State Consumer Disputes Redressal Commission
1. Hdfc Credit Card Division, vs 1. Harvinder Singh on 3 June, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Revision Petition No. : 22 of 2014 Date of Institution : 21.05.2014 Date of Decision : 03/06/2014 1. HDFC Credit Card Division, PO Box 8654, Thiruvanmiyur, Cheenai. 2. HDFC Bank, Credit Card Division, SCF 50-51, 1st Floor, Phase 3B2, Mohali. Through Shri Aman Gupta, Manager Legal. Revision-Petitioners/Opposite Parties No. 2 and 3 V e r s u s 1. Harvinder Singh, son of Surinder Singh, resident of 416 Dogar Baswti, Gali No.9-L, Faridkot. .Respondent No.1/Complainant 2. Mobile Buzz, SCO 427-428, Sector 35C, Chandigarh ....Respondent No.2/Opposite Party No.1 BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by:
Sh. Puneet Tuli, Advocate for the Revision-Petitioners/Opposite Parties No.2 and 3.
Sh. Vishal Goel, Advocate for respondent No.1/complainant.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This Revision-Petition is directed against the order dated 20.01.2014, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, Opposite Parties No.2 and 3 (now the Revision-Petitioners), were proceeded against exparte.
2. The facts of the Consumer Complaint, bearing No.741 of 2013, are that the complainant purchased one Samsung Glaxy Note Blue (hereinafter to be referred as the Note only), from Opposite Party No.1 (now respondent No.2), for a sum of Rs.35,640/-. Payment of the said amount was made by the complainant, through his credit card, from his account, maintained by Opposite Parties No.2 and 3 (now the Revision-Petitioners). The said amount was to be recovered by Opposite Parties No.2 and 3, from the complainant, in six equal monthly installments of Rs.5,940/- each. It was stated that Opposite Party No.3, started debiting the said amount of installments, only after six months, i.e. June 2012, from the date of purchase of the said Note, which, on the other hand, was required to be debited, from the month of January 2012. Not only this, Opposite Parties No.2 and 3, started debiting the said amount, from the account of the complainant, by way of two installments, in the sum of Rs.5,940/- and Rs.3,960/-, and showed the same, as two transactions, against one Note, purchased by him. It was further stated that a number of complaints, orally, as well as written, were made to Opposite Parties No.2 and 3, to settle the grievance of the complainant, but they always directed him (complainant), to approach Opposite Party No.1, for the same. However, when the complainant approached Opposite Party No.1, it did not listen to him.
3. It was further stated that Opposite Parties No.2 and 3, in connivance with Opposite Party No.1, cheated the complainant, and showed the amount of Rs.52,780. 51Ps., due against him, to be paid to them, in respect of the said Note. Even a legal notice dated 24.10.2013 Annexure C-10, was also sent by Opposite Party No.2, for recovery of the said amount of Rs.52,780.51Ps., from the complainant, which was not sustainable in the eyes of law. It was further stated that the complainant approached the Opposite Parties, through every possible means, with a request to settle his grievance, but to no avail, thereby causing mental agony, physical harassment, and financial loss to him (complainant). It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, claiming various reliefs.
4. Opposite Parties No.2 and 3, were deemed to be served, but none put in appearance, on their behalf, as a result whereof, they were proceeded against exparte, vide order dated 20.01.2014, by the District Forum.
5. Feeling aggrieved, the instant Revision-Petition, was filed by the Revision-Petitioners/Opposite Parties No.2 and 3, against the order dated 20.01.2014.
