AKASH DEEP SINGLA vs Rajiv Kumar

BY means of this Miscellaneous Application No. 2 of 2000, the applicant/respondent No. 3 seeks the setting aside of order dated 23.2.2000 passed in revision petition by this Commission. The order which is sought to be set aside was passed ex-parte against the applicant/respondent No. 3. The contention of the applicant/respondent No. 3 is that the said order was passed without issuance of notice to him. The applicant came to know about the filing of the revision petition and the impugned order dated 23.2.2000 passed by this Commission only on 20.6.2000 when his Counsel inspected the file of the case. It has been averred that though the applicant was impleaded as respondent No. 3 in the revision petition but he was neither served with the summons nor he was heard by the Commission before the impugned order was passed on 23.2.2000. The applicant has been held partly liable for the amount which is involved in the execution application before the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter referred to as the District Forum-II). It has also been submitted that it is well-settled law that nobody should be condemned unheard.

THE notice of this petition was issued to the petitioner of the Revision Petition No. 3 of 1999 as well as to the respondent Nos. 1 and 2. THE execution of the order dated 23.2.2000 was also stayed qua the present applicant/respondent No. 3 Shri Vivek Garg. Mr. Harish Single representing respondent No. 2 M/s. P.H. Information System (P) Ltd., 404 Motor Market, Manimajra, U.T., Chandigarh as its Director put in appearance and moved an application on 13.9.2000 praying that the respondent No. 2 be discharged from its liability. The respondent No. 1 - Shri Rajiv Kumar put in his appearance in person and Mr. P.S. Sama, Advocate appeared for respondent No. 3 - The Computer Point Ltd., SCO No. 41, Sector 7C, Madhya Marg, Chandigarh but none appeared for the petitioner of Revision Petition No. 3 of 1999 Shri Akash Deep Singla.

We have heard the learned Counsel for the applicant/respondent No. 3 as well as Mr.Rajiv Kumar and Mr. Harish Singla appearing for respondent-M/s. P.H. Information System (P) Ltd. We have carefully perused the record of the case and have carefully gone through the order dated 23.2.2000. A perusal of the order dated 23.2.2000 which is sought to be recalled and set aside in this application moved by The Computer Point Ltd., SCO No. 41, Sector 7C, Madhya Marg, Chandigarh through its Manager Mr. Vivek Garg, will go to show that it was passed on merit and is a reasoned order which is said to be an ex-parte against the applicant/respondent No. 3 - The Computer Point Ltd. The Commission after narrating the facts leading to the moving of the revision petition by Mr. Akash Deep Singla proceeded to consider the submissions raised before it and observed as under : "The aforesaid Akash Deep Singla has come forward in the present revision and inter alia his important plea is that neither he was impleaded in the Complaint No. 714 of 1994 nor in Appeal No. 141 of 1997 which was decided by this Commission on 25.9.1999 and thus execution proceedings cannot be taken against him. The allegations made in the complaint were that the respondent Nos. 1 and 2 enumerated therein, were in the form of a Private Limited Company. It has been brought to our notice here by the learned Counsel for the revisionist that it was not a partnership concern and Sections 18 and 19 of the Indian Partnership Act, 1932 would not be attracted. After considering all these facts, we hold that the complainant cannot proceed against Akash Deep Singla s/o Tarsem Chand Singla who was not a party in the complaint or in the appeal. The conclusion is that in the interest of justice, the revision succeeds and the impugned order dated 10.2.1999 proceeding against Akash Deep Singla is hereby set aside."

