containing the engine number and Ext.P12 is the agreement for hypothication for the loan in question. His case was that on 21.7.2001, the boat capsized in the high seas, resulting in its total loss.
4. In the complaint, he alleged that on account of the breach of contract committed by the appellant bank in renewing the policy of insurance, the policy had expired early in 2001 and that, therefore, the fourth respondent insurer did not honour the claim made by him. On this basis, he claimed compensation of `1,00,000/- from the appellant bank.
5. Appellant entered appearance and filed Ext.P10 disputing the maintainability of the complaint and contending inter alia that the first respondent is not a consumer as defined under Section 2(1)(d) of the Act. They also contended that the bank did not have the liability to renew the insurance policy and reliance was placed by them on Clause 9 of Ext.P12 agreement. After completing the trial, third respondent rendered Ext.P3 order allowing the complaint and ordering payment of compensation of of ₹10,000/-and cost of ₹500/-.
₹40,000/-, general compensation
6. Aggrieved by this order, the appellant and the first respondent filed Exts.P5 and P4 appeals before the second respondent State Commission. By Ext.P6 order rendered on 9.12.2008, the State Commission dismissed Ext.P5 appeal filed by the appellant Bank and allowed Ext.P4 appeal filed by the first respondent and directed the appellant to pay a total compensation of ₹97,000/- together with 9% interest. Ext.P7 is the execution proceedings initiated by the first respondent.
7. According to the appellant, they made further enquiries into the matter and after Ext.P6 order was passed, obtained Exts.P8, P9 and P10, by invoking the provisions of Right to Information Act. Ext.P8 is an agreement for sale dated 10.10.2005 allegedly entered into between the first respondent and one Amal Raj for the sale of the boat in question. Ext.P9, dated 1.9.2005, is a certificate of registration issued by the Assistant Director of Fisheries in relation to a boat, the engine number of which is same as the one which was hypothecated to the appellant and allegedly capzised in 2001. Ext.P10, dated 21.1.2009, is a license granted for fishing which also records the engine number which is same as the one mentioned in Ext.P11 referred to above. But however, the year of make is recorded in Ext.P11 as 2005. Relying on these documents, the appellant contends that even in 2005 the boat was very much in existence and, therefore, the allegation that the boat and engine which were hypothicated to the Bank, had capzised on 21.7.2001, based on which the complaint was filed itself was a fraud and that therefore, Exts.P3 and P6 orders, being products of fraud, were liable to be set aside. In support of his contentions counsel for the appellant placed reliance on judgment of the Supreme Court in United India Insurance Co. Ltd. Vs. Rajendra Singh and others [AIR 2000 SC 1165].
8. On the other hand, the learned counsel for the 1st respondent sought to sustain the judgment of the learned Single Judge placing reliance on the judgment of the Supreme Court in Nivedita Sharma Vs. Cellular Operators Association of India and others [(2011) 14 SCC 337] and Cicily Kallarackal Vs. Vehicle Factory [2012 (3) KHC 689 (SC)]. He contended that, since the remedy of revision provided under Section 21 of the Consumer Protection Act is available to the petitioner, the Writ Petition was not maintainable. The learned counsel also contended that Exts.P8 and P9, which are now relied on by the 1st respondent, are fabricated documents and that therefore, could not be acted upon. The counsel for the 1st respondent also contended that in the circumstances, the learned Single Judge was fully justified in relegating the appellant to pursue the alternative remedy of revision as provided under Section 21 of the Act.
9. We have considered the submissions made by both sides.
10. It is true that in the judgments relied on by the learned counsel for the 1st respondent, the Apex Court, has held that, when Writ Petitions are filed challenging the orders of the District Forums or State Commissions constituted under the Consumer Protection Act, it is improper for the High Court to exercise its jurisdiction under Article 226 of the Constitution of India and should relegate the parties to pursue the alternative statutory remedies. However, insofar as this case is concerned, as we have stated, relying on Exts.P8, P9 and P10 the contention raised by the learned counsel for the appellant is that the case set up by the 1st respondent was a fraudulent one and that therefore Exts.P3 and P4 being the result of a fraud played by the 1st respondent, not only on the appellant but also on respondents 2 and 3, are vitiated and therefore should be set aside.
11. It is trite that fraud vitiates everything including the judgments obtained. In this context, it is apposite to refer to the judgment of the Apex Court in United India Insurance Company's case (supra), where it was held that, when an order is assailed as product of fraud, the High Court ought to examine the matter and should exercise its jurisdiction. It is so held in paragraph '4' of the judgment;-
“4. For a High Court in India to say that it has no power even to consider the contention that the awards secured are the byproducts of stark fraud played on a Tribunal, the plenary power conferred on the High Court by the Constitution may become a mirage and people's faith in the efficacy of the High Court would corrode. We would have appreciated if the Tribunal or at least the High Court had considered the plea and found them unsustainable on merits, if they are meritless. But when the Courts preempted the Insurance Company by slamming the doors against them, this Court has to step in and salvage the situation.”
These principles therefore show that, ordinarily when alternative remedies are available, the High Court should not exercise its jurisdiction, but, when, as indicated by the Apex Court itself, an order is assailed as a product of fraud, the High Court should not shut its door and should examine the matter.
12. Insofar as this case is concerned, Ext.P8 prima facie shows that, on 10/10/2005, when the sale agreement was entered into, the boat with engine number which was hypothecated to the bank was in existence. The certificate of registration (Ext.P9) issued in 2005, also, prima facie, suggests the same. Therefore, if, as contended by the bank, the boat in question was in existence in 2005, conclusion is irresistible that in 2001, the boat could not have capzised as claimed by the 1st respondent. This contention is answered by the 1st respondent claiming that these documents are fabricated. Since such factual contentions are urged, and as the first respondent himself has made an application to this Court to obtain expert opinion on the documents relied on by the appellant, we feel it is appropriate that the Consumer Forum itself should deal with the contention of fraud raised by the bank. It is therefore only appropriate to remit this case back to the Consumer Disputes Redressal Forum, Thiruvananthapuram, the 2nd respondent, for re-examination of the case of fraud pleaded by the Bank.
13. In the afore-stated circumstances, while we uphold findings in the award passed against the appellant bank as confirmed by the 2nd respondent, we set aside Exts.P3 and P6 and remit the matter back to the Consumer Disputes Redressal Forum, Thiruvananthapuram for raising an additional issue of fraud and to try O.P.No.48 of 2002 filed by the 1st respondent afresh in accordance with law. Parties will be, at liberty to amend their pleadings, to produce any additional materials they want to rely on and also to adduce any further evidence that they may want to adduce on the additional issue.
14. While such re-examination of the case is ordered, we should safeguard the interests of the 1st respondent also. Therefore we direct that the bank shall deposit the entire amount due under Ext.P6 order passed by the State Commission with interest thereon as on 01/01/2015 in an interest bearing Fixed Deposit, which will be renewed periodically. The amount shall be deposited at any rate before 05/01/2015. Depending upon the finding on the additional issue and the award that is ultimately passed, the amount deposited, along with the interest accrued thereon, shall be released to the successful party.
The 2nd respondent shall dispose of O.P.No.48 of 2002 afresh in accordance with law and as expeditiously as possible. We clarify that all observations in this judgment are made only for disposal of this Appeal and the 2nd respondent shall dispose of the matter afresh untrammeled by the contents of this judgment.
The Writ Appeal is disposed of accordingly.
ANTONY DOMINIC, JUDGE ANIL K.NARENDRAN, JUDGE skj