State Consumer Disputes Redressal Commission
S.N. Sugricare And Health Care Science ... vs Nikhil Mahajan on 31 December, 2025
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA.
First Appeal No.: 75/2025
Date of Presentation: 25.03.2025
Order reserved on: 15.12.2025
Date of Decision: 31.12.2025
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S.N. Surgicare and Health Care Science Pvt. Ltd.,
Through its Director Sukhendu Nag Jalsukha,
Post Office Nilgunj Bazar, P.S. Barasat District 24 (N)
Kolkata -700121.
.......... Appellant/Opposite Party
Versus
1. Nikhil Mahajan (Director),
S/o Late Sh. Ramesh Chander,
H. No. B16/30 Sunder Nagar, Dhangu Road,
Pathankot, Punjab-145001.
2. Chetan Verma (Director),
S/o Sh. Ravi Bhushan Verma,
S8/4901 Friends Colony Street, Dhangu Road,
Pathankot, Punjab-145001.
Both Directors Himachal Surgical & Allied Products
Pvt. Ltd., Plot No. 52-53, Industrial Area, Kandrori,
District Kangra, H.P.
........Respondents/Complainants
...........................................................................
Coram
Hon'ble Justice Inder Singh Mehta, President
Hon'ble Ms. Yogita Dutta, Member
Whether approved for reporting?1 Yes.
For Appellant: Mr. M.D. Faruk Khan, Advocate, and
Mr. Subrata Roy, Advocate.
Mr. Sukhendu Nag (Though VC).
For Respondents: Mr. Rajesh Prakash, Advocate vice
Mr. Sunny Modgil, Advocate.
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Whether Reporters of the local papers may be allowed to see the order?
S.N. Surgicare and Health Care Science Pvt. Ltd. Vs. Nikhil Mahajan &
Anr. (F.A.No.75/2025)
Justice Inder Singh Mehta, President
O R D E R:
Instant appeal is arising out of the order dated 11.09.2023 of learned District Consumer Commission, Kangra at Dharamshala, passed in Consumer Complaint No. 173/2023, titled Nikhil Mahajan & Anr. Versus S.N. Surgical and Health Care Service Pvt. Ltd., whereby the complaint was allowed and opposite party was directed to pay Rs.26,59,100/- and Rs.6,18,163/- to the complainants alongwith interest @ 9% per annum from the date of complaint till its realization. The opposite party was also directed to pay Rs.3,00,000/- as compensation and Rs.20,000/- as litigation costs.
Brief facts of Case:
2. Briefly, the case of the complainants is that complainants had planned to open business of manufacturing of Absorbent Cotton Wool and related products. The complainants accordingly under the 2 S.N. Surgicare and Health Care Science Pvt. Ltd. Vs. Nikhil Mahajan & Anr. (F.A.No.75/2025) unemployment scheme floated by H.P. Government applied for industrial land in Kandrori Industrial Area, District Kangra, H.P. and the land was allotted to the complainants on payment of lease amount of Rs.8,33,080/-. The complainants thereafter also executed an agreement with the opposite party on 09.06.2022, for purchase of machinery and said machinery was to be delivered by the opposite party within 90 days from the date of contract with advance payment and all subsequent payments as per the agreement. The complainants as per agreement made payment of Rs.5,00,000/- as advance booking amount and thereafter also paid Rs.35,00,000/- through RTGS on 15.07.2022 to the opposite party/company. Despite paying more than 50% amount, the opposite party failed to supply the Carding Machine, Aero Feed Machine, Carding and Dry Ducting and Cutting Machine within 90 days from the date of agreement. The complainants sent 3 S.N. Surgicare and Health Care Science Pvt. Ltd. Vs. Nikhil Mahajan & Anr. (F.A.No.75/2025) many requests to the opposite party to supply the machine, but in vain. The complainants could not open the factory due to non-supplying of above machines and had to suffer huge losses. The complainants also sent legal notice to the opposite party but opposite party failed to reply the notice. The complainants have filed the complaint before District Commission by alleging deficiency in service and unfair trade practice on the part of the opposite party.
3. The opposite party was proceeded ex-parte vide order dated 03.08.2023. The complainants thereafter led evidence in support of their pleadings.
4. After hearing the learned counsel for the complainant, Ld. District Commission allowed the complaint of the complainants.
5. Feeling aggrieved by the order of learned District Commission, the appellant-opposite party has preferred the instant appeal before this Commission. 4
S.N. Surgicare and Health Care Science Pvt. Ltd. Vs. Nikhil Mahajan & Anr. (F.A.No.75/2025)
6. We have heard learned counsel for the parties and have also gone through the entire record carefully including written submissions filed by the parties.
7. Learned counsel for the appellant/opposite party has submitted that agreement Annexure C-1 was never executed between the parties because it was mere a draft copy. He has submitted that there is no signature of Nikhil Mahajan and Chetan Verma (Directors) on the alleged agreement, therefore, the question of breach of agreement, in question, does not arise. He has further submitted that the complainants have deliberately concealed the proforma invoice and intentionally based their case on the draft copy of agreement and hence, concealed major facts from this Commission. The opposite party was proceeded ex-parte without following the due process of law for the purpose of making effective service. The procedure adopted by the 5 S.N. Surgicare and Health Care Science Pvt. Ltd. Vs. Nikhil Mahajan & Anr. (F.A.No.75/2025) agencies/post office for the service of the appellant/opposite party before District Commission is not recognized in the eyes of law and the mode/manner of service is not a valid service, hence, the order proceeding the opposite party/appellant ex-parte and subsequent final order passed, are required to be set aside. He has submitted that impugned order is bad in law and appeal be allowed.
