State Consumer Disputes Redressal Commission
Kiran Jyoti Prabhu Konkar & Another vs Savita Subhash Prabhudesai & Another on 29 March, 2023
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI-GOA
In the matter of First Appeal 43 of 2019 in Consumer
Complaint 87 of 2017.
Before: Dr. Nagesh S. Colvalkar, Member
Adv. Ms. Rachna Anna Maria Gonsalves, Member
Mr. Kiran Jyoti Prabhu Konkar,
Son of Mr. Jyoti Prabhu Konkar,
Aged about 42 years,
& his wife. ....Appellant-1
Mrs. Rakshali Kiran Prabhu Konkar,
D/o Mr. Pranurang Kamat Tarcar,
Aged about 36 years,
Both R/o. Flat no. 404, 4th floor,
Marigold Apartments, C.D.
Flower Valley, Borda,
Margao, Salcete-Goa. ....Appellant-2
V.
Mrs. Savita Subhash Prabhudesai,
Wife of Mr. Subhash Prabhudessai,
Aged about 67 years,
Married. ......Respondent-1
Mrs. Jaanvi Sandeep Prabhudessai,
Wife of Mr. Sandeep Prabhudessai,
Aged about 37 years,
Married, both Indian Nationals,
Residents of flat no. A-501,
5th floor, A wing,
Konkar nest, Agali, Fatorda,
Margao Salcete, Goa. ......Respondent-2
Adv. Shri. A. Kakodkar present for Appellant.
Adv. Ms. G. Ingle present for Respondent.
DATE: 29/03/2023
1
JUDGMENT
[per Adv. Ms. Rachna Anna Maria Gonsalves, Member]
1. This Judgment shall decide Appeal arising out of Ex-
parte Order dated 09/01/2018 passed by the Hon'ble District Commission, South-Goa, Margao in Complaint No. 87/2017.
2. The Appellant herein before us was Opposite Party and the Respondent was the Complainant before the District Commission, South. We will examine whether the Order of District Commission was appropriate or otherwise in passing the said Order.
3. The brief facts are mentioning herein as under:
i. That the Appellant submitted that notices sent by the District Commission, South, returned as "Intimated and Unclaimed" which was considered to be a good service and hence an order was passed to proceed Ex-parte against Appellant/ Opposite Party.
ii. The Appellant further submitted that the Impugned Order was illegal arbitrary perverse and bad in law based on misreading of material on record.
iii. It is submitted by Appellant that Impugned Order is against the weight of evidence on record and not in accordance with law and based on wrong principles.
4. The Notice/Summons in respect of Complaint filed against the Appellants was addressed at H. No. 401, Ward No. 1, Fatorda, Margao, Salcete Goa which is not the actual address and the place of residence of the 2 Appellants and that the District Commission, South erred in not considering that the aforesaid address mentioned in the cause Title of the original Complaint is that of the parents/parents-in-law of the Appellants.
5. It is further submitted by the Appellants that the District Commission erred by overlooking the fact that the Appellants reside and have their residential address at flat No. 404, 4th floor, Bldg B, Salcete Goa and overlooked the Telephone bill.
6. That the Appellants submitted that the Impugned Order is contrary to and dehors to the provisions of CPA 1986 and the rules made thereunder:
7. That the Appellants submitted that the Appellant had no knowledge whether the said notices were in fact served on them as the same stood served upon the address belonging to Appellant/there Parent/Parents- in-law and the same does not amount to service of notice to the Appellants as they do not reside at the said Business.
8. That the Appellant submit that the circumstances, in case the District Commission, South proceeds with the said Complaint ex-parte against the Appellants, then apart from grave and irreparable loss that will be caused to Appellant which cannot be compensated in terms of money, and the present appeal will become in- fractious, thus depriving justice to the Appellants and that the Appellant and that the Appellant have a good prima facie case, balance of convenience is in their favour and that no prejudice will be caused to the Respondents.
