Dooars Transport vs MEDOCHEM LABORATORY PVT.LTD

BRIEF facts of the case leading to this appeal are that Medochem Laboratory Pvt. Ltd., complainant for short, booked two consignments on 28.9.1989 and 10.11.1989 with Dooars Transport Company, opposite party No. 1, from Delhi to Gaya. Requisite freight charges were paid. The total value of the consigned goods was Rs. 25,779.37. The goods failed to reach the destination. The complainant wrote three letters one after the other dated 15.3.1990,19.6.1990 and 12.7.1990 in order to find-out the fate of the goods, but failed to elicit any reply. The complainant, therefore, claimed price of the goods together with the interest and compensation. One Mr. Prem Shankar Khandelwal, Advocate entered appearance on behalf of the both the opposite parties i.e. respondent-Company, opposite party 1 and Mr. A.K. Mittal Proprietor thereof opposite party 2. The Advocate filed his Power of Attorney and took time to file written version of the opposite party. On the adjourned date again Mr. Khandelwal appeared for the opposite parties and sought a copy of the complaint which was supplied to him and he was given further time to file a written version. Thereafter none appeared for the opposite parties and the complainant filed affidavit of Mr. N.B. Bansal, MD of the complainant Company, The complaint was allowed and the opposite parties directed to pay Rs. 20,799.37 together with 18% interest from the date of booking till date of payment besides Rs. 2,500/- on account of compensation and costs by order dated October 6,1993 by District Forum-I.

IT appears that the order was not complied with and the complainant filed an application under Section 27 of the Consumer Protection Act. The District Forum issued notice in the said application. Counsel for the opposite parties appeared and it was contended by the opposite parties that the complaint was barred by limitation. The said application of opposite parties was, however, rejected by the District Forum by order dated 29.7.1997 on the ground that the objection regarding limitation might and ought to have been taken in the main complaint. The main order having not been appealed against become final and objection regarding limitation could not be entertained at that belated stage. Certified copy of the order rejecting the said miscellaneous application alongwith a duplicate copy of the final order dated 6.10.1993 passed in the main complaint were furnished to the opposite parties on 30th July, 1997, The present appeal was filed against the order passed in main case on 28.8.1997. We have heard Mr. K.K. Nagpal, learned Counsel for the appellant, Ms. Vipin Gupta for the respondent and have carefully gone through the records. The order appealed against is dated 6.10.1993/27.10.1993. The present appeal was filed on 28.8.1997, after nearly four years. The plea is that Mr. P.S. Khandelwal, Advocate engaged by the opposite parties did appear and filed his Vakalatnama before the District Forum but failed to file the written version which had otherwise been prepared and was ready. It is further alleged that Mr. Khandelwal failed to intimate amout further proceedings to the opposite parties, appellant herein, with the result that it became aware of the ex-parte order only during the proceedings under Section 27 when they approached the District Forum for re-opening the matter on the question of limitation but their application was dismissed. It was at that stage that the appellants obtained duplicate certified copy of the order passed in the main complaint and filed the present appeal. No application for condonation of delay has been filed alongwith the appeal. This is, therefore, a case where admittedly the opposite party was served. They engaged a Counsel and entered appearance. The Counsel appeared on two dates mentioned in the earlier part of this order and on his request the case was adjourned to enable opposite parties to file their written version. No written version was, however, filed. In these circumstances, the District Forum had no choice except to proceed ex-parte and decide the case. It was clearly the duty of the opposite parties to keep a track of the case and to file their written version on the date fixed by the District Forum. Clearly the District Forum was under no legal obligation to send a further notice to the opposite parties upon the failure of their Counsel who had filed his power of attorney on behalf of the opposite parties. Mr. Nagpal contended that the appellants should not be made to suffer owing to the inaction or misconduct on the part of their Counsel and the interest of justice required that the impugned order be set aside and the case remanded for fresh decision according to law. There is no denying the fact that the law leans against ex- parte decisions but in the peculiar facts and circumstances which stand admitted, the opposite parties had been duly served, they appeared through Counsel and took a couple of dates for filing their written version and they failed to enquire from the District Forum about the date of the complaint until proceedings under Section 27 were initiated against them. The plight of the complainant can be well imagined. This is also not a case where the party may have been diligently following up the case but through alleged mis-conduct on the part of the Lawyer, the ex-parte order may have been passed against them. On the contrary, the opposite parties did not bother about the proceedings taken in the complaint about which they stood squarely informed. The appellant cannot, therefore, shift the blame on their Lawyer. It is also significant that Mr. Khandelwal has not filed any affidavit owning responsibility of not informing his clients.

