National Consumer Disputes Redressal
M/S. Sharp Business Systems India Ltd. vs Shri Guru Sewak Singh Hooda on 17 April, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.3912 OF 2011 with I.As for Stay and condonation of delay) (Against the order dated 1.9.2011 in Appeal No.42/2009 of the State Commission, Haryana, Panchkula)) M/s. Sharp Business Systems India Ltd. 214-221, Ansal Tower, 38, Nehru Place, New Delhi 110 019. Through its Authorised Representative Shri Arjun Kumar ....Petitioner Vs. 1. Shri Guru Sewak Singh Hooda Shop No.78/1251, Op. Akash Cinema, Ballabhgarh (Haryana) 2. M/s. Faxofine Communications India Ltd. K-1/116, Chittranjan Park, New Delhi 110 019 Through its Proprietor Shri Amar Taneja ..Respondents BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MR. VINAY KUMAR, MEMBER For the Petitioners : Mr Sunil Goyal, Advocate with Mr. Pankaj Singh, Advocate Pronounced on: 17th April, 2012 ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER . Present petition was initially filed under Section 22(2) of the Consumer Protection Act, 1986 (for short as Act). Later on, petitioner moved an application for amendment stating that due to inadvertence and oversight, provision of Section 22(2) of Act has been mentioned in place of Section 22-A in the heading. Application for amendment was allowed.
2. Respondent no.1/complainant had filed a complaint under Section 12 of the Act, against petitioner (Respondent no.1 in the District Forum ) as well as against respondent no.2, herein.
3. As per record, on 28.8.2006, Shri Amar Taneja and Shri Virender Kumar, Advocates had appeared on behalf of the petitioner and the case was adjourned for filing reply to the complaint. However, on 31.8.2007 they did not appear and were proceeded ex parte.
4. District Forum, vide its order dated 16.5.2008, allowed the complaint of respondent no.1 and directed the petitioner and respondent no.2 herein;
i) to pay Rs.72,000/- alongwith interest @ 12% per annum from the date of purchase till its realization and
ii) to pay Rs.3,300/- as litigation charges.
5. Thereafter, respondent no.1 filed an execution application under Section 27 of the Act. After receipt of the notice, petitioner filed an application before District Forum for setting aside of order dated 16.5.2008.
That application of petitioner was dismissed by the District Forum, vide order dated 26.5.2009.
6. Petitioner preferred revision against order dated 26.5.2009, before the State Commission.
7. State Commission, vide its order dated 1.9.2011, dismissed the revision petition with costs of Rs.10,000/-.
8. Order dated 1.9.2011, of the State Commission was challenged by the petitioner in Revision Petition No.3552 of 2011, which was disposed of by this Commission, vide order dated 11.11.2011, which reads as under:-
We have heard learned counsel for the petitioner. Considering the chief bone of contention of the revision petitioner that the restoration power was with the fora below. In view of the Escorts Limited and Another Vs. Harachat Bai and Ors. [III (2005) CPJ 123 (NC), we find it difficult to appreciate such contention in the light of three judges Bench Judgement of the Supreme Court in Rajeev Hitendra Pathak & Ors. Vs. Achyut Kashinath Karekar & Anr. (Civil Appeal No.8155 of 2001). In view of the legal difficulty in entertaining the present revision petition, we dispose off the revision petition with liberty granted to the revision petitioner to take appropriate proceedings as may be permissible under the law. The question of limitation is also kept open and liberty granted to explain the same with aid of section 14 of the Limitation Act.
9. Now present revision has been filed on 23.11.2011 with the following prayers;
i) to review/recall the order dated 31.8.2007, passed by the District Consumer Disputes Redressal Forum, Faridabad (for short as District Forum);
ii) to set aside the award dated 16.5.2008, passed by the District Forum;
iii) to review/recall and set aside order dated 1.9.2011, awarding the cost and
iv) to remand the matter to the District Forum with liberty to the petitioner to file the written statement and contest the complaint on merits.
10. Alongwith present revision petition, an application under Section 14 read with Section 5 of the Limitation Act, 1963, has also been filed in which it has been prayed;
the delay, if any, in filing the review petition for setting aside the order dated 31.8.2007 and award dated 16.5.2008 may be condoned/excluded
11. It is contended by learned counsel for the petitioner that there was no proper service upon the petitioner. Regarding presence of the sole proprietor and his representative as the representative of the petitioner, there is an error apparent on the face of record and the same is liable to be reviewed.
12. It is further contended that the petitioner learnt about the proceeding before the District Forum only on 8.9.2008, when it was served with summons in the execution proceedings.
Further, the time during which petitioner has been prosecuting with due diligence the appeal and revision, the same may be excluded.