39. That the Appellant filed an Application for setting aside ex-parte Order dated 12/02/2018 which was dismissed on 19/03/2018 on the grounds that the District Commission has no powers to Review/Recall its own Orders which was not the knowledge of the Appellant and the Appellant preferred an appeal against the 2nd Order dated 19/03/2018 dismissing the Application for Setting aside ex-parte Impugned Order, which was admitted before the State Commission at Panaji and on hearing the matter on 06/06/2018 it was pointed out by the State Commission that it had no powers to Review/Recall the said 2nd Order 19/03/2018 and directed the Appellant to challenge that 1st Order i.e. the Impugned Order.
10. That the Appellant prayed that the Impugned Order dated 09/01/2018 passed by District Commission, South in CC/87/2017 thereby proceeding ex-parte be quashed and set aside and that the Written Statement/Version of the Appellant may be directed to be taken on record of the Complaint and that pending the hearing and disposal of the appeal, the CC/87/2017 be stayed.
11. Per Contra, that the Respondent submitted that the pleadings of the Appellant are frivolous, misrepresentative, false and without any substance and that the Respondent filed Complaint against the Appellant before the District Commission and that the District Commission issued notices to the Appellants at the address provided by the Appellant themselves in the public document i.e. agreement for construction cum sale dated 28/07/2014, Sale Deed dated 4 21/11/2017 and sale deed dated 28/03/2018, a copy of the afore referred Sale Deeds which are placed on record by the Respondents in order to substantiate that the Appellant were served at the right address.
12. That the Respondent submitted that the Appellant themselves have filed Affidavit dated 23/06/2014 before a public authority and mentioned the Address which is the same as Respondents have provided in the cause title in the Complaint.
13. That on 20/12/2017 the District Commission issued notice to the Appellants after admitting, the matter post hearing arguments of the complaint and that on 09/01/2018 the notices were returned with endorsement intimated, unclaimed and thus District Commission was pleased to mark the Appellants ex- parte and that despite being intimated the Appellants failed to claim the notice and submits that the Appellants intentionally did not claim the said Notice and the endorsement would have been "LEFT/NOT RESIDING/DOOR LOCKED" if the Appellant was not residing at the address on which the notices were issued but such is not the case in the matter before us.
14. That Respondent submitted that it is pertinent to mention that the Appellant himself has admitted to have received a copy of the Complaint on 15/01/2018 from District Commission and therefore the Appellant was duty bound to check the file and enquire about the matter as to what had transpired till 15/01/2018 is nothing short of negligence on Appellants part.
515. The Respondents submitted that the Appellant was aware about the hearing, as the Appellant voluntarily appeared before the District Commission on 31/01/2018 without any further steps being taken by the Complainant and that the Appellant has not produced any document i.e. Affidavit from his parents to substantiate his claim that he does not reside at the address mentioned in the Cause Title of the Complaint and the intention of the Appellants is to intentionally evade service and now seek to avail benefit on the pretext that the notices were never served upon him and that the Appellant has failed to prove that he is not residing at the address provided in the Cause Title of the Complaint. On the other hand telephone bill produced by Appellant cannot be considered as sufficient document to prove that Appellant was residing at a place other the one mentioned in Cause Title of the Complaint.
16. That the Respondent submitted that the flight tickets produced by the Appellant, indicated Appellant-2 was not travelling at the time when notices were sent at the address mentioned in the Deed of Sale. Additionally it has been admitted by the Appellant that the address mentioned by him in the Cause Title of the Complaint is the address mentioned by him in the Deed of Sale to which he was a signatory and he further admitted that the Aadhar Card of the Appellant bears the address as provided in the Cause Title of the Complainant.
17. The Order passed by the District Commission dated 19/03/2018, noted that on 09/01/2018 an endorsement made on matter sent by the District Commission that the same have returned as "Intimated and Unclaimed" which was considered to be good 6 service and hence in the Roznama, on order was passed to proceed ex-parte against the Appellants/Opposite Party and that the next date was fixed for hearing on 31/01/2018.