AT the very outset, it may be mentioned that it is now well-settled that the Consumer Disputes Redressal Agencies i.e. the District Forum, State Commission, and the National Commission, do not possess any powers under the Consumer Protection Act, 1986 (for short hereinafter referred to as the Act) to recall, review and set aside an ex-parte reasoned order passed on merit. This matter came up for consideration before the Hon''ble Supreme Court in the case of Jyotsana Arvindkumar Shah & Ors. v. Bombay Hospital Trust, reported in III (1999) CPJ 1 (SC)=VII (1999) SLT 146=1999 (1) CPC 595. The Hon''ble Supreme Court was considering a common order dated 30.7.1997 of the Consumer Disputes Redressal Commission, Maharashtra State, Mumbai passed in Misc. Application No. 15 of 1996 and Misc. Application No. 31 of 1996 (Execution) in Complaint No. 20 of 1992, which was affirmed by the National Consumer Disputes Redressal Commission, New Delhi by declining to entertain the Revision Petition Nos. 670 and 671 of 1997 filed before it. It was noticed by the Hon''ble Apex Court that the State Commission of Maharashtra had proceeded ex-parte in the complaint case and passed a reasoned order on merit awarding compensation of Rs. 7 lacs with interest @ 12% per annum from 27.1.1992 to the appellants. The respondent in that case instead of preferring an appeal chose to file a writ petition before the Bombay High Court challenging the validity of the Consumer Protection Act, 1986. The High Court ultimately dismissed the writ petition on 19.12.1995 with an observation that the respondent could approach the Appellate Authority or to make a proper application before the State Commission for setting aside an ex-parte order, if permissible under law. The respondent then approached the State Commission of Maharashtra and moved Miscellaneous Application No. 15 of 1996 for setting aside the ex-parte order dated 10.6.1992. The appellants had also in the meantime moved a Miscellaneous Application No. 31 of 1996 for execution and compliance of the order of the State Commission. These two miscellaneous applications came up for hearing before the State Commission of Maharashtra which allowed the miscellaneous applications and set aside the ex-parte order dated 10.6.1992. The other miscellaneous case was also disposed of by the Commission vide order dated 10.6.1992. Commission did not intervene in the matter and dismissed the revision application. This led to the filing of the Civil Appeal Nos. 314 and 315 of 1999 before the Hon''ble Supreme Court. The Hon''ble Supreme Court considered the jurisdiction of the Consumer Disputes Redressal Agencies functioning under the C.P. Act to set aside an ex-parte reasoned order passed on merit and held in paras 6 and 7 as under : "6. It is under these circumstances, the present appeals came to be filed. We heard learned Counsels on both sides for quite some time. When we asked the learned Counsel appearing for the respondent to point out the provision in the Act, which enables the State Commission to set aside the reasoned order passed, though ex-parte, he could not lay his hands on any of the provisions in the Act. As a matter of fact, before the State Commission the appellants brought to its notice the two orders, one passed by the Bihar State Commission in Chief Manager, U.C.O. Bank v. Ram Govind Agarwal, 1996 (1) CPR 351 : 1996 (2) CPC 284, and the order passed by the National Commissioner in Director, Forest Research Institute v. M/s. Sunshine Enterprises & Anr., 1997 (1) CPR 42 : 1997 (1) CPC 438 NC, holding that the redressal agencies have no power to recall or review its ex-parte order. The State Commission had distinguished the above said orders on the ground that in those two cases the opponents had not only not appeared but also failed to put in their written statements. In other words, in the case on hand according to State Commission the opponent (respondent) having filed the written statements, the failure to consider the same by the State Commission before passing the order would be a valid ground for setting aside the ex-parte reasoned order. It is also seen from the order of the State Commission that it was influenced by the concluding portion of the judgment of the Bombay High Court to the effect that the respondent (writ petitioner) could approach the Appellate Authority or to make an appropriate application before the State Commission for setting aside the ex-parte order, if permissible under the law. Here again, the State Commission failed to appreciate that the observation of the High Court would help the respondent, the application for setting aside the ex-parte order, which appears to be the position, the order of the State Commission setting aside the ex-parte order cannot be sustained. As stated earlier, there is no dispute that there is no provision in the Act enabling the State Commission to set aside an ex-parte order. The National Commission, as noticed earlier, dismissed the revisions in limine without going into the merits.

