MAJESTIC AUTO LTD vs SH.K.KANT

BRIEFLY, the facts are that K. Kant, complainant now respondent No. 1 purchased a Moped from Himgiri Auto Mobile Pvt. Ltd. defendant No. 3 on 4th January, 1989 for a consideration of Rs. 7,805/-. It is alleged by him that since the date he purchased the Moped it did not work satisfactorily. Defendant No. 1 & 2 M/s Hero Honda Motors Pvt. Ltd. and M/s Hero Motors Ltd. were stated by him to be the manufacturers of the Moped. He pleaded that defendant No. 3 gave an assurance on behalf of defendant Nos. 1 & 2 that in case any defect arose, the same would be rectified, but inspite of his approaching the defendants many times, the defects could not be rectified. He has, therefore, prayed that the defendants be directed to either replace the Moped or refund the amount of Rs. 7,805/- paid by him to defendant No. 3 as its price.

NOTICES were issued to the defendants but no one appeared on their behalf before the District Forum. Consequently, the Forum vide impugned order dated 11.9.90 directed the defendants to replace the Moped within one month of the date of order, and in case it was not replaced, it was directed that they should pay Rs. 7,805/- Rs. 1,173/- to the complainant within that period, failing which the defendants would be liable to pay interest @ 12% per annum from 4th January, 1989 till the date of payment. In application dated 28th September, 90 was moved on behalf of M/s Majestic Auto Ltd. before the District Forum stating that defendant Nos. 2 & 3 had been duly served for 11th September, 90 and they had engaged Sh. Mahesh K. Chaudhary, Advocate for appearing before the Hon''ble Forum. Defendant No. 2 M/s Hero Motors was a division of M/s Majestic Auto Ltd. and defendant No. 2 was not the manufacturer of the Moped. It was alleged that on 11th September, 90, the Counsel was busy in the High Court of Delhi at New Delhi and he could not appear before the Forum when the case was called for hearing. However, he had deputed a Clerk to make a request to the Forum to wait for the Counsel, inspite of that the Forum proceeded ex-parte. Consequently, it was prayed that the ex-parte order dated 11th September, 90 be set aside and the said defendants be allowed to file written reply. The counsel also filed an affidavit in that regard. The Court rejected the application and conveyed the order vide letter dated October 17 & 23,1990 to M/s Majestic Auto Ltd. that the application had been rejected. It was stated in the letter that there was no provision in the Act for setting aside the ex-parte orders. M/s Majestic Auto Ltd. & M/s Himgiri Auto Mobiles Ltd. have come up in appeal against both the orders to this Commission.

The learned Counsel for the appellants submitted that M/s Hero Honda, defendant No. 2 had no connection with the appellants but he made them a party as they were made a party by respondent No. 1 before the District Forum. Consequently, he made a statement before the Commission that he gave up respondent No. 2 from the array of respondents. Respondent No. 1 had no objection if the respondent No. 2''s name was ordered to be deleted. Consequently, we ordered the deletion of the name of respondent No. 2 from the array of respondents.

IT was contended by the learned Counsel for the appellants that the application moved by the appellants for setting-aside of the ex-parte orders could not be dismissed on the ground that the Forum had no jurisdiction to set-aside the ex-parte order. If a Forum had power to proceed against ex-parte against a party it had also right to set-aside the ex-parte order if it was shown that there were sufficient grounds for it not to appear before the Forum. We have heard the learned Counsel for the complainant and respondent. It is true that neither in the Consumer Protection Act, hereinafter referred to as'' the Act'', nor in the Delhi Consumer Protection Rules, 1987, hereinafter referred to as ''the Rules'', there is any provision for setting aside the ex-parte final order. However, in Section 13(4) of the Act, the provisions of Code of Civil Procedure regarding, (a) summoning and enforcing attendance of the defendants and the witnesses and examining the witnesses on oath, (b) discovery and production of the documents, (c) the reception of evidence on affidavit and (d) issuing of Commission for the examination of any witnesses, have been made applicable. It is further provided therein that in any other matter prescribed by the rules the Code of Civil Procedure shall apply. Sub-rule 8 of the Rule 4 prescribes, that where the defendant or his authorised agent fails to appear on the date of hearing the District Forum can decide the complaint ex-parte. Under Sub-rule 9, the District Forum has been authorised to give adjournments in the complaint. The State Commission, it cannot be disputed, decides civil dispute between two parties. It is evident from the aforesaid facts that the Commission has got quasi-judicial functions and trappings of a Court. It is well settled that a Court has Inherent power to set-aside the ex-parte decree ex-debito justitiae, if sufficient cause is shown for non-appearance by the defendant.