18. Paragraph 2 of the Order dated 19/03/2018 on application dated 12/02/2018, the Appellant addressed the fact that on 12/02/2018 the Appellant Opposite Party moved an application praying for setting aside of the Ex-parte order stating that the address shown in the cause title are those of the parents/parents-in-law of the Appellant whereas the Appellant/Opposite Party. Have their residence at the address mentioned in Paragraph 2 of the said application and that the Appellant/Opposite Party had sought for extension of time, setting aside ex-parte order and sought leave to file Written Submission on 31/01/2018 and thereafter filed the Written Submission within 45 days from the date of service but instead the Appellant preferred not to act within 30 days from the date of service and in doing so a positive right accrued in favour of the present Respondent.
19. That the conduct of Appellant has not only indicated negligence on his part but also doing so does not deserve equity.
20. That the Aadhar card of the Appellant bears the address as provide in the Cause Title of the Complaint and that alleges the Appellant has now made up a story that the address mentioned in Cause Title of the Complaint belongs to that of their parent/parents-in- law but in the Deed of Sale also address is not provided as care of in the name of parents/parents-in-law.
721. That the Respondent submitted that notice of the Court mentions that if the party fails to appear personally or through pleader/through authorized agent on the date and time as mentioned in the notice, then the Court shall proceed ex-parte and that the Respondent points out that no error is committed by the District Commission in proceeding ex-parte against the Appellants as the Appellant was intimated about the consequences, if he failed to appeal on the date and time as mentioned in the notice of the Court.
22. It is further submitted by Respondent that despite good service on the Appellant, the Appellant failed to file application for extension of time within 30 days from the date of service of notice and the District Commission and thus Court in the present appeal cannot allow the Appellant to file Written Submission as the right is accrued in favour of the Respondents on account of negligence/inaction of the Appellants.
23. Also the Roznama of the District Commission indicates that the notices were returned unserved on 08/01/2018 the application seeking leave to file Written Statement and depend, which could be filed for the first time on 13/02/2018 i.e. beyond 30 days from the date of service and that the Appellant could have filed the application residence in the addressed at H. No. 401, Ward No. 1, Fatorda, Margao, Salcete Goa.
24. That the Respondent further submitted that entire case of Appellant is based on false and misrepresentative pleadings and thus the Appellants do no warranty any equity and leniency as they have approached the Court with unclean hands.
825. After going through the evidence placed on record and arguments heard by Counsel for both parties we observe that:
a) The Ld. District Commission, South, erred in not granting an opportunity to the Appellants for a personal hearing and in doing so infringed on the rules of Natural Justice to be granted to the Appellants.
b) The Notice on Opposite Parties returned with endorsement 'Intimated Unclaimed'. The District Commission, South observed that is a good service and the matter to be proceeded Ex-parte against the Opposite Party which is not unfair but unjust.
c) We observe that the notices may be returned 'Intimated Unclaimed' but it doesn't mean that, Opposite Party not appear for proceedings, and ought to have been granted 2-3 opportunities and without giving an opportunity, it is unbecoming of the District Commission, South, to have acted in a manner that is totally in paradox to the beneficial legislation i.e. Consumer Protection Act.
26. Therefore in view of the aforesaid observations and reasons we pass the following Judgement.
ORDER
1. The Appeal is allowed.
2. The Impugned Order passed by the District Commission, South, dated 09/01/2018 is set aside.
3. No Order as to cost.
94. Records and Proceedings in Complaint No. 87/2017 to be sent back to District Commission, South within 15 days of pronouncement of this Judgement, for further proceedings.
5. Parties to appear before District Commission, South on 24/04/2023 at 10.30 am.
6. Pronounced in open court.
7. Judgement Pronounced on 29/03/2023, ready on 04/04/2023.
[Dr. Nagesh S. Colvalkar] Member [Adv. Ms. Rachna Anna Maria Gonsalves] Member VS 10