6. We have heard the Counsel for the parties, and have gone through the record of the case, carefully.
7. The Counsel for the Revision-Petitioners/Opposite Parties No.2 and 3, submitted that the notice sent for the service of Opposite Parties No.2 and 3, was misplaced. He further submitted that, it was only during the pendency of some other case, in the District Forum, that the standing Counsel of Opposite Parties No.2 and 3/Revision-Petitioners came to know that they (Opposite Parties No.2 and 3) had been proceeded against exparte, by the District Forum, vide order dated 20.01.2014, as none put in appearance, on their behalf, in the Consumer Complaint, despite deemed service. He further submitted that application for setting aside the order dated 20.01.2014, was not moved, in the District Forum, as it was not vested with the power, to recall/review its own order. He further submitted that, in case, the order impugned is not set aside, and Opposite Parties No.2 and 3/Revision-Petitioners, are not allowed to submit their written version and furnish evidence, by way of affidavit(s), irreparable injury is likely to occasion, to them (Revision-Petitioners/Opposite Parties No.2 and 3), as, in that event, they would be condemned unheard. He further submitted that, thus, the order of the District Forum, in proceeding exparte against Opposite Parties No.2 and 3, being illegal and invalid, is liable to be set aside, and the case deserves to the remanded back, to it, for fresh decision, after affording them an opportunity of filing the written version, and evidence, by way of affidavit(s).
8. On the other hand, the Counsel for respondent No.1/complainant, submitted that the absence of the Revision-Petitioners/Opposite Parties No.2 and 3, on 20.01.2014, in the District Forum, despite deemed service, was intentional and deliberate. He further submitted that since Opposite Parties No.2 and 3 were deemed to be served, yet, no authorized representative, on their behalf, put in appearance, no ground, whatsoever, is made out, to set aside the order impugned, and afford an opportunity to them, to file their written version, and lead evidence. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
9. Perusal of the District Forum record, reveals that the complaint was admitted, by it, on 09.12.2013, whereafter, notice was issued to Opposite Party No.1, through ordinary post, and to Opposite Parties No.2 and 3, through registered A.D. cover, for 17.01.2014. Notices sent to the Opposite Parties, in the manner, referred to above, were not received back, served/unserved, by 17.01.2014. Since, a period of one month had not elapsed, it was ordered by the District Forum, to wait for the same, till 20.01.2014, and, accordingly, the Consumer Complaint was adjourned to the said date (20.01.2014), for the purpose. Thereafter, since, more than 30 days, had lapsed, after the notice for service of Opposite Parties No.2 and 3, was sent through registered A.D. cover, and none put in appearance, on 20.01.2014, on their (Opposite Parties No.2 and 3), behalf, they were proceeded against exparte, by the District Forum.
10. It may be stated here that, no doubt, none put in appearance, on behalf of Opposite Parties No.2 and 3, despite deemed service, yet, it is settled principle of law, that every lis should normally be decided, on merits, than by resorting to hyper-technicalities. When hyper-technicalities, and the substantial justice, are pitted against each other, then the latter shall prevail over the former. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same. In State of Punjab and another vs. Shamlal Murari & Anr., AIR 1976 SC 1177, the principle of law, laid down, was to the effect, that procedure, is, in the ultimate handmaid of justice, and not its mistress and is meant to advance its cause, and not to obstruct the same. The procedural Rule, therefore, has to be liberally construed, and care must be taken, that so strict interpretation be not placed thereon, whereby, technicality may tend to triumph over justice. It has to be kept in mind, that an overly strict construction of procedural provisions, may result in the stifling of material evidence, of a party, even if, for adequate reasons, which may be beyond its control. We must always remember that procedural law, is not an obstruction, but an aid to justice. Procedural prescriptions are the hand-maid, and not the mistress, a lubricant, not a resistant, in the administration of justice. If the breach can be corrected, without injury to the just disposal of a case, regulatory requirement should not be enthroned into a dominant desideratum. The Courts and the quasi-Judicial Tribunals, have been set up, with the sole purpose of dispensing justice, and not to wreck the end result, on technicalities.
11. No doubt, it was, on account of the negligence of Opposite Parties No.2 and 3, that despite deemed service, no representative, on their behalf, put in appearance, in the District Forum. According to Section 13 (3A) of the Act, every endeavour should be made to decide the complaint, within three months, from the date of service of the Opposite Party(s), except the one, in which the goods are required to be sent to the Laboratory for examination. In that event, the complaint is required to be decided, within a period of 5 months, from the date of service of the Opposite Party(s). In the instant case, the said period has already expired much earlier. On account of the negligence of Opposite Parties No.2 and 3, the case is being remanded back to the District Forum, for fresh decision, on merits, after giving opportunity, to them (Opposite Parties No.2 and 3/Revision-Petitioners), to submit their written version, and lead evidence, by way of affidavit(s). Due to this reason, certainly delay, in the final disposal of complaint, on merits, shall be caused. Such delay is solely attributable to Opposite Parties No. 2 and 3/Revision-Petitioners. The Revision-Petitioners/Opposite Parties No.2 and 3, are, thus, liable to be burdened with costs. Rs.3000/-, as cost, if imposed upon the Revision-Petitioners/Opposite Parties No.2 and 3, in our considered opinion, shall meet the ends of justice.
