SILVER OAKS HEALTH AND TOURIST RESORT (P) LTD. vs JASBEEN KAUR GREWAL

THIS is an appeal filed against order dated 19.4.1999 passed by the District Consumer Redressal Forum-I, U.T., Chandigarh (for short, hereinafter, to be referred as the District Forum-I) in Complaint Case No. 717 of 1995-"Jasbeen K. Grewal v. Silver Oaks Health & Tourist Resort (P) Ltd."

THE contextual facts of the case, in brief, are as under : THE respondent/complainant, Ms. Jasbeen Kaur Grewal remitted Rs. 1,65,000/- with the OP/appellant, M/s. Silver Oaks Health & Tourist Resort (P) Ltd. at Jabli (Himachal Pradesh) and as per Clause 4 of the agreement between the parties, 40% of the construction was to be completed against this amount. THE respondent/complainant has averred that the appellant/OP has not constructed the cottage upto this level and has instead asked to pay the balance of Rs. 1,52,910/-. However, the payment was not made by her due to non-completion of the cottage upto the agreed level. She has alleged that asking her to pay the balance amount without completing of the agreed level of construction is a deficiency in service and she has prayed for the issuance of a direction to the OP to either give possession after receiving the balance payment due from her or refund the amount of Rs. 1,65,000/- with interest @ 24% p.a. and pay Rs. 15,000/- as compensation for botheration and harassment. The complainant in addition to her affidavit brought on record Annexures C-1, confirming the payment and C-2, copy of the Legal Notice. However, the OP did not appear and suffered ex parte proceedings.

The District Forum-I allowed the complaint and directed OP to refund the amount of Rs. 1,65,000/- with interest @ 12% p.a. w.e.f. 10.5.1994. In addition to this, Rs. 3,000/- were awarded as the costs of litigation.

THE respondent/appellant on 8.11.2000 filed an application before the District Forum-I to proceed against OP under Section 27 of the Consumer Protection Act, 1986 (for brevity to be called C.P. Act) for the execution of its order. On 15.7.2000, the title of the complaint at the time of execution was amended and in addition to Mr. V.K. Gargi, resident of 483, Sector 6, Panchkula, Sh. Deep Mohinder Singh Grewal, resident of 103, Sector 28-A, Chandigarh was arrayed as OP No. 2. On 19.8.2002, the OP filed an appeal under Section 15 of the C.P. Act, pleading, inter alia, that the appellant was never served with the notice of the District Forum-I. The appellant has assailed the order of the District Forum-I on the ground that the District Forum-I proceeded without observing whether or not proper service was effected on the appellant. The appellant has submitted that the District Forum-I fell into error in allowing the unfounded allegations of the complainant and accepting the version of the complainant without going into the fact if the complainant had actually made the payments as agreed upon between the parties. The appellant has also submitted that had the payment been made as per the agreement, there was no need of appellant to ask the complainant vide letter (Annexure C-1) to make the balance payment. The appellant has also averred that the instant case involves disputed questions of facts and law and the District Forum-I was not justified in proceeding with the same as the case involves the breach of contract and not covered under the provisions of the C.P. Act. The appellant has prayed that the impugned order, since passed without appellant having been duly served and having an opportunity to rebut the allegations against it, be set aside and the case be remanded to the District Forum-I to enable the appellant to file evidence in support of its contention.

MR. Arunjeev Singh Walia, Advocate appearing for the respondent/complainant contended that the notice was sent at the address mentioned in the letterhead of OP, hence the OP was duly served and since it did not appear despite service, the compliance of the impugned order be directed. The learned Counsel for the respondent/complainant in support of his contention, has cited the case of Pramod Kumar Bothra v. Ishwar Chand Sharma, CPR 1996 (1) Pp 54. We have heard the learned Counsel for the appellant as well as the learned Counsel for the respondent. We have also gone through the record of the complaint case and the impugned order under challenge, with utmost care and circumspection. The main point urged by the appellant is that the District Forum-I did presume the notice having been served on it and proceeded ex parte against it has merit, as the District Forum-I raised the presumption of service. The record of the complaint case before the District Forum-I shows that the District Forum-I in its Zimini order dated 10.8.1995 noted that the OP is served through peon. However, the name of the peon is nowhere mentioned nor there is any A.D. Card on record to confirm the due service. Since, there is no firm proof of service and as per the settled law, the presumptions are rebuttable, the presumption of due service raised by the District Forum-I is rebutted in the facts and circumstances of the case brought on record by the appellant and in the interest of justice, the complaint case deserves to be remanded to the District Forum-I for decision on merit after affording the due opportunity to the appellant to lead evidence in support of its defence. The case of Pramod Kumar Bothra v. Ishwar Chand Sharma (supra), cited by Mr. Arunjeev Singh Walia, Advocate for the respondent is distinguishable materially from the case in hand on the point that in the cited case, the appellant had neither appeared personally or through any authorised agent despite having been served with the notice but in the instant case, there is nothing on record to establish that the service, as required under law, was complete on the appellant and only a presumption was drawn by the District Forum-I, in respect of the service, which is itself rebuttable. Hence this authority does not lend any support to the case of the respondent.

RESULTANTLY, the appeal is allowed. The impugned order of the District Forum-I under challenge, is set aside. The parties are directed to appear before the District Forum-I, on 15.1.2003. The District Forum-I shall afford reasonable opportunity to the appellant to lead evidence in its defence and shall make every endeavour to decide the complaint case within the stipulated period under the C.P. Act. Copies of the order be supplied to the parties free of charges. Appeal allowed.