National Consumer Disputes Redressal
M/S. Sundaram Finance Ltd. vs 1. Jagan Mohan Nayak & Ors. on 12 February, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1003 OF 2012 WITH (I.A. NO.1 OF 2012, FOR STAY) (Against the order dated 5.1.2012 in Appeal No. 526/2011 of the State Commission, Orissa) M/s. Sundaram Finance Ltd. A company incorporated under Companies Act, 1973 having Regd. Office At 21, Patulous Road, Chennai and Regional Office at 607-608, 6th Floor, Ashoka Estate 24, Barakhamba Raod, New Delhi 110001 Through Shri D. Vilasrao, Authorized Representative ........ Petitioner Versus 1. Jagan Mohan Nayak S/o Late Shri Natabar Nayak Vidya Nagar, 2nd Line, Rayagada, Orissa 2. Shri A.S.V. Prasad S/o Shri Goverdhan Rao, Door No.12-12-10, Jagadambanagar Phoolbag Road, Vizayanagaram, Andhra Pradesh 3. Shri A.S.V. Srnivas S/o Shri A.S.V. Prasad Door No.12-12-10, Jagadambanagar Phoolbag Road, Vizayanagaram, Andhra Pradesh .Respondents BEFORE: HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA, MEMBER For the Petitioner : Mr. Sunil Dutt, Advocate For the Respondent no.1 : Mr. P. Vinay Kumar, Advocate For Respondent no.2 : Mr. R.K. Panigrahi, Advocate with Mr. S.K. Mohanty, Advocate For Respondent no.3 : Mr. Nemo Pronounced on : 12th February, 2013 ORDER
PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER Being aggrieved by order dated 5.1.2012, passed by Orissa State Consumer Disputes Redressal Forum, Cuttack (short, State Commission), Petitioner/O.P.no.3, has filed the present revision petition.
2. Respondent no.1/complainant, filed a complaint under section 12 of the Consumer Protection Act, 1986 (for short as Act) against petitioner as well as respondent nos.2 and 3/O.P. nos.1 and 2 alleging deficiency on their part. Before District Forum, respondents nos.2 and 3 refused to receive the notice, hence they were proceeded ex parte. Petitioner received the notice on 23.6.2010, but it also did not appear.
3. District Forum, vide order dated 28.8.2010, allowed the complaint ex-parte, against petitioner and respondent nos.2 and 3. Petitioner filed (Appeal No.552 of 2010) before the State Commission, which was allowed vide its order dated 25.10.2010 and directed the District Forum to issue notice to both parties afresh and allow the petitioner to file written version and after hearing the parties, pass order in accordance with law. Accordingly, petitioner was directed to appear before the District Forum, Rayagada on 22.11.2010.
4. Even after acceptance of its appeal, Petitioner neither appeared before the District Forum despite specific directions given to appear before the District Forum on 22.11.2010 nor did it file any reply. As such, Petitioner was proceeded ex parte.
5. District Forum vide order dated 11.8.2011, allowed the complaint. Petitioner and respondent nos.2 and 3 were ordered to refund the sum of Rs.3,00,000/- with interest @ 12 % p.a. from the date of its receipt and also to pay Rs.50,000/- as compensation.
6. Being aggrieved by order dated 11.8.2011 of the District Forum, Petitioner filed (Appeal No.526 of 2011) which was rejected at the admission stage itself by the State Commission, vide its impugned order.
7. Hence this revision petition.
8. None appeared for respondent no.3 despite service. Hence, he was proceeded ex parte.
9. We have heard learned counsel for the petitioner as well as counsel for respondent nos.1 and 2.
10. It is argued by learned counsel for the petitioner that there is no privity of contract between petitioner and respondent no.1. Moreover, complaint is barred by limitation. Thus, on these counts, present complaint is liable to be dismissed.
11. On the other hand, it has been contended by learned counsel for respondent no.1 that, petitioner had been ex-parte throughout, that is, before District Forum as well as before the State Commission. Therefore, petitioner has no defence and present revision merits dismissal.
