MANAGING DIRECTOR, KHAITAN HOSTOMBE SPINELS LIMITED vs SUNDER DEVI

THIS is an appeal against the judgment and order dated 25.6.1994 passed by District Consumer Forum, Shahjahanpur in Complaint Case No. 120/1994.

THE facts of the case stated in brief are that the complainant had purchased 300 Shares on 24.12.1991 after paying a sum of Rs. 7,170/-. THEse shares were sent through Courier on 15.4.1992 to the opposite parties. THE opposite party received the shares but did not take any action for transfer of the shares in the name of the complainant. Reminder was also issued on 18.1.1993 and a notice dated 26.8.1993 was also served on opposite party informing them that a complaint lodged with Sewa, Bombay which was registered by the Security of Exchange Board of India. THE opposite party also did not take any action. By letter dated 14.6.1993, the opposite parties informed that the share certificates had been lost and affidavit and indemnity bond in prescribed form was required to be submitted. THEse formalities were completed by the complainant on 27.7.1993 and 1.9.1993. Even after complying the formalities, the share certificates have not been transferred, as such the complainant was deprived of the dividend from 1992 to 1994. THE complainant has claimed compensation. THE opposite parties, after service of notice did not file any written statement. The learned District Consumer Forum, after considering the case of the parties, creed the claim for Rs. 7,170/ as the cost of the shares with 12% per annum interest there on from 5.4.1992 till the date of payment. A an of Rs. 5,000/-. as exemplary damages and 5,500/- as cost was also awarded.

Aggrieved against the order of the learned District Forum, the appellant has come in appeal and has challenged the correctness of the order passed by the District Forum.

WE have heard the learned Counsels for the parties. The learned Counsel for the opposite party has raised preliminary objection that the appeal is barred by time. The appellant has moved an application for condonation of delay alleging therein that an ex-parte judgment has been passed on 25.6.1994. The appellant received notice dated 28.7.1994 under Section 27 of Consumer Protection Act on 16.8.1994 and for the first time came to know that an ex-parte order sheen passed. It is alleged that no notice was received by him. An application was sent on 26.8,1994 to the District Consumer Forum by registered post under Order 9 Rule 13 of the Civil Procedure Code for setting aside the ex-parte order dated 25.6.1994. When the appellant went to the District Consumer Forum, Shahjahanpur in December, 1994 to make the enquiries, he came to know that the application has been dismissed on 19/21.11.1994 without giving opportunity of hearing to the appellant. Thereafter the appellant took the copy of the judgment dated 19/21.11.1994 and filed the present appeal. Alongwith this application, an affidavit has been filed. A perusal of the application for condonation of delay will go to show that the appellant for the first time came to know about the ex-parte judgment and order dated 25.6.1994 16,8.1994 when the notice under Section 27 of (Consumer Protection Act was served on him. When the notice has been served on 16.8.1994, appellant should have filed the appeal within days after obtaining the certified copy of the judgment from the District Forum. The appellant applied for the certified copy on 17.12.1994 and the same was delivered to him on the same day. Why the appellant took so much time in obtaining the certified copy of the judgment has not been explained. The appellant could have obtained the certified copy of the judgment immediately on coming to know on 16.8.1994 about the ex- parte judgment. He waited for full four months for obtaining the copy of the judgment. Thus, we find that the appellant came to know of the judgment on 16.8.1994 and he should have filed the appeal within 30 days of this date. As the appeal has been filed on 19.12.1994, the same is barred by limitation. It has been argued that the appellant applied for setting aside the ex-parte judgment and order by moving an application on 26.8.1994 which was dismissed in December, 1994. There is no averment in this application as to why the appeal was not filed against the main order and only an application to set aside the ex-parte order was filed. As a matter of fact, the time spent in deciding the application for setting aside the ex- parte order cannot be excluded from the period of limitation as there is no provision for this contingency in the Consumer Protection Act, therefore, the appellant cannot take advantage of the time spent by him in getting the ex-parte order set aside. Moreover, the appellant has not filed the copy of the order which was passed on his application for setting aside the ex-parte order Thus, we find that the appeal is barred by limitation and as such the same is liable to be dismissed. ORDER The appeal is dismissed as barred by limitation with cost of Rs. 2,000/- to be paid within two months. Let copy of this order be made available to the parties as per rules. Appeal dismissed.