State Consumer Disputes Redressal Commission
Tarun Vats, Partner M/S Panache Infra vs Smt. Bandna Devi on 18 August, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Revision Petition No. : 30 of 2015 Date of Institution : 17.08.2015 Date of Decision : 18.08.2015 Tarun Vats, Partner, M/s Panache Infra, having office at SCO No.34 to 37, Second Floor, Cabin No.201-A, Sector 9-D, Chandigarh. ...... Revision-Petitioner/Opposite Party No.2 V e r s u s Smt. Bandna Devi wife of Sh.Naresh Kumar Barwal, permanent resident of House No.52/1, Village Pleta, Post Office Manjhoti, District Kangra (HP), presently residing at House No.258, Sector 2, Panchkula (HR.) Smt. Poonam Kumar wife of Sh.Manohar Lal, permanent resident of House No.52/1, Village Pleta, Post Office Manjhoti, District Kangra (HP), presently residing at House No.258, Sector 2, Panchkula (HR.) .....Respondents/Complainants BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by:-Sh.Inderdeep Singh, Advocate for the Revision- Petitioner/Opposite Party No.2.
Sh.Deepak Aggarwal, Advocate for the respondents/complainants.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This Revision-Petition is directed against the order dated 05.05.2015, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, Opposite Party No.2 (now Revision-Petitioner), was proceeded against exparte.
The facts, in brief, are that the complainants applied to the Opposite Parties, for a unit, in their scheme, for which they had paid a sum of Rs.7,25,000/-. It was stated that, later on, the complainants opted for buyback option, as per the terms and conditions of the buyback Agreement executed between the parties. It was further stated that, as such, the amount of buyback option was honoured by the Opposite Parties, by way of issuing cheques, but the same were dishonoured, when presented before the bank concerned, with the remarks "payment stopped by drawer". It was further stated that the complainants approached the Opposite Parties through every possible means, for redressal of their 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, claiming various reliefs.
Despite deemed service, none put in appearance, on behalf of Opposite Party No.2, before the District Forum, as a result whereof, it was proceeded against exparte, vide order dated 05.05.2015.
Feeling aggrieved, the instant Revision-Petition, was filed by the Revision-Petitioner/Opposite Party No.2, against the order dated 05.05.2015.
We have heard the Counsel for the parties, and have gone through the record of the case, carefully.
6.a. The Counsel for the Revision-Petitioner/ Opposite Party No.2, submitted that, no doubt, on 05.05.2015, none put in appearance, on behalf of Opposite Party No.2, in the District Forum, in the consumer complaint, bearing No.159 of 2015, despite the fact that notice was served upon him. He further submitted that, Opposite Party No.2, could not put in appearance, in the District Forum, on 05.05.2015, on account of the reason that he (Opposite Party No.2) had to go to his native village at Palampur, Kangra, Himachal Pradesh, to see his father, who was not well, on account of his ill health. He further submitted that, in these circumstances, the Revision-Petitioner/Opposite Party No.2, also could not contact his Counsel. He further submitted that the absence of Opposite Party No.2, on the date fixed, in the District Forum, was neither intentional, nor deliberate, but for the reasons, aforesaid. It was further submitted that, in case, the order impugned is not set aside, irreparable injury is likely to occasion, to the Revision-Petitioner/Opposite Party No.2, as, in that event, he would be condemned unheard. He further submitted that, thus, the order of the District Forum, in proceeding exparte against Opposite Party No.2, is liable to be set aside On the other hand, the Counsel for the respondents/complainants, submitted that since absence of the Revision-Petitioner/Opposite Party No.2, on 05.05.2015, despite deemed service, in the District Forum, was intentional and deliberate, the order impugned is liable to be upheld.