12. The State Commission, while disposing of Appeal No.526 of 2011, in its impugned order observed;
The present respondent as complainant filed the aforesaid Consumer Complaint against the opposite parties. In the said complaint, notices were issued by the District Forum, Rayagada to the opposite parties, which were also received by them, but they failed to appear on the relevant date, for which the matter was heard ex parte by the District Forum. Thereafter, this appellant preferred First appeal bearing no.552 of 2010 before this Commisison challenging the order dated 28.8.2010 passed in CC no.117 of 2010 and at the admission stage, this Commission while setting aside the ex parte impugned judgment and order of the District Forum, Rayagada directed both the parties to appear before the said District Forum on 22.11.2010 and file their counter/written version. The appellant entered appearance through advocate but it is stated that due to ill health of the Branch Manager of the appellant, the Branch Manager could not coordinate with the learned advocate and the advocate could not file written version in time, for which the opposite parties were set ex parte on 11.8.2011.
It is the case of the appellant Sundaram Finance Lt. that non filing of written version and non-participation was not intentional or deliberate and in the circumstances, a prayer has been made for setting aside the impugned judgment and order dated 11.8.2011 passed by the District Forum, Rayagada in CC no.117 of 2010. It was argued by the learned counsel for the appellant that due to unintentional non-participation again an ex parte order has been passed against them by the District Forum. It is prayed by the learned counsel that the said ex parte order may be set aside and the matter may again be remitted back to the District Forum, Rayagada for providing another chance to the opposite party/appellant to file its written version and contest the matter before the said District Forum.
Mr.C.A. Rao, learned counsel appearing for the respondent submits that there is absolutely no illegality or irregularity or impropriety in the order, which is assailed. This Commission had provided sufficient opportunity to the appellant for appearance before the District Forum, Rayagada and had fixed a date for appearance of both parties. Though the appellant entered appearance, due to laches on the part of the appellant opposite party no written version was filed. The District Forum has rightly set him ex parte and passed the impugned judgment and order which should not be disturbed as it would cause immense hardship to the complainant/respondent, who has already suffered a lot.
After hearing learned counsel for both parties and considering the submissions made by them, looking to the plight of the complainant/ respondent and in view of the fact that this Commission had already provided chance to the appellant by setting aside the earlier ex parte order directing it to file written version and the same opportunity having not been availed due to no sufficient reason, we find no reason to admit the appeal and interfere with the impugned judgment and order passed by the District Forum, Rayagada on 11.8.2011 in CC non.117 of 2010.
Accordingly, we reject the appeal memo at the admission stage.
13. Petitioner admittedly did not file its written statement despite specific directions given by the State Commission while allowing its Appeal No.552 of 2010.
14. It has also been established from the record that, initially petitioner did not appear before the District Forum and was proceeded ex parte. Even after acceptance of the appeal of the Petitioner, it did not file the written statement inspite of various opportunities granted to it. Thus, petitioner has no defence at all on merits in this case nor there is any rebuttal to the case of respondent no.1. Hence, this plea of the petitioner that there is no privity of contract between it and respondent no.1, is of no legal consequences. Under these circumstances, there is illegality or infirmity in the impugned order.
15. The present petition is nothing but gross abuse of the process of law and has been filed just to waste time of this Commission and to deprive respondent no.1 in whose favour award was passed about two and half years ago. It is well settled that frivolous litigation clogs the wheels of justice, making it difficult for courts to provide easy and speedy justice to the genuine litigants. A strong message is required to be sent to those litigant who are in the habit of challenging the order of the fora below even if the same is based on sound reasoning. No one should be permitted to frustrate the object of the Act which provide for speedy justice, by indulging in frivolous litigation. Under these circumstances, present revision petition is liable to be dismissed with punitive cost. Accordingly, we dismiss this revision petition with punitive cost of Rs.25,000/- (Rupees Twenty Five Thousand only). Out of the cost, Rs.15,000/- be paid to respondent no.1(Jagan Mohan Nayak) by way of demand draft, remaining cost of Rs.10,000/- be deposited by way of demand draft in the name of Consumer Welfare Fund as per Rule 10A of Consumer Protection Rules, 1987, within four weeks from today.
16. In case, petitioner fails to pay/deposit the cost within prescribed period, then it shall be liable to pay interest @ 9% p.a. till its realization.
17. List on 12.4.2013 for compliance.
.....J (V.B. GUPTA) PRESIDING MEMBER ....
(REKHA GUPTA) MEMBER Sonia/