Cox and Kings(I) Pvt.Ltd. vs Jagadambika T.G.

M/s Cox & Kings India Pvt. Ltd. (hereinafter referred to as the Petitioner) has filed this revision petition challenging the order of the State Commission which had upheld the order of the District Forum in favour of Jagadambika T.G. (hereinafter referred to as the Respondent).

THE Respondent who was the original complainant before the District Forum has stated that she and her sister planned a tour to the U.S.A. and decided to avail of the services of the Petitioner which is a private limited company engaged in the business of arranging tours and related activities. Petitioner/Company agreed to organize the tour for Respondent and her sister for Rs.1,97,000/- per person which totalled to Rs.3,94,000/- exclusive of other expenses and which was paid by the Respondent. Petitioner/Company also assured the Respondent that the interview for tourist visa to USA at the American Consulate at Chennai would be arranged for both of them on the same date and that their visas would get approved. However, not only did the interview take place on different dates but Respondents sister was declined a tourist visa by the American Consulate while she was granted one. Respondent, therefore, approached the Petitioner stating that since she is unable to travel to USA without her sister, the Petitioner may either arrange a tour for them to some other foreign country or refund the entire amount of Rs.3,94,000/- paid by the Respondent. Petitioner, however, did not agree to this request and it was with a great deal of difficulty and persuasion that it finally paid Rs.2,62,000/- withholding the remaining amount. Respondent accepted the said amount under protest and issued a legal notice dated 29.06.2006 requesting the refund of its remaining amounts to which also through its detailed reply dated 31.07.2006 the Petitioner did not agree to on various counts. Since the actions of the Petitioner/Company in not refunding the entire money amounted to unfair trade practice and deficiency in service, Respondent filed a complaint before the District Forum requesting that the Petitioners be directed to refund Rs.1,32,000/- not paid by them along with interest @ 18% from 26.05.2006 till realization, Rs.50,000/- towards mental agony and emotional sufferings and Rs.25,000/- towards compensation.

The District Forum decided the case ex parte because despite service of notice the Petitioner remained absent and thus failed to contest the case. The District Forum observed that deduction of Rs.10,000/- towards service charges in respect of both Respondent and her sister was justified since the Petitioner had rendered some service to the Respondent. The District Forum, therefore, allowed the complaint in part and directed the Petitioner to refund Rs.1,12,000/- to the complainant with interest at the rate of Rs.10% per annum from June, 2006 till the date of payment and Rs.1,000/- as costs within 8 weeks from the date of communication.

AGGRIEVED by this order, Petitioner filed a Miscellaneous Application (M.A.) under Order 9 Rule 13 of the C.P.C. by stating that Petitioner could not attend the proceedings of the District Forum because the notice which was delivered on 08.09.2006 at the Branch Office of the Petitioner/Company was never in fact seen by its concerned authorities at its registered office to enable them to contest the case before the District Forum. Also that the notice issued to the Branch Office of the Petitioner/Company does not amount to proper service because as per Section 51 of the Companies Act, 1956, all notices issued to Companies registered under the said Act are required to be served at the registered office of the Company which in the case of the Petitioner is at Turner Morrison Building, No.16, Bank Street, Fort, Mumbai 400 023 and not at its branch office at Bangalore. This issue stands settled by the judgment of the Honble High Court of Calcutta in Harendra Nath Ghosal Vs. Superfoam Pvt. Ltd. (1992) 74 Com.Cas 740(Cal). Further the address of the registered office of the Petitioner/Company was mentioned in all the correspondence of the Petitioner with the Respondent and she was thus well aware of the registered address. Petitioner, therefore, requested that in the interests of justice the District Forum may recall its order and permit the Petitioner/Company to contest the case on merits. The District Forum dismissed the M.A. on the grounds that in the absence of any specific provision in the Consumer Protection Act, it has no jurisdiction to entertain a case under Order 9 Rule 13 of C.P.C. and therefore, the MA is not maintainable. This matter had also come up before the Honble Supreme Court in (2000) 3 SCC 242 wherein the Supreme Court had held that the State Commission fell into an error in not bearing in mind that the Act under which it is functioning has not provided it with any jurisdiction to set aside the ex parte reasoned order and therefore the order passed by the State Commission setting aside the ex parte order was without jurisdiction. The facts of the above case are applicable in respect of the District Forum as well. The Petitioner/Company did not challenge this order of the District Forum which thus gained finality. However, Petitioner/Company filed an appeal before the State Commission against the first order of the District Forum dated 02.11.2006 by which relief had been granted to the Respondent. The State Commission dismissed the appeal. The relevant part of the order of the State Commission is reproduced: The case of the complainant is that since she had not availed the services of the OP made a request to refund the money. In this regard the complainant has issued a legal notice. OP also, we are told, reply the same. Thereafter the complainant had filed the complaint before the DF alleging deficiency in service. On that complaint the DF ordered notice to the OP. The OP though serviced with the notice did not contest the case. From this it is seen that though an opportunity was afforded to the OP, the OP did not avail that opportunity. Therefore, taking into consideration the evidence adduced by the complainant, the DF is right in allowing the complaint of the complainant. Appeal is dismissed. Aggrieved by this order, the present revision petition has been filed by the Petitioner/Company. Shri A.N.Haksar, learned counsel for Petitioner and Shri H.Chandra Sekhar, learned counsel for Respondent were present.

