State Consumer Disputes Redressal Commission
House Of Fitness Pvt. Ltd., vs 1. Sh. Arjun Chattopadhayaya on 9 October, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Revision Petition No. : 39 of 2014 Date of Institution : 30.09.2014 Date of Decision : 09/10/2014 House of Fitness Pvt. Ltd., through 203-204, IInd Floor, Building No.5, Local Shopping Complex, Derawal Nagar, Delhi-110009. Revision-Petitioner/Opposite Party No.4 V e r s u s 1. Sh. Arjun Chattopadhayaya, son of Sh. Siddharth Chattopadhayaya, House No.1375, Sector 19-B, Chandigarh ....Respondent No.1/complainant 2. Anytime India Fitness Pvt. Ltd., Floor Eastern Wing, Tricity Centre, Plot No. 28, Industrial and Business Park, Phase-I, Chandigarh. ....Respondent No.2/Opposite Party No.1 BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by:Sh.
Ankan Suri and Lakshay Sawhney, Advocate for the Revision-Petitioner.
Sh. Anant Pal Singh, Advocate for respondent No.1.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This Revision-Petition is directed against the order dated 30.04.2014, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, Opposite Party No.4 (now Revision-Petitioner), was proceeded against exparte.
2. Consumer Complaint No.88 of 2014 titled as Arjun Chattopadhayaya Vs. Anytime India Fitness Pvt. Ltd. and another, was filed by the complainant, on the allegations that the Opposite Parties were running fitness Centre/gymnasium, at Chandigarh, having their Registered Offices at Delhi and Mumbai. According to the complainant, he became the member of fitness Centre/gymnasium of the Opposite Parties, by availing of their services, on payment of Rs.8,491/-. Later on, in May 2011, the said fitness Centre/gymnasium, was closed and public notice was pasted by the Opposite Parties, on 07.07.2011. Claiming that the Opposite Parties were deficient, in rendering service, and on account of closure of fitness Centre/gymnasium, a lot of mental agony and physical harassment was caused to the complainant, he filed the complaint, when his grievance was not redressed by the Opposite Parties.
3. Despite deemed service, through registered A.D. cover, for 30.04.2014, Opposite Party No.4/Revision-Petitioner, did not put in appearance, on the said date (30.04.2014), and, accordingly, it was proceeded against exparte, on that date, by the District Forum.
4. Feeling aggrieved, the instant Revision-Petition, was filed by the Revision-Petitioner/Opposite Party No.4.
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-Petitioner submitted that on 30.04.2014, when Opposite Party No.4 was proceeded against exparte, the Counsel on behalf of House of Fitness Private Limited, put in appearance, and filed written objections, alongwith affidavit of Navendu Jain and Annexures R-1 to R-5. He further submitted that, in first paragraph of the order dated 30.04.2014, Opposite Party No.4 was proceeded against exparte, on the ground that despite deemed service, no authorized representative put in appearance, on its behalf, but in the second paragraph of the said order, it was also recorded by the District Forum that the written objections, on behalf of House of Fitness Private Limited, alongwith affidavit of Navendu Jain, and Annexures R1 to R-5, had been filed. He further submitted that since, on behalf of House of Fitness Private Limited/Opposite Party No.4, the Counsel was present, it is not known, as to how it was proceeded against exparte. He further submitted that, as such, the exparte order passed against Opposite Party No.4, despite presence of its Counsel, on 30.04.2014, in the District Forum is illegal, and liable to be set aside.
7. On the other hand, the Counsel for respondent No.1/complainant, submitted that the order dated 30.04.2014, passed by the District Forum, vide which Opposite Party No.4 was proceeded against exparte, being legal and valid is liable to be upheld.
8. After giving our thoughtful consideration, to the submissions made by the Counsel for the parties, and on going through the evidence and record of the case, we are of the considered opinion, that the Revision-Petition is liable to be accepted, for the reasons to be recorded hereinafter. It may be stated here, that the present Revision-Petition has been filed by the Revision-Petitioner/Opposite Party No.4. The nomenclature of Opposite Party No.4, as given in the array of the Opposite Parties, in the Consumer Complaint, referred to above, was Anytime Fitness India, Head Office, House of Fitness Pvt. Ltd., 203-204, Second Floor, Building No.5, Local Shopping Complex, Derawal Nagar, Delhi-110009, through its Authorized Representative/Director. The order dated 30.04.2014, vide which, Opposite Party No.4 was proceeded against exparte reads as under:-
Notice was sent to OP No.4 through registered AD letter on 24.02.2014. Neither the registered letter has been received back undelivered nor the acknowledgment has been received. As more than 30 days have passed since the notice was issued, therefore, it is presumed (Sub Clause (2) of Regulation 10 of The Consumer Protection Regulations, 2005, that OP No.4 has been duly served. Neither the Director of OP No.4 is present in person nor any authorized agent has appeared on behalf of OP No.4. So, OP No.4 is proceeded as ex-parte.