12. For the reasons recorded above, the Revision-Petition is accepted. The order impugned is set aside. The case is remanded back, to the District Forum, with a direction to afford one reasonable opportunity, to the Revision-Petitioners/Opposite Parties No.2 and 3, to submit their written version, and lead evidence, by way of affidavit(s) and, thereafter, permit the complainant/ respondent No.1, if need be, to lead evidence, in rebuttal, by way of affidavit(s), and then decide the same (case), afresh, on merits, in accordance with the provisions of the Act. The Revision-Petitioners/Opposite Parties No.2 and 3, are, however, burdened with costs of Rs.3,000/-. Payment of costs, by the Revision-Petitioners/Opposite Parties No.2 and 3, to respondent No.1/complainant, shall be a condition precedent. In other words, the costs shall be paid, before the written version and evidence, are filed, by the Revision-Petitioners/Opposite Parties No.2 and 3.
13. The parties are directed to appear, before District Forum (I) on 11.06.2014, at 10.30 A.M., for further proceedings.
14. The District Forum record, alongwith a certified copy of the order, be sent back immediately, so as to reach there, well before the date and time fixed i.e. 11.06.2014, at 10.30 A.M.
15. Certified copies of this order, be sent to the parties, free of charge.
16. The Revision-Petition file be consigned to Record Room, after completion.
Pronounced 03.06.2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Sd/-
[ PADMA PANDEY] MEMBER Rg STATE COMMISSION (Revision Petition No. 22 of 2014) Argued by: Sh. Puneet Tuli, Advocate for the applicants/Revision-Petitioners/Opposite Parties No.2 and 3.
Sh. Vishal Goel, Advocate for respondent No.1/complainant.
Dated the 3rd day of June 2014 ORDER Alongwith the Revision-Petition, an application for condonation of delay of 32 days, in filing the same, has been filed, stating therein, that the notice sent for the service of Opposite Parties No.2 and 3/Revision-Petitioners, was never received, as a result whereof, they (Opposite Parties No.2 and 3) had been proceeded against exparte, by the District Forum, vide order dated 20.01.2014, as none-put in appearance, despite deemed service. It was further stated that, this fact came to light, through the standing Counsel of Opposite Parties No.2 and 3, during the pendency of some other case, in the District Forum. It was further stated that, thereafter, on 15.04.2014, copy of the order impugned was applied for, in the District Forum. It was further stated that Opposite Parties No.2 and 3, were also informed about the same. It was further stated that certified copy of the order impugned was received on 30.04.2014. Hence, the Revision-Petition was filed. It was further stated that the delay, aforesaid, was neither deliberate, nor unintentional. It was further stated that delay was only on account of bonafide mistake, on the part of the applicants/Revision-Petitioners, and due to the circumstances, beyond their control. Accordingly, a prayer was made.
2. Arguments, on the application were heard.
3. No doubt, there is delay of 32 days, in filing the Revision-Petition. The question arises, as to whether, the delay was intentional, or on account of the reasons, beyond the control of the applicants/Revision-Petitioners. Before discussing this question, let us have a look at law, laid down by the Hon`ble Supreme Court and the Delhi High Court, regarding the condonation of delay. In Lanka Venkateswarlu (D) By Lrs. vs State Of A.P. and Ors., A.I.R. 2011 S.C. 1199: (2011) 4 S.C.C. 190, the Apex Court held as under:-
(i). The Courts generally adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act.
(ii). Rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly.
(iii). Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that.
(iv). Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law.