We called upon Mr. Nagpal to satisfy us by raising all such pleas which the opposite parties might have raised if they had been allowed to file a written version. Mr. Nagpal conceded that booking of two consignments with an invoice value of Rs. 20,799.37 and failure of the opposite parties to deliver the goods at the destination were not disputed. All that can be said on behalf of the opposite parties (appellant) is that there was an unfortunate dispute between the partners. The matter was referred to an Arbitrator whose award was ultimately made rule of the Court by the Calcutta High Court on 11.3.1991 because of the said dispute, the affairs of the Transport Company were dislocated and the present case could not be attended to. Mr. Nagpal also placed on record two letters dated 29.1.1990 and 10.2.1990 sent under Certificate of Posting to the complainant requesting the complainant to collect the goods of the consignment but there was no response from the complainant. As the opposite parties suffered ex-parte order before the District Forum, the aforesaid plea was never put forward. The evidenciary value of a letter sent under Registered A.D. post cannot be given to letters sent under Certificate of Posting. Moreover, assuming that the opposite parties were willing to return the goods and failed to have any response from the complainant, nothing prevented the opposite parties to rebook the goods and deliver them to the complainant explaining the circumstances why the goods could not be delivered at the destination. The opposite parties, however, failed to take any such action. Going by the version put-forward in the appeal, the appellants could not effect the delivery of the goods owing to dispu tes amongst the partners which led the arbitration proceedings and the award was made rule of the Court only on 11.3.1991. If these facts are assumed to be true, there was no question of writing letters dated 29.1.1990 and 10.2.1990 requesting the complainant to collect the goods sent through the opposite party.

THE goods were booked in September, 1989 and November, 1989 and the complaint was filed before the amendment of the Consumer Protection Act by the Amending Act of 1993, w.e.f. 18.6.1993 i.e. prior to the amendment prescribing a period of two years under Section 24A of the Act. Before insertion of the said provision, the National Commission had in a string of authorities laid-down that on grounds of public policy, the Forum shall not entertain stale matters that is the matters which were instituted within three years of the accrual of cause of action. As the complaint in the present case was filed on 10.3.1992, it was well within the limitation from the date of booking, Mr. Nagpal conceded that the complaint had been filed by the respondents in time and he did not press the objection regarding limitation. The next contention of Mr. Nagpal is that whereas Order 29, Rule 1, CPC empowers the Secretary or any Director or Principal Officer of the Corporation, who is able to depose to the facts of the case to sign and verify the suit, a Resolution of the Board of Directors is required to empower such officer to institute the complaint before the District Forum. In other words the complaint should have been dismissed on the ground that such a Resolution had not been placed on record. We find no merit in this contention. Firstly for the reason that Order 29, Rule 1 has not been made applicable to proceedings before the FORA constituted under the Consumer Protection Act, secondly the plea is of mixed question of law and fact and if such a plea had been raised, the complainant could show that there existed a proper Resolution of the Board of Directors or that the MD was otherwise competent to file the complaint on behalf of the complainant, private limited company. Such a plea cannot be allowed to be raised at this stage.

THE filing of this appeal has not only delayed the recovery of the amount, it also made it necessary for the respondent to engage a Counsel and contest the appeal. We find no merit in the appeal which is accordingly dismissed with Rs. 500/- as costs. THE amount in terms of the order of the District Forum as well as the cost awarded in tills appeal shall be paid by directing the Bank which furnished the Bank guarantee in the appeal to release the same in favour of the respondent. If the amount falls short of the sum due, the respondent may have his remedy according to law for recovery of the balance. A copy of this order be conveyed to the parties as well as to District Forum-I. Appeal dismissed with costs.