HEADWAY FINANCE And INVESTMENT CO. LTD. vs SARLA DEVI

THESE appeals by the Headway Finance and Investment Company Ltd., Agra are against an exparte order dated November 12, 1992 of District Forum, Farrukhabad. In two appeals (Nos. 1556 of 1992 and 605 of 1993) the decision of the District Forum is of November 16, 1992. The appellant says that the slight delay in filing the appeals was due to the fact that it received the information about the decision after the certified copy of the same, which was prepared on November 25, 1992, became available to the appellant. The appeals were despatched by registered post on December 26, 1992 from Agra, where the Head Office of the appellant is located, and were received in the office of the State Commission on December 29, 1992. The appellant has prayed for condonation of this delay.

THE respondents in each of these appeals deposited different amounts and obtained deposit certificates from the appellant containing details of the deposits and the terms thereof. THE Counsel for the parties, who have appeared before us, have told the Commission that though the deposits were made in the month of March, 1989 they were dated back to March 7, 1988 to give benefit of a period of one year to the depositor while calculating the amount repayable to them. THE condition about refund was that in case return of the amount was asked for before expiry of two years from the date of deposit 90% of the amount was repayable; in case the period of two years was completed the ratio for repayment was to be 1.2625 and on completion of 2 years it was to be 1.3383 and so on. THE depositors, respondents in these appeals, closed their account in the month of September, 1990 and asked for the return of the money with interest thereon. When they failed to get back the amount they had to file the complaints which have been decided in their favour by the District Forum. THE operative portion of the order of the District Forum in all these cases contains a direction for repayment of different amounts to the depositors within a specified time together with interest at 12% per annum. The appellants say that they had no notice about the proceedings and it was only when they were informed that final orders had been passed against them that they ascertained about it and obtained certified copies of the orders. They say that the District Forum at Farrukhabad had no territorial jurisdiction to try the matter as the Head Office of the appellant is at Agra and according to the agreement between the parties the disputes between them were to be settled at Agra. The appellant also says that in each of these cases the complaints initially filed by the depositor-complainant had been dismissed by the District Forum but the same complaints were registered afresh and proceedings taken therein at the instance of the complainants without notice to it. The appellant says further that the grievance about non-payment of an amount to the depositor with or without interest by a Company like the appellant could not be made subject matter of a dispute under the Consumer Protection Act, 1986 as no service was being offered by the appellant to a depositor. There are the main grounds taken in the memorandum of appeal in these cases.

Mr. Murtza Husain Khan, Counsel for the complainant-respondent in these appeals, has urged that the appeals were filed beyond the period of limitation and there was no affidavit in support of the prayer for condonation of delay in them except for Appeal No. 605 of 1993. The delay, says Mr. Murtza Husain, was not satisfactorily explained either and the appeals deserved to be dismissed on this ground alone. Mr. S.B.Lal, Counsel for the appellant, has countered this submission.

FROM the record of these appeals before the Commission we find that except for Appeal No. 605 of 1993 there is no affidavit in support of the prayer for condoning the delay in the filing of the appeal, though a request for such condonation has been made in the memorandum of appeal in each cases. The affidavit filed in Appeal No. 605 of 1993 says that the facts stated in the memorandum of appeal and the stay application may be read as part of the affidavit. In ground No. 12 of the memorandum it has been stated that the order dated 16th November, 1992 came to the knowledge of the appellant on 28th November, 1992 and that the appellant had sent an appeal by registered post against the order on December 14/16, 1992. This fact has been specifically stated in paragraph 5 of the affidavit in Smt. Meena Maheshwari. The further statement in the memorandum of Appeal No. 605 of 1993 is that the office of the Commission did not enter receipt of the appeal in its record. In paragraph 5 of the affidavit of Smt. Meena Maheshwari in this appeal it has also been stated that on that account the appeal was being filed again. The appellant appears to be right in the statement that the certified copy of the order of the District Forum in each of these cases was prepared on November 25, 1992. That is clear from the endorsement made by the office of the District Forum on the copy of the order filed with the appeal. The despatch of the appeal by post on December 26, 1992 would be on the 30th day. The memoranda of the appeals show that the appeals were received in the office of the Commission by registered post on December 29, 1992. The facts, in these circumstances, are self-evident to the effect that the appeals were despatched on the 30th day by post from Agra and were received in the State Commission three days later. The nature of the proceedings under the Consumer Protection Act, 1986, having regard to its objects, is such where a very strict view in the matter of insistance upon technicalities may generally have the effect of negating achievement of the objects of the Act. In a case like the present, where the delay is small and the necessary facts are self-evident, it would be unjust to throw out an appeal on the ground of limitation for the mere reason that no affidavit had been filed in support of the prayer for condonation of delay.

