AMBASSY DRY CLEANERS And FINISHERS vs MANIK CHAND AGARWAL

THIS appeal under Section 15 of the Consumer Protection Act, 1986 ("the Act" herein) was filed by the opposite party-appellant against the orders dated 26.3.91,30.1.92 and 17.2.92. The appeal was filed on 10.3.92. The District Forum by its order dated 26.3.91 passed in Complaint Case No. 1049/90 directed the opposite party-appellant to pay Rs. 500/-as compensation to the complainant-respondent within one month from the date of the order failing which the opposite party would be liable to pay interest on the aforesaid amount @18%p.a.Rs. 500/- consisting of the cost of the coat, stitching charges deprivation from the use of the coat, expenses of the complaint etc. The opposite party failed to comply with the order. No appeal was filed within the prescribed period under Section 15 of the Act and as such order dated 26.3.91 has become final. Subsequently, the District Forum vide Case No. 756/91 which pertains to the application under Section 27 of the Act, imposed a fine of Rs. 5,000/- on Niranjan Panjwani, Prop, of the opposite party-appellant M/s. Ambassy Dry Cleaners and Finishers, for disobedience of the order dated 26.3.91. It further ordered that in order to realise the amount of fine, warrant of attachment may be sent to the concerned Police Station. An application was submitted by the opposite party-appellant for recalling the order dated 30.1.92 which was passed in its absence and after affording an opportunity of hearing to him, a fresh order on merits on the application under Section 27 may be passed. The District Forum dismissed the application by its order dated 17.2.92 holding that the order dated 30.1.92 cannot be said to have been passed in the absence, for, on 6.12.91 Counsel for opposite party was present and thereafter on subsequent five dates nobody appeared. In these circumstances it cannot be said that an expire order, in the absence of the opposite party has been passed. Apart from that the District Forum was of the opinion that the ex-parte order dated 30.1.92 cannot be reviewed. Therefore, the application dated 17.2.92, for recalling the order dated 30.1.92 was dismissed. Against the aforesaid three orders dated 26.3.91,30.1.92 and 17.2.92, this appeal has been filed. The order dated 26.3.91 passed in Complaint Case No. 1049/90 awarding Rs. 500/- to the complainant has become final and it cannot be agitated in this appeal as no appeal was filed within the prescribed limitation. No exception could be taken to the order dated 17.2.92 for no review lay under the Act against the order dated 30.1.92 and the application for reviewing the order was rightly dismissed. Against the order dated 30.1.92 imposing a fine of Rs. 5000/- on the opposite party-appellant, it may be stated that the appeal is not maintainable against that order which was passed under Section 27 of the Act, as held RLT 92 Part III Page 161. However in the case of non-maintainability of the appeal the proceedings of the appeal can be treated as a revision under Section 17(b) of the Act and if the conditions mentioned in Section 17(b) are satisfied, the order can be revised by the State Commission. The District Forum has imposed a fine of Rs.5000/- under Section 27 of the Act upon the opposite party-appellant. A specific ground has been taken in the memo of appeal that the imposition of fine is against the provisions of the Act and, therefore, the order dated 30.1.92 should be set aside. The District Forum has passed the order on 26.3.91 awarding Rs. 500/- as compensation to the complainant-respondent directing payment within one month from the date of the order and in case of non-payment of the amount within the aforesaid period interest @ 18% p.a. was awarded. The order was not complied with.

NOTICE was issued to the opposite party-appellant. As nobody appeared despite service, District Forum ordered to proceed ex-parte against the appellant vide order sheet dated 23.9.91 and the case was posted for ex-parte arguments on 23.10.91. On 23.10.91 learned Counsel for the opposite party appeared. On 14.11.91 and 25.11.91 learned Counsel for the opposite party had appeared and time was sought for filing reply. But no reply was filed. On 6.12.91 Counsel for the opposite party-appellant was present. As no reply was filed, the case was posted for arguments on 3.1.92. Ultimately the order was passed on 30.1.92. The District Forum has recorded in its order that the reply of the opposite party has not been filed stating the reason for not complying with the order and it has been disobeyed deliberately. It took note of the fact that 8 months have passed since the passing of the order and thus in the facts and circumstances of the case it will be reasonable to impose a fine of Rs. 5,000/- on the opposite party-appellant. The question is whether as stated in the memo of appeal the order is proper or not. In other words whether in the facts and circumstances of the case the imposition of fine of Rs. 5,000/- on the opposite party-appellant is proper or not. It may be recalled that by order dated 26.3.91 the opposite party-appellant was directed to pay Rs. 500/- as compensation within one month from the date of the order failing which the opposite party was required to pay interest @ 18% p.a. Admittedly the order was not complied with. There was a failure on the part of the opposite party-appellant to comply with the order of the District Forum, Jaipur. It is true that it is not the case of the opposite party-appellant that the District Forum exercised its jurisdiction not vested by it by law or failed to exercise its jurisdiction so vested. The question before us is whether it has exercised its jurisdiction illegally or with material irregularity so as to warrant interference. The question is whether the imposition of fine of Rs. 5,000/- in the facts and circumstaces of the case is just and proper or the District Forum has arbitrarily imposed the fine. At the risk of repetition it may be stated that by the order dated 26.3.91 Rs. 500/- were ordered to be paid to the complainant by the opposite party-appellant within one month from the date of the order failing which interest @ 18% p.a. was awarded. In the facts of the case, we have no hesitation to say that the District Forum has exercised its power arbitrarily and we are of opinion that the order under appeal (revision) should modified.

From the foregoing discussion it follows that no appeal lies against the order dated 26.3.91 and that order has become final. No valid exception can be taken to the order dated 17.2.92 by which the application for reviewing the order dated 30.1.92 was dismissed. Though appeal against the order dated 30.1.92 is not competent but as the appeal was filed on 10.3.92 this can be treated as a revision under Section 17(b) of the Act.

THE appeal which has been treated as a revision is partly allowed and the order dated 30.1.92 passed in Complaint Case No. 756/91 is modified. THE penalty of fine of Rs. 5000/- imposed/ on the opposite party-appellant is modified and instead a fine of Rs. 2000/- for the disobedience of the order dated 26.3.91 is imposed. An undertaking was given by the Proprietor of M/s. Ambassy Dry Cleaners before the District Forum, Jaipur in pursuance of the order passed by the State Commission on 11.3.92 that in case the appeal is dismissed he undertakes to deposit the fine of Rs. 5000/-. In view of the undertaking which was furnished to the District Forum on 12.3.92, the opposite party-appellant is directed to deposit the fine of Rs. 2000/- with the District Forum, Jaipur. The appeal/revision is partly allowed and the order dated 30.1.92 is modified as indicated above. As the parties did not appear on 14.7.92, there will be no order as to costs. Revision partly allowed.