Saha Financial Services Represented By Its Partners vs BIPRADAS MANDAL

THIS revision petition challenges the order dated 5th April 2011 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata (in short, ''the State Commission ''). By this order, the State Commission disposed of the appeal of the complainant/respondent no.1 with the direction that he would be entitled to receive, from the petitioner, interest on the deposit of Rs.1,85,805/- @ 8% per annum from 13.04.2005 till realisation, thus modifying the date of commencement of interest entitlement to 13.04.2005 instead of 29.08.2008, as directed by the District Consumer Disputes Redressal Forum, North 24 Parganas, Barasat (in short, ''the District Forum '') in its order dated 29.07.2009 on the complaint filed by respondent no.1.

AFTER hearing the counsel for the petitioner/opposite party (OP) no.1, , notice was issued limited to the point whether, in the facts and circumstances of the case, interest on Rs.1,85,805/- should be awarded with effect from 28.08.2008, as ordered by the District Forum. We have heard Mr. Sarad Kumar Singhania and Mr. Tilak Mitra learned counsel for the petitioner/OP and respondent/complainant respectively and Ms. Shalini Shah for SEBI and perused the records.

MR . Mitra was allowed to and has filed a copy of the certificate dated 29.08.2008 issued by the United Bank of India, Kamarhati Bazar Branch, Kolkata, in the context of the relevant consumer complaint which clearly shows that the last payment made by the respondent no.1/complainant to the petitioner was indeed dated 13.04.2005. Mr. Mitra has further stated that this document was produced before the District Forum but somehow escaped its notice. The apparent error was accordingly corrected by the State Commission in its impugned order.

ON the other hand, Mr. Singhania has, without permission, filed several documents though he was allowed with reference to the limited notice, to only to respond to the above-mentioned contention of Mr. Mitra and the document produced by him. The thrust of Mr. Singhania ''s argument is mainly that the petitioner was unable to produce evidence before the District Forum and, therefore, the matter should be remanded back for fresh adjudication after allowing the petitioner to produce evidence. It is clearly seen from the order of the District Forum that while OPs no. 2 and 3 contested the complaint of respondent no.1/complainant by filing written version and evidence on affidavit, petitioner (which was OP 1 before the District Forum) remained absent. It is not the case of Mr. Singhania that the petitioner (OP 1) was not duly served. In such a situation, it is entirely impermissible for him to seek to file documents at the stage of hearing of the revision petition. These documents cannot, therefore, be considered nor is it permissible for the counsel for the petitioner to urge re-adjudication at this stage, in the circumstances of the petitioner ''s clear failure, without any reason, to appear before the District Forum at the appropriate time.

THE judgment of the Apex Court in the case of UPSRTC v Mahendra Nath Tiwari and Another [(2006) 1 SCC 118] that Mr. Singhania wishes to cite in support of his contention is patently inapplicable to this case, as even a cursory reading of the facts of the case leading to that judgment would show. In paragraph 6 of the judgment, the Apex Court has observed: "At the time of issue notice, this Court issued notice only limited to the question of back wages that was awarded to the respondent. Of course, when we are hearing the appeal on grant of leave or the petition for special leave to appeal after notice, we are entitled to reopen the appeal in its entirety and consider the question of punishment and legality of the reinstatement ordered by the Labour Court and affirmed by the High Court. This could be done by giving a notice in that behalf to the respondent and given him an opportunity of being heard. But for the purpose of this case and at this distance of time, we do not think that it is necessary to do so. Therefore, somewhat reluctantly, we refrain from adopting that course, though, according to us, this is a fit case whether neither the Labour Court nor the High Court had any justification in interfering with the order removing the respondent from service. The conduct of the respondent as a conductor of UPSRTC was totally irresponsible and clearly constituted misconduct on his part deserving the maximum punishment ".

It is on this basis that Mr. Singhania urges that this Commission to reopen the entire matter and remit it back to the District Forum for de novo adjudication. We are not persuaded that the failure of the petitioner to present its case before the District Forum, despite due service of notice, be cured by Mr. Singhania ''s argument and reliance on the foregoing observations of the Apex Court when there is nothing to show why and how the petitioner failed to remain present. In our view, the ratio of the Apex Court ''s ruling cannot be applied to this case because the facts are very different.

IN view of the foregoing discussion, the revision petition is dismissed, with no order as to cost for these proceedings. The respondent/complainant shall be free to execute the order of the State Commission, if it is not complied with within 30 days of the date of this order.