MUMBAI GRAHAK PANCHAYAT vs Mrs Rashmi B Fadnavis

FIRST Appeal Nos. 471 to 477 of 1994 were filed here on 22nd July, 1994. Since these appeals were filed against the order dated 8th July, 1994 by which the application for setting aside the ex - parte order dated 8th February, 1994 was dismissed by the learned District Forum, Hissar, the appeals were treated as revisions. The short point by way of preliminary objection is, which we otherwise also on the face of it find, that the basic order by which the complaints have been allowed against the appellant being on 8th February, 1994 these appeals/revisions are obviously barred by time. The application for condonation of delay has been filed, which is duly supported by the affidavit of the appellant/ petitioner in which it has been stated that when the appellant came to know about the passing of the ex -parte order dated 8th February, 1994, immediately the application for setting aside the ex -parte order was filed before the District Forum, Hissar. The exact date of knowledge has been stated to be 5th March, 1994 on which date the copy of the order was received by the appellant, so thereafter the application was filed on 7th March, 1994, which has been disposed of being not maintainable on 8th July, 1994. The principal ground for sufficient cause for not filing the appeal within limitation is that the time taken by the appellant before the District Forum in pursuing the subsequent application for setting aside the ex -parte order should be taken as the time, which has to be taken note of in reckoning the period of limitation; meaning thereby the period during which the application for setting aside the ex -parte order remained pending right from 7th March, 1994 to 8th July, 1994 should be excluded. Taking that into consideration, according to the learned Counsel for the appellant, the appeals filed on 22nd July, 1994 are within limitation more so when the orders were not in accordance with law, as they had been passed without actually serving the appellant. In support of that, reliance has been placed by the learned Counsel on the well -known case of Usha Rectifier Corporation (I) Ltd. v. R. Krishnaswamy reported as I (1995) CPJ 121 (NC), in which Hon''ble National Commission has been pleased to hold that if an order was illegal or void, then period of limitation will not stand in the way of setting aside that order. On the other hand, Mr. V.S. Juneja, learned Counsel appearing on behalf of the respondents has vehemently opposed the application for condonation of delay, by placing reliance on the decision of the Hon''ble National Commission reported as II (1992) CPJ 360 (NC), Viraj Overseas Pvt. Ltd. v. M/s. Hindustan Motors Ltd. & Others, and II (1992) CPJ 937, The Prop. M/s. Super Dry Cleaners v. Kapil Devi Bhakhri. The principal contention of the learned Counsel for opposing the application is that firstly it was a proper service of the notice which had been duly served under the law on the opposite party, i.e. the present petitioner, when the complaints were filed before the District Forum and the application for setting aside the ex -parte order has rightly been dismissed. Secondly, it has been contended that if at all it is taken that 5th March, 1994 was the date on which it came to the notice of the appellant that the complaints had been decided against him, he should have filed the appeals within 30 days before the State Commission instead of approaching the District Forum for setting aside the ex -parte order.

AFTER hearing the learned Counsel for the parties we arc of the considered view that it is a fit case in which the appeals should be decided on merits by condoning the delay. On the facts and circumstances of the case and by taking into consideration the fact that within 30 days of the date of notice of the passing of the order, i.e. 5th March, 1994, when the copy of the order was received by the appellant, the application for setting aside the ex -parte order was filed within 2 days, i.e. on 7th March, 1994. The appellant had of course two options - one by filing of appeal before the State Commission within 30 day sand second by approaching die District Forum for setting aside the ex -parte order. Of course, the District Forum did not have the jurisdiction to restore a complaint, which had been dismissed in default, but the appellant rightly took a chance for setting aside the ex -parte order on the plea that he was not duly served. In any case, seeing the facts and circumstances of the case, we condone the delay and allow the application and proceed to decide the appeals on merits. On merits, the factual position is simple, i.e. Mrs. Savita and six others approached the learned District Consumer Forum, Hissar, by filing seven separate complaints claiming compensation on account of the purchase and sale of shares from the appellant K.K. Sharma, who was a Broker and Commission Agent registered with the Delhi Stock Exchange Association Ltd. Since he used to assist the investors in dealing with shares and was charging his brokerage/commission on various transactions the complainants had been hiring his services on commission basis. It was in 1991 - 92 that K.K. Sharma appellant came to Hissar and pursuaded me complainants to enter into transactions of shares regarding which contracts were actually entered into on various dates in two months from 15.2.1992 to 11.4.1992 On the basis there of, the complainants deposited various amounts with the appellant K.K. Sharma. However, as the complainants had not received any amount from the appellant, they approached the learned District Consumer Forum, Hissar, for claiming damages against him. As the appellant K.K. Sharma did not appear before the District Forum despite various notices sent, the proceedings were conducted ex -parte against him and after examining the matter the learned District Forum accepted the complaints and awarded various amounts by way of compensation with 18% P.A. interest thereon against the appellant.

ACCORDING to the appellant K.K. Sharma as the proceedings against him were conducted ex -parte, which ultimately ended in the acceptance of complaints on 8.2.1994, he has filed the present appeals/revisions in which it has been vehemently contended that had the appellant been permitted to file his written statement he would have proved that the complainants had no case whatsoever before the learned District Forum. in nutshell the submission is that once the Vakalatnama had been signed by him in favour of his Advocate, all subsequent applications could be signed and verified and presented by his Counsel. It is further contended that the dispute between the parties was a commercial transaction and therefore, was not covered under the Consumer Protection Act, In any case, the learned District Forum, Hissar, had no territorial jurisdiction to entertain the complaints.

WE have heard the learned Counsel for the appellant at length and have gone through the record but we do not agree with the submissions made by him. It has been settled by now by the Hon''ble Supreme Court as well as by the National Commission that claims with regard to the sale and purchase of shares and for the refund of the money invested therein as well as for compensation arising therefrom are matters which are certainly covered under the consumer jurisdiction and relief can be granted in appropriate cases by the District Consumer Forums and the State Commissions. A consumer claiming compensation cannot be non -suited by the District Consumer Forum by styling the dispute as a commercial transaction. So far as the plea regarding lack of territorial jurisdiction is concerned, it has no basis as the learned District Consumer Forum, Hissar, was certainly competent to adjudicate the claims once it is established that the shares were purchased and money was paid at Hissar. Even if it is assumed that complaints could be filed at other places like Faridabad and Delhi, etc. that would not exclude the jurisdiction of the Hissar Consumer Forum. Under the circumstances, we do not find any legal infirmity in the decision of the learned District Consumer Forum allowing the complaints - Since the respondents have unnecessarily been dragged into litigation, they shall also be entitled to costs of these proceedings which are quantified at Rs. 500/ - in each case. Appeals disposed of. __