State Consumer Disputes Redressal Commission
1. Hdfc Bank Ltd., Retail Asset Division ... vs Triveni Singh on 1 April, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Revision Petition No. : 07 of 2013 Date of Institution : 22.02.2013 Date of Decision : 01.04.2013 1. HDFC Bank Ltd., Retail Asset Division Bank, Plot Number 28, Phase 1, Industrial Area, Chandigarh. 2. The General Manager, HDFC Bank Ltd., C Wing, Trade World 11th Floor, Kamla Mills Compound, Bapat Marg, Lower Parale, Mumbai Revision Petitioners/ Opposite Parties V e r s u s Triveni Singh, Village Tipra PO & Tehsil Kalka, near Pandit Shanker House (Khera Temple) Kalka. ....Respondent/complainant BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Argued by: Sh. Sandeep Bhardwaj, Advocate Proxy for Sh. R. S. Bhatia, Advocate for the Revision Petitioners.
Sh.
Gurvinder Singh, Advocate for the respondent.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This Revision Petition is directed against the order dated 19.11.2012, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, the Opposite Parties (now Revision-Petitioners), were proceeded against exparte and the case was adjourned for exparte arguments of the complainant, for 30.11.2012.
2. The facts giving rise to the filing of the instant Revision Petition, are that the complainant, in the month of April 2012, availed of loan, in the sum of Rs.1,13,000/-, from the Opposite Parties. He had been regular, in paying monthly installments, towards the said loan. In order to settle the amount of previous loan, in the sum of Rs.63,000/-, availed of by the complainant, from the Opposite Parties, a sum of Rs.1,000/-, as processing fee, was agreed, to be paid by the complainant, to them. The remaining amount of loan, was agreed to be paid, in 30 equal monthly installment, to the Opposite Parties, by the complainant. It was stated that the Opposite Parties, instead of charging Rs.1,000/-, as processing fee, illegally charged Rs.2,825/-, for the purpose aforesaid. It was further stated that, despite execution of the agreement dated 21.04.2012, the Opposite Parties, illegally and arbitrarily, increased the tenure of equal monthly installments, for the repayment of loan, to 36 months from 30 months, as a result whereof, the complainant was forced to pay Rs.1,247/- per month, towards the installments, aforesaid, instead of Rs.1000/- per month, as settled between the Parties. It was further stated that the complainant, approached the Opposite Parties, through every possible means, for rederessal of his grievance, but to no avail. 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.
3. When the complaint was fixed for filing vakalatnama, written version, and evidence of the Opposite Parties, none put in appearance, on behalf of the Opposite Parties, on 19.11.2012, as a result whereof, they were proceeded against exparte.
4. Feeling aggrieved, the instant Revision Petition, was filed by the Revision-Petitioners/Opposite Parties, against the order 19.11.2012.
5. We have heard the Counsel for the Parties, and, have gone through the record of the case, carefully.
6. The Counsel for the Revision-Petitioners/Opposite Parties, submitted that, on 19.11.2012, when the complaint case was fixed for filing of vakalatnama, written version, and evidence, on behalf of the Opposite Parties, he (Counsel in the complaint also), could not come present, in the District Forum, in time, due to some unavoidable circumstances. He further submitted that, by the time he reached the District Forum, the Opposite Parties, were already proceeded against exparte. He further submitted that, an application for restoration of the order dated 19.11.2012, was also moved, in the District Forum, but the same was dismissed by it, on the ground, that it had no Jurisdiction, to review its own order, in view of the judgment rendered by the Honble Supreme Court, in case titled as Rajeev Hitendra Pathak and Ors. Vs. Achyut Kashinath Karekar and Anr., IV (2011) CPJ 35 (SC). He further submitted that, in case, the exparte order, is not set aside, a grave miscarriage of justice is likely to occasion, to the Revision Petitioners/Opposite Parties, as, in that event, they will be condemned unheard. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
7. On the other hand, the Counsel for respondent/ complainant, submitted that the absence of the Counsel for the Revision-Petitioners/Opposite Parties, on 19.11.2012, in the District Forum, was intentional and deliberate. He further submitted that two to three dates were granted to the Opposite Parties/Revision Petitioners, for filing vakalatnama, written version, alongwith evidence, by way of affidavit(s), but they failed to do so. He further submitted that, no cogent and convincing material was produced, on record, by the Counsel for the Revision- Petitioners (Counsel in the complaint also), as to what were the unavoidable circumstances, due to which he could not come present, in the District Forum, in time, on 19.11.2012. He further submitted that the order of the District Forum, in proceeding against the Opposite Parties exparte, being legal and valid, is liable to be upheld.
