State Consumer Disputes Redressal Commission
Raj Kumar Harish vs Dr. Ashit Syngle on 27 July, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.218 of 2021
Date of institution : 18.06.2021
Date of decision : 27.07.2022
Raj Kumar Harish, Office at Door No.230, 6th Floor, Plama Heights,
Hennur Road, Bengaluru, Karnataka-560043.
........Appellant/Opposite Party
Versus
Dr.Ashit Syngle, House No.111, Sector 23 A, Chandigarh.
........Respondent/Complainant
First Appeal U/S 41 of the Consumer
Protection Act, 2019 against the Orders
dated 27.02.2019 & 19.09.2017 passed by
the District Consumer Disputes Redressal
Commission, SAS Nagar, Mohali.
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 Argued By:-
For the appellant : Sh.Tejeshwar Singh, Advocate
For the respondent : Sh.Sahil Khunger, Advocate
JUSTICE DAYA CHAUDHARY, PRESIDENT
Appellant/Opposite Party-Raj Kumar Harish has filed the present appeal under Section 41 of the Consumer Protection Act, 2019 (as amended upto date) against the orders dated 27.02.2019 & 19.9.2017 passed by the District Consumer Disputes Redressal Commission SAS FA No. 218 of 2021 2 Nagar, Mohali (in short "the District Commission"), whereby the complaint filed by the complainant was allowed. The appellant has also prayed for staying the proceedings pending before the District Commission in EA No.123 of 2019 arising out of said consumer complaint no.263 of 2017.
2. There was a delay of 53 days in filing the appeal. MA No.678 of 2021 was filed by the appellant to condone the delay of 53 days, which was supported by affidavit of appellant-Raj Kumar Harish. Said delay was condoned vide order dated 16.07.2021.
M.A.No.679 of 2021 (For Additional Evidence)
3. This application has been filed by the appellant under Order XLI Rule 27 read with Section 151 of the CPC, 1908 for adducing additional evidence on record.
4. As per submissions made by learned counsel for the appellant and for the reasons recorded in the application said documents are necessary for the proper adjudication of the case and also material to reach to the right conclusion. It has been further mentioned in the application that documents attached with the application are necessary to decide the controversy involved in the present case as these documents could not be placed on record before the District Commission. Accordingly, the said application is allowed as prayed for and the documents annexed with application i.e. Annexures A-3, A-4, A-6, A-7, & A-11 are taken on record. Misc. Application is disposed of accordingly.
Main Case
5. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
6. Briefly, the facts of the case as made out by the respondent/complainant while filing the complaint before the District FA No. 218 of 2021 3 Commission are that complainant-Dr.Ashit Syngle filed CC No.263 of 2017 before the District Commission, which was allowed with the directions to OP to refund the received amount of Rs.9,24,000/- alongwith interest @8% w.e.f. 10.11.2015 till its payment. Compensation for mental agony and harassment was also awarded to the tune of Rs.25,000/- and litigation expenses of Rs.5,000/- in favour of the complainant. The compliance of the order was to be made within a period of 30 days from the date of receipt of certified copy of the order, failing which, the complainant was held entitled for interest @7% p.a. on the amounts of compensation and litigation expenses till payment.
7. However, OP- Raj Kumar Harish was proceeded ex-parte as none appeared on behalf of OP inspite of service. The complaint was allowed at the back of appellant/OP. Both the orders dated 27.02.2019 and dated 19.09.2017 passed by the District Commission have been challenged before this Commission by way of filing the present appeal.