LEARNED counsel for Petitioner in his oral averments stated that the District Forum erred in passing an ex parte order because due to deficient service of notice/summons at the incorrect address of the Petitioner/Company, the Petitioner/Company did not have an opportunity to defend the case. Counsel for Petitioner further stated that as per Section 21 of the Companies Act, 1956 which would prevail over those of the C.P.C., it is incumbent that a notice is issued to a Company at its registered office when a case is decreed against the Company. In the instant case, it is in evidence that the service of notice to appear before the District Forum was not sent to the registered office address but to the Bangalore Branch Office of the Petitioner/Company because of which its officers authorized to handle this case did not come to know about it and thus the case could not be defended. Regarding the issue of power to recall an order, the judgment of the Supreme Court cited by the District Forum has not been correctly interpreted by it. In that judgment while it was held by the Supreme Court that the powers of Order 9 Rule 13 of C.P.C. are not applicable to the consumer fora but this, however, did not mean that the power to recall an ex parte order is not applicable or available to the consumer fora. Even on the facts of the case, the District Forum erred in accepting the Respondents complaint. In this connection, Counsel for Petitioner brought to our notice its detailed reply to the legal notice of the Respondent which was sent to Respondent vide Petitioner/Companys letter dated 31.07.2006 and in which it was denied that any assurance had been given to Respondent regarding the common dates for the visa interview at US Consulate or that the Petitioner/Company would ensure that the Respondent and her sister will get the visas from US Consulate, since they have no control in these matters which is solely within the discretion of the US Consulate authorities. Further, the terms and conditions of the tour which were crystallized in Petitioners letter dated 26.05.2006 and duly signed by the Respondent in acceptance of the same, clearly indicated that cancellation of the tour by any tour participant after securing US visa due to any reason whatsoever would attract cancellation charges to the extent of 100% of the amount paid and therefore, that person would not be entitled to any refund. Once Respondent had accepted and signed on this, it became a document which has the sanctity of a contractual agreement. However, in good faith and as a special case, Petitioner/Company deducted only Rs.1,22,000/- and refunded her a sum of Rs.75,000/- in full and final settlement which was accepted in writing by the Respondent. Therefore, for the Petitioner to later contend that this was done under protest by her is a false allegation and her entire complaint is without any substance. These facts unfortunately were not taken into account by the fora below and the Petitioner/Company was wrongly denied an opportunity to be heard which is against the principles of natural justice and equity. The orders of the fora below, therefore, deserve to be set aside and the revision petition accepted. Counsel for the Respondent on the other hand reiterated that the orders of the fora below are in accordance with the provisions of the Consumer Protection Act and that the service of notice to the Petitioner/Company was made at the address mentioned in the complaint. The registered post acknowledgment on record of the District Forum shows that the said notice was delivered and received at the Branch Office of the Petitioner/Company on 08.09.2006 and therefore, to say that it was never seen by any of the officers of the Petitioner/Company is incorrect. Counsel for Respondent also reiterated the facts regarding the assurance given by the Petitioner/Company in respect of the visa and other issues relating to the tour as discussed earlier as being factually correct and concluded that the fora below had rightly held that the Petitioner was guilty of deficiency in service and according gave due relief to the Respondent. We have carefully considered the submissions made by the learned counsel as also the records and evidence on file. It is not in dispute that the case was decided ex parte because the Petitioner/Company did not respond to the summons/notices sent to its Branch Office in Bangalore instead of its registered office in Mumbai. In this connection, we note that the legal notice sent by the Respondent to the Petitioner was also sent to its Branch Office in Bangalore to which the Respondent had through its Vice President (Legal) sent a detailed reply on 31.07.2006. Therefore, for the Petitioner/Company to now take the stand before us that since the notice was not sent to its registered company address, therefore, the Petitioner/Company was not aware of the notice and could not be present before the District Forum is not very convincing. Since the Petitioner/Company did not appear before the District Forum the allegations made against it remained unrebutted and taking the facts as stated by the Respondent to be correct and on the basis of evidence before it, the District Forum as also the State Commission being courts of fact, concluded that there was deficiency in service. In our revisional jurisdiction we see no reason to interfere with these orders.

IT is a fact that the Petitioner had, therefore, filed a Miscellaneous Application before the District Forum seeking recall of its ex parte orders with a request that the case be heard afresh after giving Petitioner/Company an opportunity of being heard. The District Forum dismissed this M.A. and since the Petitioner did not challenge it, it has now gained finality and cannot be reopened by us. Petitioner/Company have also brought to our notice the contents of the reply sent by Petitioner/Company on 31.07.2006 in response to the legal notice of the Respondent dated 29.06.2006 wherein detailed reasons have been given by Petitioner for not refunding the remaining amount to the Respondent based on the terms and conditions of the agreement to which the Respondent had agreed. We note that this letter was never filed before the fora below as evidence and we are, therefore, unable to take cognizance of it at the revisional stage.

KEEPING in view the above facts, we have no option but to dismiss the revision petition and uphold the orders of the fora below. The Petitioner/Company is directed to refund Rs.1,12,000/- to Respondent with interest at the rate of Rs.10% per annum from June, 2006 till the date of payment and Rs.1,000/- as costs within 6 weeks from the date of receipt of this order. The revision petition is dismissed accordingly.