13. Lastly, it is contended that complainant has no case on merits.
14. In support, counsel has relied upon decision of Rajeev Hitendra Pathak and others Vs. Achyut Kashinath Karekar and Another, 2011 IX AD (S.C.)221.
15. At the outset, it may be pointed out that second revision filed by the petitioner on the same grounds, on which earlier revision was filed before this Commission, is not maintainable. Moreover, there is inordinate delay in filing of the present revision petition.
16. The real controversy revolves around the fact as to whether petitioner was duly served with notice of the complaint filed before the District Forum or not.
17. Case of the petitioner is that he learnt about the proceeding pending before the District Forum for the first time only on 8.9.2008 when he was served with the summons in the execution petition.
18. This plea of the petitioner is absolutely false on the face of it, in view of the findings of facts given by the State Commission with regard to the service on the petitioner.
19. Observations made by the State Commission in this regard reads as under:-
Admittedly, the respondent no.1(complainant) filed complaint No.338 on 17.7.2006 under Section 12 of the Act against the petitioner as well as respondent no.2 (hereinafter referred to as the opposite parties). The opposite parties appeared on 28.8.2006 and sought time to file reply but thereafter none appeared on behalf of the opposite parties and they were proceeded ex-parte vide order dated 31.8.2007. After affording opportunity to lead evidence to the complainant, the complaint was accepted vide judgement dated 16.5.2008 on merits The complainant filed execution application under Section 27 of the Consumer Protection Act, 1986 and after receipt of the notice the petitioner moved an application before the District Consumer Forum with the prayer for setting aside the main order dated 16.5.2008 and the application of the petitioner has been dismissed vide order dated 26.5.2009. Hence revision.
The perusal of the revision petition reflect that the petitioner has taken contradictory stand. In para No.3 of the petition it is admitted by the petitioner that they had appeared before the District Forum on 28.8.2006 and sought time to file reply but thereafter did not appear and were proceeded ex-parte and the complaint was accepted vide order dated 16.5.2008. But in para No.4 of the revision the petitioner has taken the plea that they came to know about the proceedings before the District Consumer Forum for the first time when notice was received to appear in the execution proceedings on or about 8.9.2008 for the hearing which was fixed for 16.9.2008.
Thus, keeping in view the act and conduct of the petitioner the instant revision petition is nothing but an abuse of the process of law. The petitioner has not come with clean hand and therefore the instant revision petition deserves dismissal with costs in view of the observations made by the Honble National Commission in Revision Petition No.2660 of 2010, titled as Haryana Urban Development Authority vs. Baldev Narang decided on 23rd November, 2010 in the following manner.
The Apex Court in Bikaner Urban Improvement Trust Vs. Mohan Lal 2010 CTJ 121 (Supreme Court)(CP) has made significant observations which have material bearing, namely,
4. It is a matter of concern that such frivolous and unjust litigation by Governments and statutory authorities are on the increase. Statutory Authorities exist to discharge statutory functions in public interest. They, should be responsible litigants. They cannot raise frivolous and unjust objections, nor act in a callous and high handed manner. They cannot behave like some private litigants with profiteering motives.
Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers is brought to their notice, for which there is no explanation or excuse the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation to be corrected.
6. The State Government and the statutory authorities who have more litigation than the Central Government, should also make genuine efforts to eliminate unnecessary litigation. Vexatious and unnecessary litigation has been clogging the wheels of justice, for too long making it difficult for courts and Tribunals to provide easy and speedy access to justice to bonafide and needy litigants.
In our opinion, the present petition is nothing but a total abuse of process of law and the revision is totally frivolous in nature which is required to be dismissed with punitive cost of Rs.1 lac to be deposited by the Petitioner in this Commission within a period of six weeks, failing which the Registry shall not register any case of HUDA in this Commission. The revision is accordingly dismissed.
Taking into account the facts and circumstances of the case and judgement rendered by the Honble National Commission, we dismiss this revision petition with cost of Rs.10,000/- which shall be recovered by the respondent no.1 (complainant) from the petitioner by filing execution petition before the District Consumer Forum.
20. We do not find any reason to disagree with the findings of facts given by the State Commission, that petitioner had appeared before the District Forum on 28.8.2006 and has sought time to file reply but later on petitioner did not appear and was proceeded ex parte. In spite of having appeared before the District Forum on 28.8.2006, petitioner thereafter, now has introduced a new story that, it came to know about the proceeding pending before the District Forum for the first time when notice of execution application was received on 8.9.2008.
21. Thus, it is apparent from the record that petitioner is trying to hoodwink the consumer foras as it had been filing one petition or the other before different consumer foras, on one ground or the other, with the object of not to comply with the award passed by the District Forum.
22 Moreover, it is apparent from record that there is delay of 837 days in filing of the present petition, since petitioner in the present petition among others, have challenged orders dated 31.8.2007 and 16.5.2008 passed by the District Forum.
