Dwarka Dheesh Investment vs N.K.Bhatia

IN the present revision petition there is challenge to order dated 6.7.2011 passed by the State Consumer Disputes Redressal Commission, Delhi (for short as State Commission). Vide impugned order, State Commission has dismissed the appeal on the ground of limitation as there was delay of 122 days in filing of the appeal.

BRIEF facts of this case are that respondent no.1/complainant gave two account payee cheques drawn for an amount of Rs.60,000/- and Rs.50,000/- respectively, for purchasing 1000 shares of Hotel Leela and 400 NTPC. Since respondent had no trading account with the company, hence shares were to be purchased in some other account and were to be transferred to his demat account. Respondent did another transaction with petitioner/OP-1 and he wanted to sell his shares through petitioner and deposited the shares in the demat account as required by the petitioner. As per respondent, total selling price of those shares comes out to Rs.2,17,210/- as per price quoted on those dates. The grievance of respondent is that, he was neither given shares for which he had given two cheques amounting to Rs.1,10,000/- nor he has been paid Rs.2,17,210/- as the sale proceeds of the shares. Hence he is entitled to receive Rs.3,27,210/- from the petitioner.

District Forum sent notice to the petitioner but same came back undelivered with remarks from the Postal Department refused. However, respondent no.2/O.P. no.2 appeared before the fourm who was made party at the later stage during the proceedings.

PETITIONER was also sent notice again when respondent no.2 was brought on the array of the parties. But this time also, notice from petitioner, came back with the remarks refused. Respondent no.2 in its reply stated that clinet I.D.No.10281617 with their D.P. belongs to one Shalini Grover. The account was opened as per the guidelines of NSDL and respondent no.2 has no idea about the connection beneficiary owner of this account has with Dwarka Dheesh Investment. All the transaction in this account has taken place on the instruction given by the client Shalini Grover and were executed as per the rules and regulations of the NSDL.

CONSUMER Disputes Redressal Forum, Delhi (for short as District Forum) vide its order dated 17.8.2009 allowed the complaint of the respondent and observed as under:- We are of the firm opinion that O.P.-1 is deficient in services for not paying back the amount so received as sale proceeds of the shares transferred by the complainant to them and also for not transferring shares to the account of complainant for which he had paid a consideration of Rs.1,10,000/-. We thereby, direct O.P.-1 to pay an amount of Rs.3,27,210/- as calculated by complainant alongwith compensation to the tune of Rs.5,000/- which includes costs of litigation.

Aggrieved by the order of District Forum, petitioner filed an appeal before the State Commission which was dismissed by the impugned order, being time barred. It is contended by learned counsel for the petitioner that State Commission has dismissed the application for condonation of delay in a hyper-technical manner without appreciating the facts and circumstances that petitioner was victim of ex parte order passed by the District Forum.

IT also contended that notice of the complaint was not sent by the District Forum to the petitioner on his correct address but it was sent on the address of one of the sister concern and due to confusion, the staff present at the relevant time in the office, might have requested for the notice to be redirected at the correct address but the postal authorities mistook the same and made wrong endorsement of refusal. Thus, petitioner has been deprived of his valuable rights to defend the proceedings.

ON merits, it is contended that the complaint does not disclose any cause of action and otherwise the same is devoid of any merit and legally not maintainable, since respondent no.1 is not a consumer within the meaning and definition of consumer as contemplated under the law. Main question which arise for consideration in the present case is as to on which date the petitioner acquired the knowledge of the order dated 17.8.2009 passed by the District Forum.

Petitioner has placed on record copy of application filed before the District Forum under Order 9 Rule 13 CPC for setting aside ex parte order dated 17.8.2009. In this application, it has been stated that petitioner came to know about the case only on 8.12.2009 when District Forum has issued warrant against the proprietor of the petitioner.

PETITIONER has also placed on record copy of appeal filed under Section 15 of the Consumer Protection Act, 1986 (for short the Act) before the State Commission, New Delhi. In this application, petitioner took a summersault and stated that he became aware of the proceedings only when the bailable warrants were issued against the proprietor Ms. Shalini Grover and an application for setting aside the ex parte order was made on 8.1.2010 which has been dismissed. Petitioner has taken different pleas with regard to the date of knowledge of the order of the District Forum. On the one hand, it is stated that he became aware of the order of the District Forum on 8.12.2009 and in the same breadth petitioner is stating that application for setting aside ex parte order was made on 8.1.2010.

BE that as it may, petitioner did not challenge the order dated 8.1.2010 passed by District Forum, which has attained finality. The relevant portion of the impugned order read as under :- 5. We have carefully gone through the records which were requisitioned from the Trial Forum. The points for consideration are (1) whether the order was passed ex-parte without issuing notice to the respondent and (ii) whether the copy of the impugned order was sent to the respondent or not. Considering point no.(1) for which we want to reproduce the order of the Trial Forum dated 5.6.2008 recorded on the order sheet as below:- 5..6.08 Present Complainant in person None for OP Notice sent for OP vide Regd. AD on 11.4.2008 has been refused by OP. Service to OP is presumed. OP is proceeded ex parte. Adjourned to 4..8.08 for ex-parte evidence. It is proved that the notice was issued to the appellant who refused to accept the notice. In such circumstances point no.1 goes against the appellant. As regards point no.(ii) record of the Trial Forum shows that copy of the impugned order was dispatched to the appellant on 24.8.2009 vide dispatch no.4861-63. 6. For the reasons stated above, so far as the grounds of delay are concerned, it may be stated here that the grounds mentioned in the application for condonation of delay are frivolous grounds. Since in the present case grounds of delay which have been taken up by the appellant could not be said to be proper and reasonable grounds and it could not be termed as sufficient cause for not filing the appeal in time, therefore, delay cannot be condoned. 7. Thus this Commission comes to the conclusion that the appellant has failed to substantiate their case for presenting the appeal after a delay of 122 days and for that reason application under section 5 of the Limitation Act deserves to be rejected and as the application for condonation of delay is rejected, the appeal filed by the appellant is also dismissed as being time-barred at admission stage.

The State Commission vide impugned order, as quoted above, has rightly dismissed the application for condonation of delay as well as the appeal being time barred.

THE above conduct of the petitioner will show that petitioner has taken the fora below for granted and his only intention is just to delay and not to comply with the order of the District Forum. Even on merits, petitioner has no case as petitioner was ex parte before the District Forum and it has no defence before the District Forum. Since the evidence produced by respondent no.1 has gone rebutted, we find no reason to disagree with the findings of District Forum.

THE present revision petition is most bogus and frivolous one and has been filed just to waste of time of this Commission. THE same is accordingly dismissed with costs of Rs.25,000/-. Petitioner is are directed to deposit the costs by way of cross cheque in the name of Consumer Legal Aid Account within four weeks from today. In case the costs are not deposited within the prescribed period, the petitioner shall be liable to pay interest @ 9% p.a. till realization.

Pending applications stand dismissed.

LIST for compliance on 10th February, 2012.