Atul Srivastava vs Pradeep Kumar

AGGRIEVED by the order dated 4.2.2011 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, "the State Commission") in first appeal No. 1677 of 2011, the original opposite parties have filed the present petition under Section 21(b) of the Consumer Protection Act, 1986. The appeal before the State Commission was filed against an order dated 14.09.2010 passed by the District Consumer Forum, Sonepat in complaint No. 427 of 2010 by which order, the District Consumer Forum had allowed the complaint ex parte purportedly on the ground that the opposite parties remained unrepresented on record and had no defence. The District Consumer Forum accordingly directed the opposite parties to refund the deposited amount of Rs. 5 lakh with interest @9 per annum w.e.f. the date of deposit till its realisatin besides a compensation of Rs.5,000/- and Rs.2,000/- as the cost of litigation . The State Commission dismissed the appeal and affirmed the order passed by the District Consumer Forum.

THE facts and circumstances which led to the filing of the complaint and passing of the impugned order are amply-noted in the order of the State Commission and need no repetition at our end. We have heard Mr. Pritpal Nijjar, learned counsel representing the petitioners and Mr. Sanjay Singh, learned counsel representing the respondents and have considered their respective submissions. Learned counsel for the petitioners would assail the orders passed by the fora below primarily on the ground that the petitioners herein were not given any opportunity to contest the complaint and put their defence in as much as no notice of the complaint was ever received by them and, therefore, the orders passed by the fora below are legally unsustainable and are liable to be set aside. On the other hand, learned counsel for the respondent-complainant has supported the orders passed by the fora below and has urged that the orders and directions given by the District Consumer Forum, as affirmed by the State Commission, are eminently justified having regard to the entirety of the facts and circumstances of the case.

The main plank of attack of the opposite parties (petitioners) is that no notice of the complaint was received by them and, therefore, they could not put forth their defence by filing written version and the order passed by the District Consumer Forum made an incorrect mention that the opposite parties had refused to receive the notice when it was tendered to them. In order to test the above contention, we thought it proper to call for the record of the complaint from the District Consumer Forum. On going through the same, we are a little surprised about the procedure adopted by the District Consumer Forum in disposing of the complaint in the present case. We say so because the complaint was filed by the respondent on 6.8.2010 before the District Consumer Forum and the District Consumer Forum entertained the same on the same very day. We are happy to note that the District Forum did so but surprisingly enough the District Consumer Forum made the following order of even date in regard to the issue of notices. "Present : S.C. Kuldeep Singh Solanki, Adv. for complainant. Complaint presented today before us. It be registered. Notice of the complaint be issued to the respondents for 31.8.2010 through registered posts. Dasti notice be also given to the complainant if he require."

IT is surprising to note that notices were issued for a date which was only 24 days away from the date of taking cognizance to appear. Despite the said order/direction of the District Consumer Forum, no notice under registered post was issued and purportedly a dasti notice was handed over to the complainant/his counsel for effecting service. All the three counter-foils of the said notice are on record, which bears the endorsement of a certain process server of the District Court, Delhi, who purportedly took notice for service notice upon the opposite parties and thereafter recorded his endorsement that the opposite parties refused to accept the notice. On this endorsement, the process server obtained signature of the complainant as witness. The said report of the process server was attested by the Civil Nazir, Delhi. What were the circumstances in which the District Court, Delhi or the Civil Nazir, Delhi became seized of the notices issued by the District Consumer Forum, Sonepat is not clear to us. The District Consumer Forum, Sonepat had not forwarded notices to the District Court/Civil Nazir of Delhi nor it had the power or jurisdiction to do so for effecting service and it was simply handed over to the complainant for effecting service. This is somewhat very circumstance, which causes serious doubt on the conduct of the complainant in the matter of effecting service of notice. The District Consumer Forum going by the said endorsement had made the following order:- "Present: S. C. Kuldeep Solanki, Advocate for complainant. None for the respondents. Notice of the complaint issued to the respondents by hand received with the refusal report. Cased called several time. None is present on behalf of respondent. Hence respondents proceeded against ex parte. For ex parte arguments to come up on 3.9.2010."

On 3.9.2010, the District Consumer Forum heard the arguments in part and thereafter adjourned the matter to 14.09.2010 on which date after hearing the arguments, the complaint was allowed ex parte.

LEARNED counsel for the petitioners submits that the above procedure adopted by the District Consumer Forum was in flagrant violation of the provisions contained in clause (a) & (b) of Section 13(2) of the Act, which provides as under:- "13. Procedure on admission of complaint:- (1) XXX (2) The District Forum shall, if the complaint admitted by it under Section 12 relates to goods in respect of which the procedure specified in sub-section (1) cannot be followed, or if the complaint relates to any services. (a) Refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of 30 days or such extended period not exceeding fifteen days as may be granted by the District Forum: (b) Where the opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer disputes:- (a) On the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint, or (b) ex parte on the basis of evidence brought to its notice where the opposite party omits or fails to take any action to represent his case within the time given by the Forum; (c) XXX"

There appears to be force in the contention of the petitioners because in the case in hand, neither a copy of the complaint was endorsed to the opposite parties alongwith the notice because no such copy of the complaint is available with the notice nor 30 days" time was granted to the opposite parties for filing their written version as the notice was issued for a shorter period of 24 days duration. This coupled with the circumstance noted above that the services of the Civil Nazir of the District Court, Delhi were utilized for effecting service of notice. In this case, conduct of the District Consumer Forum becomes suspect of certain mala fides. One may defend such an action on the premises that the District Consumer Forum wanted to decide the complaint expeditiously and with utmost dispatch but we must reject such a plea because it is well known "justice hurried is justice buried" and justice shall not only be done, it must seem to have been done. In any case, the District Consumer Forum had absolutely jurisdiction to by-pass the procedure laid down under the Act. The petitioners have filed sworn affidavit saying that neither any notice was ever presented to them or their functionaries nor it was refused by them. Given the facts and circumstances of the case as noted above, we must believe the version of the petitioners. We, therefore hold that the petitioners had not refused to accept the notice issued by the District Consumer Forum and the said endorsement must have been manipulated by the complainant through the auspicies of the Civil Nazir, Delhi, which had absolutely no jurisdiction in the matter. In our view, the proceedings before the District Forum and the order allowing the complaint has resulted into miscarriage of justice besides it being in violation of the principles of natural justice. The petitioners have been prejudiced as they were deprived of their valuable rights of defending the complainant. In our view, the order passed by the District Consumer Forum and the order passed by the State Commission affirming the same are illegally unsustainable and are liable to be set aside.

FOR the above said reasons, we allow the present petition and set aside the orders passed by fora below and remand back the complaint to the District Consumer FORum, Sonepat for deciding the complaint afresh after taking on record the written version, which may be filed by the petitioners. The parties are directed to appear before this District Consumer FORum on 14.09.2011 on which date, the petitioners shall file their written version to the complaint and thereafter the complaint shall be tried and decided strictly in accordance with the provisions of the Consumer Protection Act, 1986. Let a copy of this order be forwarded to the President of State Commission, Haryana and to the Principal District and Sessions Judge, Delhi for their information and such action as may be deemed necessary.