8. Learned counsel for the appellant/opposite party submits that notice was issued by the District Commission on 10.05.2017 but wrong address was mentioned and appellant was never served. Learned counsel also submits that the appellant could not be served on the address mentioned in the complaint. The office of OP was changed and it was in the knowledge of the complainant/respondent but still wrong address was mentioned deliberately to get ex-parte order in its favour in absence of relevant facts before the District Commission. Learned counsel also submits that it was projected that notice was delivered and intentionally the appellant/opposite party did not appear whereas notice was never served upon the appellant. Even the appellant was not given 30 days' time, which was mandatory FA No. 218 of 2021 4 even for raising presumption of service as per Regulation 10 of the Consumer Protection Regulation, 2005. The presumption of service could have been drawn on the basis of report of the process server and no publication was done in the case. Meaning thereby the service was not complete and wrongly reflected as ex-parte. Learned counsel further submits that the appellant came to know when respondent/complainant filed Execution Application No.123 of 2019 and the police officials visited the appellant/opposite party on 01.02.2021 to execute the non-bailable warrants issued against him on 05.11.2020 and then only the appellant/opposite party came to know about the proceedings against him. The appellant was under hospitalization and home quarantine as he was suffering from COVID-19 after found positive on 15.01.2021. Learned counsel further submits that a number of restrictions were imposed during period of lockdown and thereafter the copy of order was applied, which was issued and the appellant/opposite party and appeared in the execution proceedings on 09.03.2021. The copy of the order was received on 12.03.2021. Learned counsel further submits that there are number of material irregularities which have been committed by the District Commission while passing the impugned order. The issue of territorial jurisdiction was also involved as the complaint was filed under the old Consumer Protection Act, 1986, wherein jurisdiction of District Commission was specified under Section 11. As per the provisions of Section 11 (2) of the Act, the complaint was maintainable before the District Commission Mohali in case appellant/OP resided there or worked there for gain but the address of OP is of Bengaluru as the appellant/OP was working in Bengaluru and no cause of action has arisen at Mohali. Meaning thereby no cause of action arose at Mohali. The complaint should have been FA No. 218 of 2021 5 rejected only on this ground. Learned counsel also submits that respondent/complainant was not a 'consumer' under the Consumer Protection Act as per provision under Section 2(d) (ii) of said Act and was excluded from the purview of the Act. In case the respondent/complainant availed any service for commercial purpose. All these facts have not been taken into consideration while passing the ex-parte order. Learned counsel also submits that the District Commission has also erred in not dismissing the case on the ground of non-joinder/mis-joinder of necessary parties. Learned counsel has prayed that orders dated 27.02.2019 as well as order dated 19.09.2017 be set aside. Learned counsel for the appellant has relied upon judgments i.e. Housing Board Haryana Vs. Housing Board Colony Welfare Association, 1995 (5)SCC-672, Rita Kesh Vs. Biswanath Singha, 2018 SCC online NCDRC 120, Neera Khuntia Vs. M/s Emaar Mgf Land Limited and another, CC No.3700 of 2017, decided on 24.12.2021, Ambrish Kumar Shukla & others Vs. Ferrous Infrastructure Pvt. Ltd., CC No.97 of 2016, decided on 07.10.2016, Dushyant Kumar Gupta Vs. Today Homes & Infrastructure Private Limited, CC No.198 of 2015, decided on 31.01.2017, Indraprastha Medical Corporation Limited Vs. Alpine International & others, CC No.212 of 2009, decided on 11.11.2013 (NC), Pawan Kumar & another Vs. M/s Raheja Developers Limited & another, CC No.1402 of 2016, decided on 19.09.2016 (NC) and Rajbir Singh Oberoi & another Vs. AA Walker Estates Private Limited & others, CC No.277 of 2018, decided on 08.01.2020 (NC) in support of his arguments.
9. Learned counsel for the respondent/complainant submits that appellant intentionally did not appear before the District Commission in the complaint and District Commission has rightly proceeded the OP ex-parte FA No. 218 of 2021 6 whereas he was duly served on the notice on 29.06.2017, which is clear from the tracking report attached by the appellant himself as Annexure A-8. The appellant/OP was proceeded ex-parte after the expiry of period of 30 days. Learned counsel further submits that address from which the appellant/OP communicated was mentioned in the complaint by the complainant/respondent and change of address, if any, was not informed. He also submits that the District Commission Mohali was having the territorial jurisdiction to try the complaint as architectural services with respect to the hospital were availed at Mohali, as Hospital was to be constructed at Mohali. By considering those aspects, the order was rightly passed and there is no force in the arguments with regard to the territorial jurisdiction. Arguments raised with regard to the issue of 'consumer' has been mentioned in para No.2 of the complaint as it has been specifically mentioned that complainant in order to serve the society and earn his livelihood had planned to open a Multi Specialty Hospital at Mohali.
10. There are serious allegations of fraud against the appellant/OP. Inspite of legal notice dated 19.12.2016 no reply was filed to the notice address to him even thereafter a number of reminders were also sent but no attention was paid.
11. Heard the arguments of learned counsel for both the parties. We have also perused both the impugned orders and other documents available on record.
12. As per the appellant/OP, the notice was issued by the District Commission but it was issued on the wrong address and the appellant was never served, whereas as per the stand of respondent/complainant there was no change in the address and notice was delivered as per tracking FA No. 218 of 2021 7 report. However by considering the facts of the case and in the interest of justice the appellant/OP deserves to be granted one more opportunity to contest the case as in case the appellant was negligent then he would not like to appear before this Commission to challenge the orders passed by the District Commission but still the respondent/complainant can be compensated by paying the cost and ex-parte order has been passed only on technical ground and the litigation between the parties would be prolonged in the future and as such ends of justice would be done in case the OP/appellant is allowed to contest case by granting liberty to prove his case within the reasonable period.
