State Consumer Disputes Redressal Commission
Vmake Visas Pvt. Ltd. vs Babu Singh & Ors. on 18 January, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.229 of 2021
Date of institution : 05.07.2021
Reserved on : 07.01.2022
Date of decision : 18.01.2022
Vmake Visas Pvt. Ltd. 301-302/304-305, 3rd Floor Sheetla House, Building
No.73-74, Nehru Place, New Delhi-110019 but now at 1st floor, 2 L, 59/A,
BP, New Industrial Town, Faridabad, Haryana-121001- Email-
[email protected]
....Appellant/Opposite Party No.1
Versus
1. Babu Singh son of Sewa Singh, resident of Q.No.304 C, Type 03,
Rail Coach Factory Township, RCF, Tehsil and District Kapurthala,
Punjab Pin:144602. Email [email protected]
2. Sukhwinder Singh aged 28 years son of Babu Singh son of Sewa
Singh, resident of Q.No.304 C, Type 03, Rail Coach Factory
Township, RCF, Tehsil and District Kapurthala, Punjab Pin:144602.
Email Id- As above.
3. Amanpreet Kaur aged 26 years daughter of Babu Singh son of
Sewa Singh, Q.No.304 C, Type 03, Rail Coach Factory Township,
RCF, Tehsil and District Kapurthala, Punjab Pin:144602. Email Id-
As above.
....Respondents No.1-3/Complainants
4. Ankit Kapoor, resident of G12 A, First Floor, Kalkaji South Delhi-
110019, Delhi, India.
5. Vinod Kumar Kapoor, resident of D-1184, 1st Floor, Sainik Colony,
Sector-49, Faridabad-121 001, Haryana, India.
6. Mamta Kapoor, resident of D-1184, 1st Gate Road, Badhkhal Road,
Sainik Colony, Sector 49, Faridabad-121001, Haryana, India.
7. Kanika Kapoor, resident of 2L-59A, NIT Faridabad, Haryana-
121001.
8. Mr. Sahil Saqib Shaikh, Case Manager, Vmake Visas, 301, 302, 3rd
Floor Sheetla House, Building number-73-74, Nehru Place, New
Delhi-110019. India Mobile number: (99997-30159, 98186-04743).
First Appeal No.229 of 2021 2
9. Kulmeet Sobti @ Shelly HR in Vmake Visas Pvt. Ltd. 301-302/304-
305, 3rd Floor, Sheetla House, Building No.73-74, Nehru Place, New
Delhi-110019, Mobile number : (84474-40210).
.....Proforma Respondents/Opposite Parties No.2-7
Appeal under Section 41 of the Consumer
Protection Act, 2019 against the order
dated 24.02.2021 passed by the District
Consumer Disputes Redressal
Commission, Kapurthala.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Mrs. Urvashi Agnihotri, Member.
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present:-
For the appellant : Sh. Satish Mishra, Advocate.
For respondents No.1-3 : Sh. T.P. Singh, Advocate
JUSTICE DAYA CHAUDHARY, PRESIDENT
The appellant-Vmake Visas Private Limited has filed the present appeal to challenge the impugned order dated 24.02.2021 passed by the District Consumer Disputes Redressal Commission, Kapurthala (in short, "the District Commission"), whereby the appellant/OP No.1 alongwith other OPs were proceeded ex-parte.
2. The present appeal has been filed with the prayer to set aside the impugned order dated 24.02.2021, by allowing the appellant to contest the case on merits.
3. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission. First Appeal No.229 of 2021 3
4. Briefly, the facts of the case as made out in the present appeal are that respondents No.1-3/complainants filed a complaint before the District Commission with the grievance that they paid Rs.8,67,000/- to the OPs for processing the Canada Visa of complainants No.1 and 2. The OPs were under obligation to complete the visa process but they did not do the needful. The complainants prayed for refund of amount. Later on, meager amount was transferred in account of the complainants without their consent. The complainants prayed for refund of whole money but of no avail. By alleging 'deficiency in service', the complainant filed the complaint before the District Commission for refund of entire amount along with interest and for directions to the OPs to pay compensation and litigation expenses.
5. Notices were issued to the OPs for 01.10.2020 for appearance. Notices sent to OPs No.1,3,4,6 and 7 received back with the report "left", notice sent to OP No.5 received back with the repot "incomplete address" and notice sent to OP No.2 not received back served or unserved. The case was adjourned to 08.02.2021 for issuance of notices and complainant was directed to file correct address of OPs No.1, 3-7 within three working days. Thereafter, the complainant filed an application on 06.01.2021 under Order 5 Rule 20 CPC for effecting the service of OPs No.1-7 through substitute service by way of publication, as the service of OPs No.1-7 could not be effected for want of correct address. The District Commission allowed the application ordering that service be effected through publication in the daily newspaper First Appeal No.229 of 2021 4 "Chardikala" and the case was adjourned to 24.02.2021. The District Commission passed the impugned order on 24.02.2021 which is re- produced as under:-
"As per office report, OPs No.1 to 7 served through publication in the newspaper and the newspaper is placed on the file. Inspite of service of OPs through publication, none has come present on behalf of all OPs though case called several times before and after lunch, so OPs are proceeded against exparte. To come up for exparte arguments on 5/4/2021."