Written objections on behalf of House of Fitness Pvt. Ltd. alongwith affidavit of Navendu Jain and Annexure R-1 to R-5 has been filed.
Counsel for complainant seeks time to file correct address of OP No.1 to 3. The case is adjourned to 16.05.2014 for filing of correct address of OP No.1 to 3.
9. From the afore-extracted order dated 30.04.2014, passed by the District Forum, it is evident that, on behalf of Opposite Party No.4, its Counsel put in appearance, and filed written objections, alongwith affidavit of Navendu Jain and Annexures R-1 to R-5. Once, the Counsel on behalf of Opposite Party No.4, was present on 30.04.2014, it is not known, as to, under what circumstances, Opposite Party No.4 was proceeded against exparte, by the District Forum. It appears that, on account of some mistaken belief, Opposite Party No.4 was proceeded against exparte, though its Counsel was present and filed written objections. Under these circumstances, the order dated 30.04.2014, passed by the District Forum, is illegal and suffers from Jurisdictional error. The order dated 30.04.2014 is, thus, liable to be set aside.
10. Even otherwise, 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.
11. For the reasons recorded above, the Revision-Petition is accepted. The order impugned is set aside. The case is remanded back, to the District Forum, with a direction to allow the Revision-Petitioner/Opposite Party No.4, to join the proceedings in Consumer Complaint No.88 of 2014, file written statement and evidence and then decide the same (case), on merits, in accordance with the provisions of the Act.
12. The parties are directed to appear, before District Forum (II) on 22.10.2014, at 10.30 A.M., for further proceedings.
13. The District Forum record, alongwith a certified copy of the order, be sent back immediately, so as to reach there, well before the date and time fixed i.e. 22.10.2014, at 10.30 A.M.
14. Certified copies of this order, be sent to the parties, free of charge.
15. The Revision-Petition file be consigned to Record Room, after completion.
Pronounced.
09/10/2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg STATE COMMISSION (First Revision-Petition No.39 of 2014) Argued by:Sh.
Ankan Suri and Lakshay Sawhney, Advocate for the applicant/Revision-Petitioner.
Sh. Anant Pal Singh, Advocate for respondent No.1.
Dated the 9th day of October 2014 ORDER Alongwith the Revision-Petition, an application, for condonation of delay of 55 days, as per the applicant/Revision-Petitioner (as per the office report 62 days), in filing the same (Revision-Petition), has been moved, by the applicant/Revision-Petitioner, stating therein that, no doubt, the Revision-Petition was required to be filed within 90 days, from the date of receipt of a certified copy of the order impugned. It was further stated that, on 16.05.2014, the Revision-Petitioner/Opposite Party No.4, filed an application, under Order 1 Rule (10 (2) read with Section 151 of the Civil Procedure Code, before the District Forum, for striking out its name, from array of the Opposite Parties, which was dismissed by it (District Forum), vide order dated 19.08.2014. It was further stated that against the said order dated 19.08.2014, Revision-Petition No.37 of 2014, was filed by the Revision-Petitioner, before this Commission, which was ultimately dismissed as withdrawn vide order dated 19.09.2014, with liberty to resort to an appropriate remedy, which may be available to it (Revision-Petitioner). It was further stated that pursuant to the order dated 19.09.2014, passed by this Commission, the present Revision-Petition was filed. It was further stated that, in these circumstances, the delay of 55 days, in filing the Revision-Petition occurred. It was further stated that the delay, in filing the Revision-Petition, was neither intentional, nor willful. Accordingly, the prayer, referred to above, was made.
2. Notice of this application, was given to respondent No.1. However, it did not file reply to the same.
3. We have heard the Counsel for the parties, and have gone through the record.
4. No doubt, there is delay of 55 days, as per the applicant/Revision-Petitioner (as per the office report 62 days), in filing the Revision-Petition. The question arises, as to whether, the delay was intentional, or on account of the reasons, beyond the control of the applicant/Revision-Petitioner. Before discussing this question, let us have a look at law, laid down by the Hon`ble Supreme Court, and the Mumbai (Maharashtra) High Court, regarding the condonation of delay. In Lanka Venkateswarlu (D) By Lrs. vs State Of A.P. and Ors., A.I.R. 2011 S.C. 1199: (2011) 4 S.C.C. 190, the Apex Court held as under:-
(i). The Courts generally adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act.
(ii). Rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly.
(iii). Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that.
(iv). Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law.
5. In N.Balakrishnan Vs. M.Krishnamurthy (1998) 7 Supreme Court Cases 123, there was a delay of 883 days, in filing application, for setting aside exparte decree, for which application for condonation of delay was filed, the Apex Court held as under:-
It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.
10. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice.
The time- limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause."
The Court further observed in paragraphs 11, 12 and 13 which run thus:-
"11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari (1969) 1 SCR 1006 and State of W.B. v. Administrator, Howrah Municipality (1972) 1 SCC 366.
13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. "
6. In Jyotsana Sharda vs Gaurav Sharda, (2010-3) 159 P.L.R. D15,Mumbai (Maharashtra) High Court, while condoning 52 days delay, in filing the appeal, observed as under:-
No doubt, originally the Apex Court in Ram Lal Vs. Rewa Coalfield AIR 1962 SC 351 had held that while seeking condonation of delay under Section 5 of the Limitation Act the application must not only show as to why he did not file the appeal on the last day of limitation but he must explain each day`s delay in filing the appeal. The later judgments of the Apex Court have considerably diluted this requirement of explaining each days delay by a party. The latest trend and the ratio cases which the Apex Court has laid down in the judgments is that the Court must adopt a liberal approach rather than pedantic approach while doing so. It must see the bonafides of the person who is preferring the appeal rather than seeing the quantum of delay which has been occasioned. Reliance in this regard can be placed on Collector, Land Acquisition, Anantnag and Anr. Vs. Mst. Katiji & Ors. AIR 1987 SC 1353.
7.
The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. It may be stated here that, no doubt, the Revision-Petitioner/Opposite Party No.4, was proceeded against exparte, on 30.04.2014, by the District Forum, on the ground that none put in appearance, on its behalf, despite deemed service. On the other hand, the District Forum order reveals that instead of filing Revision-Petition against the said order dated 30.04.2014, before this Commission, Opposite Party No.4 moved an application, before it (District Forum), under Order 1 Rule 10 (2) read with Section 151 of the Civil Procedure Code, for striking out its name, from the array of the Opposite Parties, which was dismissed by it (District Forum), vide order dated 19.08.2014. However, as stated above, the Revision-Petition filed against the said order dated 19.08.2014, was, ultimately, dismissed as withdrawn, vide order dated 19.09.2014, by this Commission, with liberty to resort to an appropriate remedy, which may be available to it (Revision-Petitioner). It was only thereafter, that the instant Revision-Petition was filed by the Revision-Petitioner/Opposite Party No.4, against the order dated 30.04.2014, vide which, it was proceeded against exparte.
8. It may be stated here that, no doubt, it has already been held by this Commission, in the main order that the Revision-Petitioner/Opposite Party No.4, had been proceeded against exparte vide order dated 30.04.2014, on account of some mistaken belief, by the District Forum, though its Counsel was present and filed written objections, yet, it was required of it (Revision-Petitioner/Opposite Party No.4), to file the Revision-Petition, within 90 days, from the date of passing the same, but it failed to do so, and tried to take shelter under the proceedings, which took place, before the District Forum, where it moved an application, under Order 1 Rule 10 (2) read with Section 151 of the Civil Procedure Code, for striking out its name, and which was finally dismissed.
9. Whatever the case may be, it may be stated here that, it is settled principle of law, that normally every lis should be decided on merits. When substantial justice and the procedural wrangles are pitted against each other, then the former shall prevail over the latter. No doubt, there was some negligence, on the part of the Revision-Petitioner/Opposite Party, in filing the Revision-Petition, after a delay of 55 days, for which, it could be burdened with some costs, as after the remand of the case, disposal of the Consumer Complaint shall certainly be delayed. The delay of 55 days, in filing the Revision-Petition cannot be said to be so huge, as to deny the substantial justice. There is, thus, sufficient cause, for condoning the delay. The application, thus, deserves to be accepted.
10. For the reasons recorded above, the application for condonation of delay of 55 days, in filing the Revision-Petition, is allowed, subject to payment of costs, to the tune of Rs.1000/-. The delay is, accordingly, condoned.
11. Admitted.
12. It be registered.
13. Arguments, in the main Revision-Petition have already been heard.
14. Vide our detailed order of the even date, recorded separately, this Revision-Petition has been accepted. The order impugned has been set aside. The case has been remanded back, to the District Forum, with a direction to allow the Revision-Petitioner/Opposite Party No.4, to join the proceedings in Consumer Complaint No.88 of 2014, file written statement and evidence and then decide the same (case), on merits, in accordance with the provisions of the Act. However, payment of costs, referred to above, shall be a condition precedent. In other words, in the first instance, the cost of Rs.1000/-, shall be made by the Revision-Petitioner/Opposite Party No.4 to respondent No.1/complainant, and, only, thereafter, it shall be allowed to file the written statement and evidence before the District Forum.
15. The parties have been directed to appear, before District Forum (II) on 22.10.2014, at 10.30 A.M., for further proceedings.
16. The District Forum record, alongwith a certified copy of the order, has been ordered to be sent back immediately, so as to reach there, well before the date and time fixed i.e. 22.10.2014, at 10.30 A.M.
17. Certified copy of this order, be sent to the parties, free of charge.
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(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT (PADMA PANDEY) MEMBER rG