THE decision of the State Consumer Disputes Redressal Commission, Kerala in M/s. Bajaj Auto Ltd. v. K.A. Pankajasshan and Others, (Appeal No. 177 of 1992 decided on 23.9.92) does not assist the respondents. In that case it was said that when the argument was opened it was assumed at one stage that the delay in filing the appeal was so small as to be ''condonable'' but it was found that it was much more and since there was no affidavit to explain the delay there was no good reason to condone it, the absence of an affidavit being fatal. THE facts of the case are not contained in the order but we find it difficult to subscribe to the view that the absence of an affidavit in support of a prayer for condoning the delay would be fatal even in a case where the necessary facts are self-evident from the documents on record. In fact, no such inflexible rule can be read in the order of the Kerala Commission. In the present appeals, we feel, the slight delay of 3 days in their filing deserves to be condoned. We condone it. Mr. Lal, for the appellants, has placed strong reliance upon the observation made by the National Commission in Consumer Unity and Protection Centre v. Laxmi Chand Bhagaji Ltd. and Others (reported in II (1992) CPJ 447 (NC)) decided on 17th October, 1989. In that case the respondent-Company had taken substantial amounts by way of deposit from a very large number of people and had defaulted in the matter of repayment of the amounts after they had become due. The National Commission, after hearing representatives of the parties, observed thus:- "We consider that the proper course to be adopted by the petitioner in the circumstances of the case is to file a petition for the winding up of the respondent-Company before appropriate Court having jurisdiction under the Companies Act. On this limited ground, we dispose of this petition as closed...."

(emphasis ours) The order of the National Commission was made in the particular circumstances of that case. Later, in Neela Vasant Raje v. Amogh Industries and Others III (1993) CPJ 261 (NC)=1993 (3) CPR 343, the National Commission laid down in unmistakable terms that when a company or a firm invites deposits on promise of attractive rates of interest and prompt repayment as on expiry of stipulated period, the default on its part to carry out its obligation to repay the amount constituted deficiency in service so as to warrant filing of a complaint before a Consumer Forum seeking relief under the Act. In the present cases also it is not possible to accept the submission on behalf of the appellant that the grievance could not be brought for decision before a Consumer Forum.

THE plea that the term in the agreement that in case of any dispute the same shall be settled at Agra had the effect of ousting the jurisdiction of a District Forum other than at Agra, for that reason alone, is not sound in law. Such a term would clearly be hit by the provisions of Sections 23 and 28 of the Indian Contract Act, being opposed to public policy and being oppressive to a consumer defeating the specific provision of Section 11 of the Consumer Protection Act. Of course, if territorial jurisdiction is found to be ousted on account of the provision contained in Section 11 itself, it is a different matter. THE plea in that regard is to be raised before the Forum in the first instance and substantiated on the basis of the material on record before it. No such effort was made in this case by the appellant who says that he did not have notice of the proceedings before the District Forum, Farrukhabad until the decision under challenge had been made. THE order of Ac District Forum under appeal says that after filing a written statement no one appeared on behalf of the appellant before the District Forum. THE plea contained in the memorandum of appeal before us that at the relevant time there was no Branch office of the appellant at Farrukhabad nor did any transaction relating to the deposit in question take place within the territorial jurisdiction of District Forum, Farrukhabad is a plea which can only be examined on the basis of some material brought on the record by the parties. Since, as would appear latter in this order, we are inclined to send the matter back for redetermination to District Forum, Farrukhabad we leave the parties to bring necessary material on the record before the District Forum and invite an order from it on this aspect as well.

THE District Forum, as is clear from the orders under challenge in these appeals, has directed payment to the claimant-respondent in each of these cases an amount which is far in excess of what was actually deposited by him with the appellant without disclosing any basis whatsoever for calculating the amount directed to be refunded. THE case of the appellant is that having regard to the date when the refund was claimed by the depositor only the amount actually deposited by him was repayable. We express no opinion on it at this stage lest it may prejudice the case of either party. THE appellant has also mentioned in the memorandum of appeal, relating to each case separately, the number of an earlier complaint on the same subject matter which had been dismissed and has pleaded on that basis that a subsequent complaint on the same subject matter is not maintainable. This aspect also requires to be one into by the District Forum. THE parties shall be able to put forward their own version about it to enable the District Forum to record a reasoned decision upon it. In conclusion, we allow these appeals and set aside the order of the District Forum under appeal in each case and send the matter back to the District Forum for hearing and decision afresh after notice to the parties. The District Forum shall try to dispose of the matter expeditiously, as far as possible within three months from the date of receipt of a copy of this order. Parties are left to bear their own costs in these appeals.

The main judgment shall be placed on the file of Appeal No. 605 of 1993 and copies thereof shall be placed on the files of Appeal Nos. 1556, 1557, 1558 and 1559 of 1992.

A copy of the order shall be sent by post to District Forum, Farrukhabad and its copies shall also be made available to the parties as per rules. Appeals allowed.