BURLINGTONS' HOME SHOPPING PVT. LTD. vs Balbir Kaur

THIS is an appeal filed by the appellant against the order dated December 11, 1993 of the District Forum, Gurdaspur in Complaint Case No. 309 of 1993. By this order, the District Forum directed the appellant and its agent - Burlingtons'' Home Shopping Pvt. Ltd. c/o Gill Kreations, 1, Gill Avenue, Dhangu Road, Pathankot to refund the amount of Rs. 9500/- to the complainants-respondent alongwith interest @ 12% p.a. from the date of passing the order and to pay them Rs. 2,000/- towards costs.

IN the complaint preferred by the respondents, it was averred that they had pur- chased 100 catalogues for Rs. 9500/- from the appellant for the service of home delivery of merchandise as detailed in the catalogue and placed orders through the agent aforementioned for various items as mentioned in para 4 of the complaint. The grievance of the respondents was that the appellant had not supplied the articles despite repeated requests. They claimed refund of Rs. 9500/- besides Rs. 70,000/- as damages. On merits, the appellant''s agent - Burlington''s Home Shopping Pvt. Ltd, Pathankot whilst admitting the respondents'' claim pleaded that due to some technical problems, the articles could not be sent to them by the appellant. The District Forum passed a decree against the appellant and its agent for the recovery of the amount and interest as mentioned above. The appellant has come in appeal against that order before the Commission. The learned Counsel for the appellant has primarily contended that the District Forum had proceeded against the appellant ex-parte though no service was effected on it. According to the learned Counsel, the District Forum could not decide the matter without notice to the appellant and giving an opportunity to file reply and lead evidence. The learned Counsel for the respondents has nothing to repell this argument of the appellant.

We have duly considered the argument on behalf of the appellant and find substance therein. We have seen the record and find that the appellant''s agent Burlington''s Home Shopping Pvt. Ltd. Pathankot was served with a notice but no notice was served upon the appellant. It is well settled that unless the opposite-party is served, no decree can be passed against it. It was the duty of the District Forum to have served the appellant before decree was passed against it. If it could not be served under registered cover, it should have been served in some other recognised way but it has not been done. The ex-parte order of the District Forum against the appellant is, therefore, liable to be set aside.

BEFORE parting with the order, it may be mentioned that the appellant had filed an application for condonation of delay in filing the appeal. After going through the application and hearing the parties, we are of the opinion that there are good and sufficient grounds for condoning the delay in filing the appeal. Consequently, we allow the application and condone the delay. For the foregoing reasons, we accept the appeal and remand the case to the District Forum for deciding the matter afresh after giving the appellant an opportunity to file written statement and to lead evidence. The District Forum is however directed to decide the case expeditiously. Appeal allowed.