AS it is clear from the above discussion that the order of the State Commission setting aside the ex-parte order was one without jurisdiction, we cannot sustain the same. Accordingly, the order dated 10.6.1992 of the State Commission as confirmed by the National Commission is set aside and Misc. Application No. 15 of 1996 stands dismissed. Misc. Application No. 31 of 1996 is restored to the file of the Consumer Disputes Redressal Commission, Maharashtra State, Mumbai, for disposal in accordance with law. The appeals are allowed accordingly with no order as to costs." 7. This authority was later on noticed by the Hon''ble National Consumer Disputes Redressal Commission, New Delhi in the case of M/s. Scooter India Ltd. v. Mr. Pradeep Kumar, reported in III (1999) CPJ 77 (NC)=2000 (1) CPC 266, which was a Miscellaneous Petition No. 415 of 1999 moved in Appeal No. 430 of 1992. The case was decided by the Hon''ble National Commission on 26.10.1999. In para 2 of the judgment at page 267, the Hon''ble National Commission referred to the decision of the Hon''ble Apex Court reported in Indian Bank v. Satyam Fibres (India) Pvt. Ltd., 1996 (5) SCC pages 550 to 558. It may be mentioned that this authority has been mainly relied upon by the learned Counsel for the applicant/respondent No. 3. The Hon''ble National Commission dealt with this authority in the light of the judgment of the Hon''ble Supreme Court

in Jyotsana Arvind Kumar (supra) and held as under : "2. On behalf of the appellant it has been contended that the Court has inherent power to recall its order in the interest of justice. Our attention has been drawn to a case reported in Indian Bank v. Satyam Fibres (India) Pvt. Ltd., 1996 (5) SCC pages 550 to 558. But the difficulty in accepting this contention of of the petition is two-fold. First, there is a later judgment of the Supreme Court in Jyotsana Arvindkumar Shah & Ors. v. Bombay Hospital Trust, Civil Appeal Nos. 314-315, decided on 22.1.1999 [1999 (1) CPC 595 SC] in which the Supreme Court has taken the view that the State Commission cannot recall an order passed by it ex-parte because the Consumer Protection Act has not specifically conferred this power on the Commission."

The Hon''ble National Commission further held in para 4 of the judgment at page 267 as under : "4. The Consumer Protection Act has also not specifically conferred any power to recall an ex-parte order upon the National Commission. Nor any power of review has been given to the National Commission. Therefore, this application which is in effect for review of the order passed on 22.4.1996 cannot be entertained."

The learned Counsel for the applicant/respondent No. 3 Mr. Vivek Garg argued that the law laid down by the Hon''ble Supreme Court in the case of Jyotsana Arvindkumar (supra), is clearly distinguishable inasmuch as the Hon''ble Apex Court has not considered the effect, fraud and misrepresentation committed by a party on the Consumer Disputes Redressal Agencies in obtaining a particular order. We find that the Hon''ble Apex Court has in the subsequent decision rendered in the case of Arvind Kumar (supra), held that under the provisions of C.P. Act, there is no power with the Consumer Disputes Redressal Agencies i.e. District Forum, State Commission, and National Commission, as the case may be, to recall, review and set aside an ex-parte reasoned order passed on merit. The Hon''ble Apex Court has not limited the application of this law to any given situation. In other words, the Hon''ble Apex Court has clearly held that the Consumer Disputes Redressal Agencies have no power under the C.P. Act to review, recall and set aside an ex-parte reasoned order passed on merit. It may be pointed out that the law laid down by the Hon''ble Supreme Court in the case of Jyotsana Arvindkumar Shah (supra), has been relied on subsequently by the Hon''ble National Commission in the case of M/s. Scooter India Ltd. (supra). In these circumstances, this Commission cannot examine the impugned order in the light of any averments made by the applicant regarding the impugned order having been obtained allegedly by practising fraud and misrepresentation on this Commission. Since it is settled law now that this Commission cannot review, recall and set aside an ex-parte reasoned order passed on merits, this Commission will not enter into the aspect of the impugned order having been obtained by practising fraud and misrepresentation on this Commission. Resultantly, we find that this application illegally not maintainable and the same is dismissed. The copies of the order be supplied to the parties free of charges. Application dismissed.