IN the above said view we are fortified by the observations of the Supreme Court in Grindlays Bank Ltd. v. Central Government INdustrial Tribunal and others A.I.R. 1981 Supreme Court 606. IN that case an ex-parte award was passed by the Labour Court. Some of the respondents applied for setting aside the award on the ground that they were prevented for sufficient cause for appearing before the Tribunal when the reference was called on for hearing. The Tribunal set aside the ex-parte award on being satisfied that there was sufficient cause for doing so. The appellant challenged the order passed by the Tribunal setting aside the ex-parte award in the Calcutta High Court through a writ petition, which was dismissed. It went to the Supreme Court against the judgment of the High Court. One of the questions before the Supreme Court was whether the Tribunal had jurisdiction to setaside the ex-parte award. Before referring to the observations of the Supreme Court it is relevant to mention that there is no specific provision in the INdustrial Disputes Act or the Rules framed thereunder, which authorises the Tribunal to set aside the ex-parte award. Section 11 of the INdustrial Tribunal Act, however, provides that the Tribunal and other authorities have the same powers as are vested in Civil Courts under the Code of Civil Procedure for (a) enforcing the attendance of any person and examining him on oath, (b) compelling the production of documents and material objects, (c) and issuing Commissions for the examination of witnesses. It is further provided therein that the Tribunal shall have the same powers as are vested in the Civil Courts under the Code of Civil Procedure in respect of such matters as may be prescribed. IN the Rules framed under the INdustrial Disputes Act, Rule 24 authorises the Tribunal to grant an adjournment. After taking into consideration, the aforesaid facts, the Supreme Court observed that all the Tribunals or other authorities specified in Section 11 of the Industrial Disputes Act were not Courts but they had the trappings of a Court, and they exercised quasi-judicial functions. In a case in which the Tribunal and other body made ex-parte award, the provision of Order 9 Rule 13 of the code were attracted. It further observed that it logically followed that the Tribunal was competent to entertain an application to set-aside the ex parte award. The abovesaid observations are fully applicable to the present case. This view was followed by that Court in Satnam Verma v. Union of India, A.I.R. 1985 Supreme Court 194 wherein it was observed that if an ex-parte award was made and published in the official gazette, the Industrial Tribunal had the jurisdiction to entertain the application for setting it aside, if sufficient cause was shown for absence on the date on which the award was made. It was not correct to say that the Industrial Tribunal become functus officio once the award was published in the official gazette, be it an ex-parte one, and the Government alone could set it aside. It is further observed that both the Labour Court and the High court refused to entertain the application to set aside ex-parte award on an erroneous conclusion. After making the observations, the Hon''ble Court set-aside the ex-parte award. We are bound by the observations of the Hon''ble Supreme Court. Consequently, we are of the opinion that the learned District Forum was not right in holding, that as there was no provision in the Act for setting aside the ex-parte order, therefore, the application for setting aside ex-parte orders was not maintainable.

FOR the aforesaid reasons, we accept the appeal on this ground and set aside the order of the FORum dismissing the application for setting aside the ex-parte order and demand the case to the District FORum to decide the application for setting-aside the ex-parte orders on merits, after providing an opportunity to the parties to lead evidence. No order as to costs. The parties are directed to appear before the District FORum on 14.1.91. Appeal accepted.