6. Aggrieved with the impugned order, the appellant/OP No.1 has filed the present appeal, whereby the appellant/OP No.1 was proceeded exparte and the same is subject matter of challenge before this Commission. The appellant also filed an application for condonation of delay of 87 days in filing the appeal alongwith appeal, which was allowed by this Commission vide order dated 25.10.2021. The appellant has raised various grounds to challenge the said impugned order.
7. Sh. Satish Mishra, learned counsel for the appellant submits that the impugned order dated 24.02.2021 has been passed without appreciating the fact that the appellant/OP No.1 was not given any opportunity to represent its case and even to file reply, as it had no knowledge about the proceedings, which is contrary to the principles of natural justice. Learned counsel also submits that all the OPs in complaint including appellant/OP No.1 have left the office space from Delhi, being the worst hit area by Covid-19 and shifted to Faridabad due to which service could not be effected and the same was neither intentional nor First Appeal No.229 of 2021 5 willful. The office of the appellant remained closed due to pandemic of Covid-19. Learned counsel further submits that the appellant/OP No.1 came to know about the said proceedings after publication and from local sources in Punjab & Haryana. At the end learned counsel submits that the impugned order may be set aside and the appellant may be given an opportunity to contest the complaint on merits by way of filing reply and evidence.
8. Learned counsel for respondents No.1-3/complainants has opposed the submissions of the learned counsel for the appellant. Learned counsel submits that the appellant has not mentioned the date on which the appellant gained the knowledge of the publication and name of source. The appellant has been running his office from Delhi as well as Faridabad since long, as clear from letters issued by the appellant to the complainants. Learned counsel also submits that the appellant alongwith other OPs had the knowledge about the pendency of the complaint before the District Commission and they deliberately avoided the notices issued by the District Commission. The appellant and other OPs have rightly been proceeded exparte by the District Commission.
9. We have heard the learned counsel for the parties and have also gone through the impugned order, written submissions as well as other documents available on the file.
10. A very short issue for decision by this Commission is as to whether the ex parte order passed by the District Commission is contrary First Appeal No.229 of 2021 6 to the principles of natural justice and same can be set aside by this Commission to meet out the ends of justice to the party?
11. In the present case, the appellant was served by way of substituted service i.e. publication in the newspaper. It is pertinent to mention that the application praying for substituted service upon the OPs was filed on behalf of the complainants stating therein that the addresses provided in the consumer complaint in respect of OPs were the last and correct addresses and they intentionally and deliberately avoided the service of summons. There is no other alternative for effecting the service of OPs except by way of substituted service in respect of OPs. Indisputably, the summons on the OPs were not duly served for want of complete/correct address and therefore, there could not have been any presumption regarding information to them about the pendency of the suit. The application preferred by the complainants does not disclose as to what efforts were made to serve the notices upon the OPs personally. A perusal of the proceedings of the case before the District Commission further reveals that at no stage of the proceedings, it was noticed by the District Commission that the OPs were avoiding the service. Needless to say that the substituted service being presumptive in nature should not be resorted to by the District Commission unless on the basis of the material on record, it stands satisfied that the OPs were avoiding the service or for any other reason, the summons cannot be served upon them personally in ordinary way. On the facts and in the circumstances of the present case, the Court below could not have proceeded to pass an order for First Appeal No.229 of 2021 7 substituted service in casual manner solely on the basis of the complainant's desire to serve the OPs by substituted service. Whereas the complainants have the knowledge of second address of the appellant/OP No.1 at Faridabad (Haryana), as per submissions of learned counsel for respondents No.1-3/complainants. It is pertinent to mention that the complainants had not provided the Faridabad's address of the appellant before the District Commission, when they were asked to file correct addresses of OPs No.1,3,4,5,6 and 6, vide order dated 01.10.2020 and 22.12.2020. The object of service of summons is to apprise the opposite party about pendency of the case/suit and therefore it is necessary that opposite party must have knowledge about pendency of the case/suit against him. Accordingly, we are of the considered opinion that on the basis of the material on record, no conclusion could be drawn that the appellant/OP No.1 had knowledge about the date of hearing and had sufficient time to appear before the District Commission and answer the complainant's claim. Therefore, in the interest of justice, the appellant/OP No.1 deserves to be granted an opportunity to contest the case. This Commission has appellate jurisdiction over the impugned order of the District Commission, it is obvious that this Commission is fully competent to interfere with the order by re-appreciation the facts of the case. The Order 9 Rule 7 of the Code of Civil Procedure (CPC), which provides jurisdiction to the Court to set aside ex parte order by imposing costs, is reproduced as under:
First Appeal No.229 of 2021 8
"7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.-- Where the Court has adjourned the hearing of the suit, ex parte, and the defendant, at or before such hearing appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance."