13. In case the ex-parte is not set aside, the appellant/OP would suffer irreparable loss which cannot be compensated in any manner as the object of Order 9 Rule 7 of the Code of Civil Procedure is only to give one more opportunity to the aggrieved party, in case bonafide reasons are there for not appearing before the Court on the date fixed and on showing as to what injustice has been caused to the party.
14. The Order 9 Rule 7 of the Code of Civil Procedure (CPC), provides jurisdiction to the Court to set aside ex parte order by imposing costs, is reproduced as under:
"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."
15. The Hon'ble Punjab and Haryana High Court in one case titled as "Smt. Sahib Kaur Vs. Sukhbir Singh & others" Civil Revision No.1700 of FA No. 218 of 2021 8 2004 has decided First Appeal No.217 of 2021 on 25.05.2016 as held in para 8 of the judgment which is reproduced as under:-
"8. In the circumstances, even if 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. In any case, in the peculiar facts and circumstances of the case and particularly the fact that the learned trial Court considered the delay in filing the application seeking setting aside the ex parte proceedings to be belated, it is considered just and expedient that the ex parte order should be set aside so as to enable the petitioner to file her written statement and contest the suit of the plaintiff on merits."
16. The Court can exercise its power to set aside ex parte order by imposing costs by which the Court can put the party on certain terms as spelled out from the expression "upon such terms as the Court directs as to costs or otherwise". The Hon'ble Supreme Court of India in judgment of case "G.P. Srivastava Vs. Shri R.K. Raizada & others" Special Leave Petition (Civil)17942-43 of 1999, decided on 03.03.2000 has held as under:-
"Even if the appellant was found to be negligent, the other side could have been compensated by costs and the ex-parte decree set aside on such other terms and conditions as were deemed proper by the Trial Court. On account of the unrealistic and technical approach adopted by the courts, the litigation between the parties has unnecessarily been prolonged for about 17 years. The ends of justice can be met only if the appellant- defendant is allowed opportunity to prove his case within a reasonable time. Under the circumstances, the appeal is allowed by setting aside the order of the High Court and of the Trial Court. The exparte Judgment and decree passed against the appellant is set aside on payment of costs of Rs.5,000/- to the other side. The Trial Court is directed to afford the appellant opportunity to prove his case and expedite the disposal of the suit preferably within a period of six months from the date of receipt of the copy of this order."
17. The object of service of notice is to apprise the opposite party(ies) about pendency of the case and it is necessary that opposite party(ies) must have knowledge about the pendency of the case against him. In the present case, appellant/OP has mentioned in the grounds of appeal that there was a change of address and because of that reason he could not be FA No. 218 of 2021 9 served and as such he was not having any knowledge about the proceedings pending before the District Commission. The purpose of passing such order by setting aside the ex-parte order is to prevent the miscarriage of justice and also to meet the ends of justice. Accordingly, one more opportunity is required to be granted to the appellant/OP to put up their case by setting aside the ex-parte proceedings but subject to payment of cost so that the respondent/complainant can be compensated for taking more time in disposal of the case. However, natural justice demands no party should be left unheard and adequate opportunity is required to be granted. Moreover the respondent/complainant is not going to be harmed in any manner in case he is compensated in monetary terms.
18. Accordingly, we are of the view the impugned Orders dated 27.02.2019 and 19.09.2017 are liable to be set aside without touching the merits of the case. By considering all these facts and circumstances of the case, the appeal is allowed and the orders dated 27.02.2019 and 19.09.2017 are set aside, subject to cost of Rs.10,000/- to be paid to the respondent/complainant and case is remanded back to the District Commission. The District Commission is also directed to allow the appellant/OP to join the proceedings by affording one opportunity not only to plead its case by filing reply but also to lead evidence in support of its defence. The District Commission is also directed to decide the case afresh on merits within a period of three months in accordance with law after giving adequate opportunities to the parties.
FA No. 218 of 2021 10
19. Both the parties are directed to appear before the District Commission on 18.08.2022. The copy of this order be also sent to the parties as well as the District Commission.
20. The appellant/OP had deposited an amount Rs.25,000/- at the time of filing the appeal with this Commission and further deposited an amount of Rs.6,89,520/- in compliance with order dated 25.04.2021 of this Commission. Said amounts, along with interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith. Out of which, Rs.10,000/- be paid to the respondent/complainant and remaining amount be released to the appellant/OP. The appellant and respondent/complainant may approach the District Commission for the release of the same and the District Commission may pass appropriate order in this regard in accordance with law.
21. The appeal could not be decided within the stipulated period due to heavy pendency of Court cases and due to pandemic of Covid-19.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (URVASHI AGNIHOTRI) MEMBER July 27, 2022 (Rupinder 2)