23. The mere fact that petitioner had pursued wrong remedy by filing application for review or recall is of no help to him, in view of the judgement of Honble Suprme Court in M/s.
Advance Scientific Equipment Ltd. & Anr. Vs. West Bengal Pharma & Photochemical Development Corporation Ltd. Appeal (Civil) Nos.17068-17069/2010, decided on 9th July 2010) wherein it observed inter alia, as under:-
"..We are further of the view that the petitioners' venture of filing petition under Article 227 of the Constitution was clearly an abuse of the process of the Court and the High Court ought not to have entertained the petition even for a single day because an effective alternative remedy was available to the petitioner under Section 23 of the Act and the orders passed by the State Commission did not suffer from lack of jurisdiction".
24. It is well settled that sufficient cause for non appearance in each case, is a question of fact. Delhi High Court in New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, has held;
No doubt the words sufficient cause should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafide are clearly imputable, the Court would not help such a party. After all sufficient cause is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non appearance and in examining this aspect cumulative effect of all the relevant factors is to be seen.
25. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;
It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.
26. Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that;
There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.
27. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108 , Supreme Court has been observed;
We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.
28. Recently, Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has laid down that;
It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer Foras.
29. Thus, under these circumstances, no ground is made out for condoning of the delay in filing of this revision petition as no sufficient ground has been shown to us.
30. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed ;
Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them.
These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system.
31. It is well settled that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, goes on filing meritless petitions in different foras. Time and again Courts have held that if any litigant approaches the Court of equity with unclean hands, suppress the material facts, make false averments in the petition and tries to mislead and hoodwink the judicial Forums, then his petition should be thrown away at the threshold. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree must be dealt with heavy hands.
32. Now question arises for consideration is as to what should be the quantum of costs which should be imposed upon the petitioner for dragging the respondent upto this fora when petitioner had no case at all. It is not that every order passed by the judicial fora is to be challenged by the litigants even if the same are based on sound reasonings.
33. Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors., Civil Appeal Nos.4912-4913 of 2011 decided on July 4, 2011 has observed ;
45. We are clearly of the view that unless we ensure that wrongdoers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations.
In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that courts otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases.
46. Usually the court should be cautious and extremely careful while granting ex-parte ad interim injunctions. The better course for the court is to give a short notice and in some cases even dasti notice, hear both the parties and then pass suitable biparte orders. Experience reveals that ex-parte interim injunction orders in some cases can create havoc and getting them vacated or modified in our existing judicial system is a nightmare. Therefore, as a rule, the court should grant interim injunction or stay order only after hearing the defendants or the respondents and in case the court has to grant ex-parte injunction in exceptional cases then while granting injunction it must record in the order that if the suit is eventually dismissed, the plaintiff or the petitioner will have to pay full restitution, actual or realistic costs and mesne profits.
47. If an ex-parte injunction order is granted, then in that case an endeavour should be made to dispose of the application for injunction as expeditiously as may be possible, preferably as soon as the defendant appears in the court.
48. It is also a matter of common experience that once an ad interim injunction is granted, the plaintiff or the petitioner would make all efforts to ensure that injunction continues indefinitely. The other appropriate order can be to limit the life of the ex-parte injunction or stay order for a week or so because in such cases the usual tendency of unnecessarily prolonging the matters by the plaintiffs or the petitioners after obtaining ex-parte injunction orders or stay orders may not find encouragement. We have to dispel the common impression that a party by obtaining an injunction based on even false averments and forged documents will tire out the true owner and ultimately the true owner will have to give up to the wrongdoer his legitimate profit. It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have heardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh Vs. State of Punjab (2000) 5 SCC 668 this court was constrained to observe that perjury has become a way of life in our courts.
49. It is a typical example how a litigation proceeds and continues and in the end there is a profit for the wrongdoers.
50. Learned Amicus articulated common mans general impression about litigation in following words :
Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly.
The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road.
34. In our opinion, the present petition is nothing but a gross abuse of process of law and the revision petition is totally false, frivolous and bogus one, which is required to be dismissed with punitive costs of Rs.50,000/-.
Accordingly, we dismiss the present petition with costs of Rs.50,000/- (Rupees Fifty thousand only).
35. Costs of Rs.50,000/- (Rupees fifty thousand only) be deposited by the petitioner by way of demand draft in the name of Consumer Legal Aid Account of this Commission, within one month from today.
36 In case, petitioner fails to deposit the aforesaid costs within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.
37. Pending applications also stand disposed of.
38. List for compliance on 25.5.2012.
...J (V.B. GUPTA) (PRESIDING MEMBER) ....
(VINAY KUMAR) (MEMBER) Sg.