8. The complaint was admitted, vide order dated 03.10.2012 and notice was ordered to be issued to the Opposite Parties, for 22.10.2012, by the District Forum. On 22.10.2012, Sh. S.S. Bhatia, Advocate, appeared, and filed his memo of appearance, on behalf of the Opposite Parties, and the complaint case was adjourned to 15.11.2012, for filing vakalatnama, written version, and evidence, by way of affidavits, on behalf of the Opposite Parties. On 15.11.2012, vakalatnama, written version, and evidence, by way of affidavits, on behalf of the Opposite Parties, were not filed. On the request of the Counsel for the Opposite Parties, the complaint case was again adjourned, to 19.11.2012, for the same purpose. However, on 19.11.2012, none appeared on behalf of the Opposite Parties, as a result whereof, the order impugned was passed.
9. 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, also 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.
10. As stated above, the complaint was admitted, vide order dated 03.10.2012, and notice was ordered to be issued to the Opposite Parties, for 22.10.2012, by the District Forum. On 22.10.2012, Sh. S.S. Bhatia, Advocate, appeared, and filed his memo of appearance, on behalf of the Opposite Parties. Thereafter, the complaint case was adjourned to 15.11.2012, and 19.11.2012, for the purpose. But, on 19.11.2012, the Counsel for the Opposite Parties, did not come present, in the District Forum, due to some unavoidable circumstances, as a result whereof, the District Forum, passed the order impugned, out of decision whereof, the instant Revision Petition has arisen.
11. No doubt, there was negligence, on the part of the Counsel for the Opposite Parties, as it was required of him, to reach the District Forum, when the complaint was called, and if, due to some unavoidable circumstances, he was unable to come present, on the date fixed, in the alternative, he could have instructed his Junior Counsel, to put in presence, and file the vakalatnama, written version and evidence, on behalf of the Opposite Parties, or request the District Forum, to give a short date, for the purpose, but he failed to do so.
Since, the Counsel for the Opposite Parties, did not take the requisite measures, referred to above, negligence was attributable to him. It is settled principle of law, that for the negligence or inadvertence of the Counsel, the party should not suffer. In our considered opinion, an opportunity should be afforded to the Opposite Parties, for filing vakalatnama, written version and evidence, so that the complaint could be decided, on merits, and the rights of the Parties are determined by one Forum, on merits, one way or the other. In this view of the matter, the order impugned is liable to be set aside.
No doubt, for, whatsoever, the reason may be, by not filing the vakalatnama, written version, alongwith evidence, by way of affidavit(s), the Opposite Parties/Revision Petitioners, certainly caused delay, in the disposal of the complaint, on merits.
12. According to Section 13 (3A) of the Act, every complaint is required to be decided, within three months, from the date of service of the Opposite Party, 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). The complaint was filed, in the District Forum, on 21.09.2012. A period of three months has already lapsed, much earlier. The Revision Petitioners, are, thus, required to be burdened with costs, to meet the ends of justice.
13. No other point, was urged, by the Counsel for the Parties.
14. For the reasons recorded above, the Revision Petition is accepted. The order dated 19.11.2012, rendered by the District Forum, is set aside, subject to payment of costs of Rs.3000/-, by the Revision Petitioners/Opposite Parties, to the complainant/ respondent. The District Forum shall grant only one date to the Opposite Parties, for filing vakalatnama, written reply, alongwith evidence, by way of affidavit(s), and, thereafter, decide the complaint, on merits, in accordance with the provisions of law. The payment of costs to the complainant/respondent, shall be a condition precedent. In other words, the payment of costs, shall be made, before filing vakalatnama, written reply, alongwith evidence, by way of affidavit(s).
15. The parties are directed to appear, before the District Forum (I) on 05.04.2013, at 10.30 A.M., for further proceedings.
16. The District Forum record, alongwith a certified copy of the order, be sent back, to it, immediately, so as to reach there, well before the date and time fixed i.e. 05.04.2013, at 10.30 A.M.
17. Certified Copies of this order, be sent to the parties, free of charge.
18. The Revision Petition file be consigned to the Record Room, after due completion.
Pronounced.
April 1, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg