State Consumer Disputes Redressal Commission
Sau. Jyoti Suresh Pappu Kalani,Ex. ... vs Shri. Rajendra Kishanlal ... on 11 March, 2010
STATE CONSUMER DISPUTE REDRESSAL COMMISSION, STATE CONSUMER DISPUTE REDRESSAL COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD. Date of filing : 07.07.2007 Date of Order : 11.03.2010 FIRST APPEAL NO. 599 OF 2007 IN COMPLAINT CASE NO. 237 OF 2004 DISTRICT CONSUMER FORUM: JALNA. Sau. Jyoti Suresh @Pappu Kalani Ex. Director Nevitad Distillery Pvt. Ltd., R/o. Plot No. 274, Kalani Mahal, Khemani, Ulhasnagar-421 002, District- Thane (M.S.) Appellant -VERSUS- 1. Shri. Rajendra kishanlal Jaiswal R/o. Badnapur, Tq. Badnapur, Dist. Jalna. 2. Nevitad Distillery Pvt. Ltd., Through Exe. Director, Sales Office- R-47, Road No.55, Wagle Estate, Thane. Address: Patalganga, Near Reliance Industries, Boriwaligaon, Tq. & Dist. Raigad. Respondents Coram : Shri.S.G.Deshmukh, Hon`ble Judicial Member. Mrs. Uma S.Bora, Hon`ble Member. Present: Adv. Shri. O. G. Kurami, for appellant. Adv. Shri. Sagar Adhav, for respondent No.1 Adv. Shri. Sanjay Shah, for respondent No.2. :: O R A L O R D E R :
:
Per Shri S.G.Deshmukh, Hon`ble Presiding Judicial Member
1. The present appeal is filed by the original opponent No.1 against the judgment and order dated 23.11.2006 in complaint case No.137/2004 passed by the District Consumer Forum, Jalna.
2. By this judgment Forum directed the appellant and respondent No.2 to pay Rs.1,24,220/- with the interest @ 6% p.a. from the date of complaint. Forum further directed the appellant and respondent No.2 to pay Rs.20,000/- towards the mental agony and Rs.500/- towards the cost.
3. Appellant also filed the application for condonation of the delay.
4. Notices were issued to the appellant as well as the respondents. Learned counsel Shri. Sagar A. Adhav, appeared for the respondent no.1. Adv. Shri. Sanjay Shah, appeared for respondent No.2. Today on the date of admission hearing none appeared for respondent No.2. We heard learned counsel Shri. O. G. Kurami, for appellant and Shri. Sagar Adhav, for respondent No.1. Learned counsel Shri. Kurami submitted that the appellant was not served with the notice sent by the Forum in original complaint. According to him appellant came to know about the matter when the notice in execution on 10.01.2007 was received by the appellant. The learned counsel submitted that the appellant could not appear in the execution petition on 25.04.2007. He further submitted that he had sent the telegram for adjournment and upon request case was adjourned to 08.06.2007. He submitted that the application was filed for setting aside the exparte order passed by the Forum in Complaint Case No. 137/2004, the application was rejected by the Forum on the very day. He further submitted that, then the appellant filed application for certified copy of the judgment and the certified copy was received on 28.06.2007 and the appeal is filed on 07.07.2007. According the learned counsel the delay caused is not intentional, and thus he requested for condoning the delay.
5. On the other hand, learned counsel Shri. Adhav submitted that, the appellant was served with the notice sent by the Forum. He brought to our notice, the acknowledgement about the service of the notice which was received in the Forum. He submitted that thereafter the Forum passed the order to proceed exparte on 25.07.2005. Learned counsel further submitted that the notice was published in Daily Lokmat, Thane for respondent No.2 who is the company. Though the notice was published in the daily Lokmat respondent No.2 did appear and thus exparte order was passed. The learned counsel further submitted that after the judgment dated 23.11.2006 the respondent/complainant himself intimated the present appellant about the judgment in question by giving letter dated 15.01.2007. He submitted that the letter has been received by the appellant on 18.01.2007. He also brought on record the Xerox copy of the acknowledgement of the same. The appeal is filed on 07.07.2007. He submitted that the delay tried to be explained can not be said to satisfactory to condone the same.
6. We perused the papers and gave our anxious thoughts to the arguments advanced by both the counsels. On perusal of papers it reveals that, the present appellant was served with the notice sent by the Forum in original complaint No. 137/2004. The order of the Forum on Exh.1 i.e. complaint mentions that, the acknowledgement regarding receipt of notice was received, even then the appellant did not appear. Thus exparte order was passed by the Forum against the appellant on 25.07.2005. It also reveals that the notice was published in the paper for respondent No.2 even then respondent No.2 did not appear and thus exparte order against respondent No.2 wass passed on 03.03.2006. It is also apparent from the papers that, the complainant had intimated about the judgment in question to the appellant by letter dated 15.01.2007 under registered post. The complainant also brought on record the acknowledgement receipt which shows that, the letter in question had been received by the present appellant on 18.01.2007. Thus, it is certain from the above that the notice of the complaint which was issued by the Forum had been received by the appellant. The acknowledgement was before Forum and in view of the acknowledgement received by the Forum exparte order was passed on 25.07.2005. We have mentioned that, the respondent No.2 who is Company was also served and exparte order was passed on 03.03.2006. It is also apparent that complainant had intimated appellant about the judgment on 15.01.2007. The judgment is delivered on 23.11.2006 whereas the appeal is filed on 07.07.2007.
It is not the case of the appellant that, the copy which is sent free of cost by Forum is not received by them. It appears that, the notice sent by the Forum was served on the appellant on the same address the copy of judgment sent might have been received by appellant. When the notice sent by the Forum was received by the appellant, the copy of the judgment can not be said to have not received by appellant. The judgment copy sent by the Forum might have been received by the appellant. We have already mentioned that the letter intimating the judgment has been received by the appellant on 18.01.2006, thus the contention of the appellant that for the first time the appellant came to know about the judgment in question in execution petition No. 10/07 on 24.04.07 can not be accepted. Even if it is assumed that the appellant came to know about the judgment on 25.04.2007 it was necessary for the appellant to approach the Forum immediately and to obtain the copy. It appears that the execution petition was adjourned on the request of present appellant on 08.06.2007. It appears that from 24.04.2007 upto 08.06.2007 appellant did not take any steps for obtaining of the copy. Even there is no explanation why the appellant could not appear before the Forum from 24.04.07 to 24.07.07. We have mentioned that the appellant had been served with the notice in the complaint. We have also mentioned that appellant nowhere mentioned in the delay condonation application that she did not receive the copy which is sent free of cost by the Forum. We have also mentioned that, the copy submitted by the appellant herself discloses that the free of cost copy was sent by the Forum on 28.11.2006. In the circumstances, the abnormal delay has been caused by the appellant in filing the appeal. The explanation tried to be given can not be said to be satisfactory. We are not inclined to condone the delay. We pass the following order.
-:: O R D E R ::-
1. Application for condoantion of the delay is dismissed.
2. Consequently, appeal stands dismissed summarily.
3. Copies of the order be furnished to the parties.
(Mrs. Uma S. Bora) (S. G. Deshmukh) Member Presiding Judicial Member Kalyankar