Sanjiv Kaushal vs RAJIV SHARMA

THIS revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 23.12.2010, passed by the Punjab State Consumer Disputes Redressal Commission (for short ''the State Commission '') in FA No. 192/2007, ''''Sanjiv Kaushal versus Rajiv Sharma '''', vide which while dismissing appeal, the order dated 01.08.2006, passed by the District Consumer Disputes Redressal Forum, Gurdaspur, in consumer complaint no. 836/2004, allowing the said complaint, was upheld.

BRIEF facts of the case are that the respondent/complainant Rajiv Sharma filed the complaint in question under section 12 of the Consumer Protection Act, 1986 (in short the Act) for recovery of an amount of Rs.78,100/ - from the petitioner. It was stated in the complaint that the petitioner/OP is the President of a society, called the Shri Sai Baba Jan Kalyan Society, and he published advertisements in The Hindustan Times on 13.12.2003, inviting the public to contribute a sum of Rs.699/ - to the Society. The complainant deposited the said amount, after which he was allotted ID No. 0001775. The complainant enrolled 42 more members under the scheme and the necessary amounts were deposited in respect of those persons as well and ID Nos. were allotted to all these members. The petitioner/OP agreed to pay Rs.78,100/ - to every Member and also agreed to pay a sum of Rs.600/ - within four to six months to every member. A gift of either a dinner set or a hot -case or an electric iron was also planned to be given to every member. However, on the failure of the OP to meet his commitment, the complainant sent him a legal notice on 1.10.2004 through registered post, but to no effect. The complainant then filed the consumer complaint in question, before the District Forum Gurdaspur seeking directions to the OP to make payment of Rs.78,100/ -, as promised. The District Forum vide their order dated 01.08.2006, allowed the complaint and directed the OP to make payment of Rs.78,100/ - within a period of one month, failing which the complainant shall be entitled to interest @9% p.a. An appeal made against this order before the State Commission was dismissed vide impugned order. It is against this order that the present petition has been made. Notice of the petition was sent to the respondent for appearance before this Commission. However, he did not put in appearance at the time of admission hearing. The petition was admitted on 04.10.2013. Another notice was sent to the complainant/respondent for final hearing, in response to which the complainant/respondent put an appearance in person on 27.01.2014, when the case was adjourned for final hearing on 3.04.2014. However, the complainant did not put in appearance at the time of final arguments.

AT the time of arguments, the learned counsel for the petitioner stated that the jurisdiction to hear the consumer complaint was at Patiala, and not at Gurdaspur. The orders passed by the District Forum, duly affirmed by the State Commission suffer from the error of jurisdiction. Further, the complaint should have been filed against the Society and not against the petitioner in person. The learned counsel stated that as mentioned in the revision petition itself, the petitioner, alongwith six other persons had formed the Shri Sai Baba Jan Kalyan Society that was registered under the Societies Registration Act, 1860 at Patiala in the year 2003. The said Society had floated a business associates scheme, under which a person desirous of enrolling himself as member, was required to deposit one time lump sum amount of Rs.699/ - only with the Society. In return, the Society was supposed to provide him a dinner set or hot -case or electric iron etc. as per his choice. The applicants were encouraged to enrol more members and were promised cash rewards upto Rs.78,100/ - per year for making others to enrol new members. The learned counsel admitted that the said scheme did not last for long, because the Society were losing funds due to the said scheme, and ultimately, vide resolution dated 24.07.2004, the Society was dissolved and due intimation was given to the Registrar of Firms and Societies. The premises where the Society was functioning was returned to the landlord on 31.07.2004. The learned counsel stated that the order passed by the District Forum was bad in the eyes of law, because the petitioner was wrongly proceeded against exparte by the District Forum. The petitioner came to know about the said order at the time of execution proceedings only. The learned counsel further stated that payment of Rs.600/ - as commission had already been made to the complainant and he showed certain documents to this effect at the time of arguments. Although the complainant/respondent did not appear during hearing, but a written version sent by him is on record. It has been stated therein that the orders passed by the lower consumer fora were in accordance with law.

I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me. The main ground taken by the petitioner in the grounds of appeal before the State Commission, in the grounds of revision petition, as well as during arguments says that he was not properly served by the District Forum, during proceedings before them and hence, the order passed by the District Forum was bad in the eyes of law. It has been stated that the address of the petitioner stated in the complaint is ''''SCO No. 134, S.F., Baradari, Patiala '''' In fact, the correct address was ''''SCO No. 134, First Floor, ChhotiBaradari, Patiala - 147001. ''''

FURTHER , the petitioner had vacated the said premises on 31.07.2004, whereas the notice is stated to have been sent to him later on, and hence there was no question of the notice being served at that address.

IN the order dated 01.08.2006, passed by the District Forum it has been stated as follows: ''''Notice of the complaint was sent to the opposite party through registered A.D. post. Neither registered cover nor acknowledgement was received back despite the lapse of period of 30 days from the date of dispatch and it was presumed to have been served upon the opposite party. None had put in appearance on behalf of the opposite party and he was proceeded against exparte vide order dated 26.04.2005. ''''

When an application was moved before the District Forum after the decision of the case for setting aside the exparte order dated 26.04.2005, the District Forum again observed that a period of 30 days had elapsed from the date of dispatch of registered cover and hence, the notice was presumed to have been served on them.

IN this regard, it shall be worthwhile to refer to proviso to section 28A (3) of the Consumer Protection Act, 1986, which says as follows: - ''''Provided that where the notice was properly addressed, pre -paid and duly sent by registered post acknowledgment due, a declaration referred to in this sub -section shall be made notwithstanding the fact that the acknowledgment has been lost or mislaid, or for any other reason, has not been received by the District Forum, the State Commission or the National Commission, as the case may be, within thirty days from the date of issue of notice. ''''

A plain reading of the above provision indicates that a declaration about proper service in the event of non -receipt of acknowledgement within thirty days, can be made only, if notice had been properly addressed. In the present case, it is clear that the petitioner had vacated the premises in question by the time, the notice was sent, and hence, it cannot be stated that the notice was sent to correct address. The presumption of service made by the District Forum that the registered notice was not received back within 30 days from its dispatch, could not be validly made in this case, therefore. Further, the petitioner has stated that under the terms and conditions of the scheme, a person enrolled as member, could be given an amount upto Rs.78,100/ -, whereas the District Forum has allowed a sum of Rs.78,100/ - to the complainant, besides a compensation of Rs.20,000/ -. The petitioner also pointed out during arguments that certain payments etc. had been made to consumers, but this factor was not taken into account by the District Forum and State Commission, while pronouncing their order.

IN view of the position explained above, this revision petition is allowed, the order passed by the State Commission is set aside and the case is remanded to the State Commission with the direction that they should hear the appeal again, give appropriate opportunity to both the parties to produce documents relevant to the case and take a decision afresh. The parties are directed to appear before the State Commission on 16.07.2014 for further proceedings.