12. The power of the Court to set aside ex parte order can be by imposing costs by which the Court can put the party on terms as spelled out from the expression "upon such terms as the Court directs as to costs or otherwise". It is settled with the decision of the Hon'ble Supreme Court in case "Arjun Singh v. Mohinder Kumar & Ors." AIR 1964 Supreme Court 993, that on the adjourned hearing, in-spite of the Court having proceeded ex parte, the defendant is entitled to appear and participate in the subsequent proceedings as a matter of right. An application under Rule 7 is required to be made, in case the defendant wishes the proceedings to be relegated back and to reopen the proceedings from the date, wherefrom he became ex parte, so as to convert the ex parte hearing into bi-parte. However, while exercising power of putting the defendant on terms of Rule 7, the Court cannot pass an order, which would have the effect of placing the defendant in a situation more worse than what he should have been, if he had not applied under Rule 7 but subject to reasonable cost.
13. To attract the provisions of Order 9 Rule 7 of CPC, the appellant is to show not only good cause for their failure to appear in the Court on the date fixed but also to show as to what injustice has been First Appeal No.229 of 2021 9 caused to them. Hon'ble Supreme Court in case "Sangram Singh v. Election Tribunal Kotah & Anr." AIR 1955 Supreme Court 425, while considering the provisions of Order 9 Rule 6 (1) (a) of CPC, held as under:
"When the defendant has been served and has been afforded an opportunity of appearing then, if he does not appear, the Court may proceed in his absence. But, be it noted, the Court is not directed to make an ex parte order. Of course the fact that it is proceeding ex parte will be recorded in the minutes of its proceedings but that is merely a statement of the fact and is not an order made against the defendant in the sense of an ex parte decree or other ex parte order which the Court is authorised to make. All that Rule 6(1)(a) (of Order
9) does is to remove a bar and no more. It merely authorises the Court to do that which it could not have done without this authority, namely, to proceed in the absence of one of the parties. The contrast in language between Rules 7 and 13 emphasises this."
14. Said judgment was relied upon by the Hon'ble Punjab and Haryana High Court in a case titled as "Smt. Sahib Kaur Vs. Sukhbir Singh & others" Civil Revision No.1700 of 2004, decided on 25.05.2016 (Punjab & Haryana High Court), wherein it was held that in case the ex parte order was not set aside, the petitioner ought to have at least been allowed to join the proceedings at the stage, at which they were. Subsequently, the Revision Petition filed by the petitioner was allowed and the impugned order of ex parte was set aside by allowing the petitioner to file written statement and to join the proceedings.
15. It is well settled that a party, against whom ex parte proceedings have been set in motion, can join the proceedings at any stage of the suit/case and take part in the proceedings from that First Appeal No.229 of 2021 10 stage onwards, unless he is granted leave to relegate him back to the position that obtained on the day when the party was set ex parte. It was held in case Vivek Khajuria & Anr. Versus Wachaspati Pet (u/s 104 No.23 of 2015 and MP No.1 of 2015), decided on 18.04.2016 by Jammu and Kashmir High Court that there was no period of limitation for filing written statement or for computing the extended time, which would commence from the date of initial appearance before the trial court. The ex parte proceedings could be set aside for any good and sufficient reason. It was also held that once the prayer for adjournment for filing of written statement was granted and no substantial proceedings had been taken in the absence of the petitioners from the date, they had been set ex parte, the petitioners were relegated back to the stage obtaining on the date when they were set ex parte.
16. In view of our above discussion and for imparting just and proper justice, it is necessary to provide one opportunity to the appellant by remanding the matter to the District Commission, where it was pending. The discretion was vested with the District Commission to serve the ends of justice and to achieve the object of speedy disposal of case by considering the principles of natural justice. It is necessary to prevent the miscarriage of justice and to meet the ends of justice, which is possible only by giving one more opportunity to the appellant to put up its case after setting aside the impugned order and to decide the same afresh on merits in accordance with law by hearing both the parties. Otherwise also, the natural justice demands that no one should be left unheard and First Appeal No.229 of 2021 11 adequate opportunity should be given to the parties to the case. The impugned order is liable to be set aside.
17. Accordingly, by considering the facts and circumstances of the case, the appeal is allowed and the impugned order dated 24.02.2021 passed by the District Commission is set aside qua appellant/OP No.1, subject to costs of Rs.25,000/-. Out of which Rs.12,500/- to be deposited in the Consumer Legal Aid Account of this Commission and remaining amount of Rs.12,500/- be paid to the complainants. The District Commission is directed to allow the appellant/OP No.1 to join the proceedings of the complaint. It is also directed that adequate opportunity be given to the appellant not only to plead its case by filing reply but also to lead evidence in support of its defence. The case, which is still pending before the District Commission, be decided on merits in accordance with law, by giving due opportunity of hearing to the appellant/OP No.1.
18. The parties are directed to appear before the concerned District Commission on 23.02.2022.
19. Copy of this order be sent to all the District Commissions of the State of Punjab.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (URVASHI AGNIHOTRI) MEMBER January 18, 2022.
(MM)