8. On the other hand, learned counsel for the respondents/complainants has submitted that opposite party/appellant has failed to supply the machinery to the complainants, which resulted in financial loss and the District Commission rightly allowed the complaint. He has further submitted that opposite party chose not to appear and contest the complaint and now is trying to make out a case at appellate stage, which is not permissible. He has further submitted that the impugned 6 S.N. Surgicare and Health Care Science Pvt. Ltd. Vs. Nikhil Mahajan & Anr. (F.A.No.75/2025) order does not require any interference and prays that appeal be dismissed.
FINDINGS
9. The first and foremost ground raised by the appellant/opposite party is that the service of notice upon the opposite party was not validly effected in the manner prescribed under law, therefore, the order of District Commission whereby the opposite party was proceeded ex-parte is bad in law and accordingly, the ex-parte order and final order are liable to be set aside. .
10. Admittedly, the appellant/opposite party was proceeded ex-parte by the District Commission in consumer complaint vide order dated 03.08.2023, which is reproduced below:-
03.08.2023 Present: Mr. Rajat Diwan, Advocate for complainant.
RAD returned back with remarks unclaimed. We have also procured the postal track report. As per this report, on 05.07.2023 item was kept on hold addressee absent intimation 7 S.N. Surgicare and Health Care Science Pvt. Ltd. Vs. Nikhil Mahajan & Anr. (F.A.No.75/2025) served. Thereafter on 11.07.2023 item returned unclaimed. Meaning thereby opposite party is duly served. No one is appearing on behalf of the opposite party.
Case called time and again. It seems that opposite party is not interested in contesting this complaint. Case be taken after lunch.
Taken up after lunch (2.35 PM) Present: As above.
Case called again. None appeared on behalf of the opposite party. Cause list stands exhausted. Hence, opposite party is proceeded against ex- parte. Now, to come up for adducing complainant's evidence on 16.08.2023.
11. The perusal of record as well as order dated 03.08.2023 clearly shows that the opposite party was proceeded ex-parte by the District Commission solely on the basis of track report/postal endorsement "addressee absent-intimation given-returned unclaimed".
12. Law on the subject is well settled that unclaimed by itself does not automatically amount to deemed service, unless there is cogent material to show that the addressee deliberately avoided service. 8 S.N. Surgicare and Health Care Science Pvt. Ltd. Vs. Nikhil Mahajan & Anr. (F.A.No.75/2025)
13. Perusal of order dated 03.08.2023 clearly indicates that the District Commission has failed to record any specific finding that the opposite party had intentionally avoided service. The District Commission has also failed to examine the postman's report in proper perspective and the registered notice received back unclaimed does not clearly disclose that who had given the intimation to the opposite party. There is also no affidavit/proof on record to show that the intimation actually reached the opposite party. Mere absence from premises or non-collection of article cannot automatically be equated with refusal or intentional evasion. Hence, the sole reliance upon the track report/postal endorsement, is procedurally unsafe and insufficient to conclude due service of notice upon the opposite party.
14. In these circumstances, we are of the considered view that in the absence of any substantial proof regarding the fact that intimation actually reached 9 S.N. Surgicare and Health Care Science Pvt. Ltd. Vs. Nikhil Mahajan & Anr. (F.A.No.75/2025) the opposite party or in the absence of any finding that the opposite party had intentionally avoided service, the track report/postal endorsement 'addressee absent- intimation given-returned unclaimed', does not constitute valid and effective service upon the opposite party. Hence, the District Commission committed a material procedural irregularity in proceeding ex-parte against the opposite party.
15. The participation of opposite party at execution stage does not validate the ex-parte adjudication. It is settled position of law that an order passed in violation of Principles of natural justice cannot be validated by subsequent proceedings.
16. Since the foundation of the ex-parte proceedings is found to be defective, the ex-parte order and the final order passed pursuant thereto, cannot be sustained.
10 S.N. Surgicare and Health Care Science Pvt. Ltd. Vs. Nikhil Mahajan & Anr. (F.A.No.75/2025)
17. Consequently, appeal is allowed. The ex- parte order dated 03.08.2023 and final order dated 11.09.2023 passed by District Commission in Consumer Complaint No.173/2023 are set aside. The case is remanded to the District Commission for fresh adjudication.
18. The opposite party/appellant shall file its written version/reply alongwith all supporting documents, within 30 days from the date of first appearance before the District Commission.
19. The complainants shall be at liberty to file their rejoinder, if so advised, within 15 days thereafter.
20. The District Commission shall thereafter proceed to decide the complaint expeditiously, in accordance with law, after affording reasonable opportunity of hearing to both the parties.
21. The parties are directed to appear before the District Commission below on 18.02.2026. 11 S.N. Surgicare and Health Care Science Pvt. Ltd. Vs. Nikhil Mahajan & Anr. (F.A.No.75/2025)
22. No orders as to costs.
23. Certified copy of order be transmitted to parties and their counsel free of costs strictly as per rules. File of learned District Commission below alongwith certified copy of order be sent to learned District Commission for compliance and file of State Commission be consigned to record room after due completion forthwith. The appeal is disposed of. Pending application(s) if any also disposed of.
Justice Inder Singh Mehta
President
Yogita Dutta
*GUPTA* Member
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