Perusal of the District Forum record, reveals that the complaint was admitted, vide order dated 26.03.2015, and notice was ordered to be issued to the Opposite Parties, for 05.05.2015. On 05.05.2015, the notice sent to Opposite Party No.2 through registered A.D. cover, was not received back served/un-served. Since more than 30 days had lapsed, from the date of issuance of notice, but the same had not been received back, with or without any report, the District Forum, presumed that Opposite Party No.2, had been duly served. However, despite deemed service, no legally authorized representative, on its behalf, put in appearance, as a result whereof, Opposite Party No.2, was proceeded against exparte, vide order dated 05.05.2015.
Admittedly, the notice sent for the service of Opposite Party No.2, on 30.03.2015, for the date fixed i.e. 05.05.2015, was received by him. No doubt, it was submitted by the Counsel for the Revision-Petitioner that the Revision-Petitioner/Opposite Party No.2, could not appear, in the District Forum, on the date fixed, on account of the reason that he (Revision-Petitioner/ Opposite Party No.2), had to go to his native village at Palampur, Kangra, Himachal Pradesh, to see his father, who was not well, on account of ill health, which took some time, and, on the other hand, he could not contact his Counsel, to give him appropriate instructions, for defending the consumer complaint. It may be stated here, that the plea taken by the Revision-Petitioner/ Opposite Party No.2, in this regard, does not carry any weight, as the same is not supported by any cogent material. No medical record, pertaining to the alleged ill health of the father of the Revision-Petitioner/Opposite Party No.2, has been placed, on record. The Revision-Petitioner/Opposite Party No.2, failed to produce, on record, any document, depicting the actual reason, for his non-appearance, in the District Forum, on the date fixed i.e. 05.05.2015, Therefore, in the absence of production of any cogent material, in the shape of medical record, the bald assertion of the Revision-Petitioner/Opposite Party No.2, with regard to his absence, in the District Forum, on the date fixed i.e. 05.05.2015, cannot be taken into consideration. Thus, it means that despite service, none put in appearance, on behalf of Opposite Party No.2, in the District Forum, on the date fixed, for the reasons, best known to him, as a result whereof, he was proceeded against exparte, by the District Forum.
However, whatever the case may be, 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, 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.
In our considered opinion, an opportunity should be afforded to Opposite Party No.2, for filing vakalatnama, written version, and evidence, by way of affidavit(s), so that the complaint could be decided, on merits, and the rights of the Parties are finally determined, by one Forum, one way or the other. In this view of the matter, the order impugned is liable to be set aside.
For, whatsoever, the reason may be, by not appearing, in the District Forum, on the date fixed, and not filing the vakalatnama, written version, alongwith evidence, by way of affidavit(s), the Revision-Petitioner/ Opposite Party No.2, certainly caused delay, in the disposal of complaint, on merits. According to Section 13 (3A) of the Act, an endeavour should be made to decide every complaint, within three months, from the date of service of the Opposite Party(s), except the one, in which the goods are required to be sent to the Laboratory, for examination. In that event, an endeavour should be made to decide the complaint, 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 12.03.2015. Since, the case is being remanded back, certainly delay shall be caused, in the disposal thereof. The Revision-Petitioner is, thus, required to be burdened with costs, for causing delay, in the disposal of complaint and to meet the ends of justice.
For the reasons recorded above, the Revision-Petition is accepted. The order dated 05.05.2015, rendered by the District Forum, qua Opposite Party No.2 is set aside, subject to payment of costs of Rs.4,000/-, by him (Revision-Petitioner/Opposite Party No.2), to the respondents/complainants. The District Forum shall grant only one reasonable opportunity, to Opposite Party No.2, 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 cost, to the tune of Rs.4,000/-, referred to above, to the respondents/complainants, shall be a condition precedent. In other words, the payment of cost, shall be made, before filing the vakalatnama, written reply, alongwith evidence, by way of affidavit(s).
The parties are directed to appear, before District Forum (I) on 24.08.2015 at 10.30 A.M., for further proceedings.
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. 24.08.2015 at 10.30 A.M. Certified Copies of this order, be sent to the parties, free of charge.
The Revision-Petition file be consigned to the Record Room, after due completion.
Pronounced 18.08.2015 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg