Madras High Court
The Manager, Indian Bank And Four Ors. vs District Consumer Disputes Redressal ... on 28 June, 1996
Equivalent citations: 1996(2)CTC84, (1996)IIMLJ241
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
ORDER AR. Lakshmanan, J.
1. The above civil revision petition has been filed by the Manager, Indian Bank, High Court Extension Counter, Madras, on his behalf and on behalf of the Indian Bank, under Article 227 of the Constitution of India against the order dated 8.4.1991 in O.P. No. 86 of 1991 passed by the District Consumer Disputes Redressal Forum, Madras (hereinafter referred to as the Forum), refusing to entertain the petition filed by the Indian Bank for setting aside the order passed on l.4.1991 setting the petitioners ex parte.
2. The 2nd respondent filed a complaint before the Forum alleging wrongful dishonouring of a cheque issued by him on his personal S.B. Account No. 5891/25 with the Indian Bank, High Court Extension Counter, Madras. The said cheque was drawn in favour of M/s. Kilburn Reprographics Limited for Rs. 10,762-11 on 3.9.1990. Aggrieved by the dishonouring of the cheque dated 3.9.1990, the 2nd respondent filed O.P. No. 86 of 1991 before the Forum to award a sum of Rs. 30,000 with interest at 18% per annum from the date of plaint till the date of realization or such other sum as compensation for the injury suffered by him due to the negligence of the Indian Bank authorities, and also for costs and other reliefs.
3. On receipt of the complaint, the Forum issued a notice to the Indian Bank fixing the date for enquiry as 29.3.1991 at 10-30 A.M. The petitioners were directed to appear before the Forum either by themselves or through their authorised agents along with evidence, documents, etc., failing which the Forum will proceed to settle the dispute in question on the basis of the evidence produced by the complaint/2nd respondent and on merits.
4. According to the petitioners, the Indian Bank Manager along with their advocate went to the Forum premises on 29.3.1991 and the Forum was found to be locked as that day was declared to be a holiday on account of Good Friday. The next working day was 1.4.1991. The petitioners' counsel by way of abundant caution went to the Forum office at 12-00 Noon on 1.4.1991 to verify the exact date of hearing. He came to know that the petitioners were set ex parte and the complaint was posted for hearing on 4.4.1991 for filing an affidavit of service. Immediately thereafter, the matter was mentioned in the open Court and a request was made to set aside the order setting the petitioners ex parte. Thereafter, again time was granted to the 2nd respondent to file affidavit of service and the matter was adjourned to 4.4.1991. Again, on 4.4.1991, the petitioners' counsel requested the Forum to set aside the order passed on 1.4.1991. However, the matter was adjourned to 8.4.1991 as both parties were not present for the hearing. On 8.4.1991, the petitioners' counsel again pleaded for setting aside the order dated 1.4.1991 and filed a petition for setting aside the order dated 1.4.1991 setting the petitioners ex parte.
5. It is also stated that 1.4.1991 was closing of the financial year since 31.3.1991 happened to be a holiday and the Nationalized Banks did not transact business and all the petitioners were very busy with the closing of accounts for the financial year. Therefore, it is contended, that the absence of the petitioners and their counsel on 1.4.1991 before the Forum was neither willful nor wanton. The petition filed by the petitioners for setting aside the order dated 1.4.1991 was taken up for hearing on 8.4.1991 and the same was returned with the following observations:
"1. There is no provision under the Consumer Protection Act, 1986, to maintain this petition for setting aside the ex parte order in question and also Code of Civil Procedure is not applicable to it.
2. The averments in the petition cannot be looked into for want of power to this forum."
Aggrieved by the aforesaid order of returning the petition -to set aside the ex parte order, the petitioners have approached this Court under Article 227 of the Constitution.
6. It is contended by the learned counsel for the petitioners that the Forum has erred in rejecting the petition for setting aside the ex parte order on the ground that there is no provision under the Consumer Protection Act (hereinafter referred to as the Act) to maintain a petition for setting aside the ex parte order and that the Code of Civil Procedure is not applicable. It is further submitted that the power given under Section 13(2) of the Act read with Section 13(4) of the Act clothes the Forum to set aside the order setting the petitioners ex parte. It is then urged that though there is no specific provision in the Act or in the Tamil Nadu Consumer Protection Rules (hereinafter referred to as the Rules) framed thereunder to set a party ex parte, if such power is implied, then the Forum has incidental and ancillary power to set aside such ex parte order.
7. My attention was drawn to Section 13 of the Act and Rules 8(8) and 8 (9) of the Rules. Section 13 of the Act deals with the procedure to be followed by the Forum on receipt of a complaint. The Forum, on receipt of a complaint sends a copy of the same to the opposite party, who should file his objections within thirty days or maximum period of 45 days. The time bound procedure is to ensure speedy disposal. After the receipt of objections, evidence is taken following the procedure of Courts under the Civil Procedure Code. Every proceedings before the Forum shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Indian Penal Code and the Forum shall be deemed to be a civil court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
8. Rule 8(8) and 8(9) runs as follows:
8(8) If during the proceedings conducted under Section 13, State Commission fixes a date for hearing of the parties, it shall be obligatory on the complainant and opposite party or his authorised agent to appear before the State Commission on such date of hearing or any other date to which hearing could be adjourned. Where the complainant or his authorised agent fails to appear before the State Commission on such day, the State Commission may in its discretion either dismiss the complaint for default or decide it on merits. Where the opposite party or its authorised agent fails to appear on the day of hearing, the State Commission may decide the complaint ex parte.
8(9) While proceedings under sub-rule (8) the State Commission may, on such terms as it may think fit and at any stage, of the proceedings adjourn the hearing of the complaint but not more than one adjournment shall ordinarily be given and the complaint shall be decided within 90 days from the date of notice received by the opposite party where the complaint does not require analysis or testing of the goods and within 150 days if it requires analysis or testing of the goods."
9. When the Consumer Protection Forum has got the power to decide a complaint ex parte under Rule 8(8) and 8(9) of the Rules, it automatically implies that it has got power to set aside an ex parte order. The District Consumer Forum and the State Consumer Forum have got powers to entertain the applications to set aside ex parte orders and decide the same on merits. It is also settled law that when there is error in exercise of jurisdiction, this Court can always come in by exercising the powers under Article 227 of the Constitution. As rightly pointed out by the learned counsel for the petitioners, and fairly conceded by Mr. D.I.J. Rajkumar though there is no express provision in the Act or the Rules framed thereunder giving the Forum jurisdiction to do so, it is well known rule of statutory construction that the Forum should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions for the purpose of rendering justice between the parties.
10. In a case of this nature, I am of the view, that the Forum should be considered as possessed with such ancillary or incidental powers unless there is any indication in the statute to the contrary. I do not find any statutory prohibition in the Act or the Rules made thereunder. In view of the above, I allow the civil revision petition and direct the petitioners to represent the papers, which had already been returned by the Forum, within four weeks from to-day. The Forum is directed to take the petition on file and decide it on merits after affording opportunity to both parties. The Forum is further directed to dispose of the said petition, to be represented by the petitioners, within four weeks thereafter. I make no order as to costs.