4. In N.Balakrishnan v. M.Krishnamurthy (1998) 7 Supreme Court Cases 123, there was a delay of 883 days, in filing application, for setting aside exparte decree, for which application for condonation of delay was filed, the Apex Court held as under:-
It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.
10. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice.
The time- limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause."
The Court further observed in paragraphs 11, 12 and 13 which run thus:-
"11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari (1969) 1 SCR 1006 and State of W.B. v. Administrator, Howrah Municipality (1972) 1 SCC 366.
13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. "
5. In Jyotsana Sharda vs Gaurav Sharda, (2010-3) 159 P.L.R. D15,Delhi High Court, while condoning 52 days delay, in filing the appeal, observed as under:-
No doubt, originally the Apex Court in Ram Lal Vs. Rewa Coalfield AIR 1962 SC 351 had held that while seeking condonation of delay under Section 5 of the Limitation Act the application must not only show as to why he did not file the appeal on the last day of limitation but he must explain each day`s delay in filing the appeal. The later judgments of the Apex Court have considerably diluted this requirement of explaining each days delay by a party. The latest trend and the ratio cases which the Apex Court has laid down in the judgments is that the Court must adopt a liberal approach rather than pedantic approach while doing so. It must see the bonafides of the person who is preferring the appeal rather than seeing the quantum of delay which has been occasioned. Reliance in this regard can be placed on Collector, Land Acquisition, Anantnag and Anr. Vs. Mst. Katiji & Ors. AIR 1987 SC 1353.
6.
The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case/Revision-Petition also. The reasons mentioned, in the application, for condonation of delay are plausible. The application for condonation of delay, is duly supported by the affidavit of Sh. Aman Gupta, Manager of Revision-Petitioner No.1. Even otherwise, the delay in filing the Revision-Petition is not so huge, as to deny the substantial justice. It is settled principle of law, that normally every lis, should be decided, on merits. When the substantial justice and the procedural wrangles are pitted against each other, then the former shall prevail over the latter. The main object of the Consumer Fora is to dispense substantial justice, and not to throttle the same, by making it a sacrificial goat, at the altar of hypertechnicalities. Some lapse, on the part of the litigant alone is not enough to turn down his plea and shut the door against him. The explanation furnished for delay in filing the Revision-Petition, does not smack of malafidies. When the explanation furnished for delay is bonafide, the Consumer Fora is required to adopt liberal approach, to condone the same, so as to ensure that the lis is decided, on merits, than by resorting to hypertechnicalities. In the instant case, in our considered opinion, there was no intentional and deliberate delay, in filing the Revision-Petition, by the Revision-Petitioners. There is, thus, sufficient cause, for condoning the delay. The application thus, deserves to be accepted.
7. For the reasons recorded above, the application for condonation of delay of 32 days, in filing the Revision-Petition, is allowed, and the delay is, accordingly, condoned.
8. Admitted.
9. It be registered.
10. Arguments, in the main Revision-Petition already heard.
11. For the reasons recorded above, the Revision-Petition has been accepted. The order impugned has been set aside. The case has been remanded back, to the District Forum, with a direction to afford one reasonable opportunity, to the Revision-Petitioners/Opposite Parties No.2 and 3, to submit their written version, and lead evidence, by way of affidavit(s) and, thereafter, permit the complainant/respondent No.1, if need be, to lead evidence, in rebuttal, by way of affidavit(s), and then decide the same (case), afresh, on merits, in accordance with the provisions of the Act. The Revision-Petitioners/Opposite Parties No.2 and 3, have, however, been burdened with costs of Rs.3,000/-. Payment of costs, by the Revision-Petitioners/Opposite Parties No.2 and 3, to respondent No.1/complainant, shall be a condition precedent.
12. The parties have been directed to appear, before District Forum (I) on 11.06.2014, at 10.30 A.M., for further proceedings.
13. The District Forum record, alongwith a certified copy of the order, has been ordered to be sent back immediately, so as to reach there, well before the date and time fixed i.e. 11.06.2014, at 10.30 A.M.
14. Certified copies of this order, be sent to the parties, free of cost.
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DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT (PADMA PANDEY) MEMBER Rg.