TAPE MANUFACTURING CO., NOIDA vs T.C.C.CARRIERS PVT. LTD.

NOBODY appears for the respondent through notice was sent by registered post on 27.11.2001. We proceed to hear the matter. Complainant is the petitioner before us. Respondent was opposite party before the District Forum.

IN normal circumstances we would not have interfered with the impugned order of the. State Commission setting aside the order of the District Forum directing ex parte proceedings against the respondent-opposite party, but considering circumstances of the case we are constrained to exercise our jurisdiction under Clause (b) of Section 21 of the Consumer Protection Act. We are firmly of the view that State Commission in the present case has acted in the exercise of its jurisdiction with material irregularity. When the matter came up for admission on September 11, 2001 we passed the following order : "The contention raised is that registered notice was sent on 29.2.1996 for 27.3.1996. Since it was not received back, it was the presumption that the respondent/opposite party, was in receipt of the notice and he was proceeded ex parte. The only contention raised in the application by the opposite party was that it did not receive the notice. It is stated that the notice was sent on the correct address of the respondent, as the respondent is a private limited company. Apart from saying that the notice was not received, no further evidence was led as to how a registered letter properly addressed was not received It is stated that the State Commission without appreciation the correct state of affairs set aside the order passed ex parte by the District Forum. Admit. Issue notice to the respondent returnable on 15.2.2002. There shall be stay of proceedings before the District Forum."

COMPLAINANT filed a complaint before the District Forum alleging deficiency in service on the part of the respondent-opposite party - a common carrier violating the instructions for delivery of the consignment entrusted to it. This complaint was filed on 30.5.1995. Notice of filing the complaint was issued by registered post for 28.11.1995. On this date there was no quorum in the District Forum and the matter stood adjourned to 16.5.1996. But this date was advanced to 23.2.1996 and at the request made by the complainant on 23.2.1996 notice was again sent to the respondent for 27.3.1996 by registered post. Since the registered post which was addressed to the respondent, a company registered under the Companies Act and having been correctly addressed, was not received back service was taken to be complete. As the respondent did not appear, he was proceeded ex parte. On 17.9.1996 final order, which was ex parte, was passed in favour of the complainant.

NOW we come to the second stage. On 30.9.1996 certified copy of the order passed on 17.9.1996 was sent by registered post to the respondent. There was no response from the respondent. It is stated that on 16.10.1996 complainant himself wrote a letter by registered post to the respondent requiring it to make payments in terms of the order dated 17.9.1996. This registered letter also the complainant did not receive back. On 29.11.1996 complainant filed proceedings against respondent for initiating action under Section 27 of the Consumer Protection Act, 1986. Notice of this application was sent by registered post to the respondent on 2.1.1997 for 26.2.1997. As usual it was not received back. Proceedings were thereafter adjourned to 8.4.1997 and a fresh notice in the meanwhile was issued to the respondent, as a last opportunity. On this date respondent did appear and was represented by its employee one Manoj Agarwal. He sought an adjournment on the plea that the Advocate Mr. Sandeep Gupta was busy in High Court. Matter stood adjourned to 14.5.1997.

ON this date i.e. 14.5.1997 nobody appeared for the respondent and bailable warrants were ordered to be issued for 4.8.1997. It would appear that bailable warrants could not be issued and on 21.7.1997 respondent moved an application for setting aside the ex parte order dated 17.9.1996 Application was then adjourned to 4.8.1997. Complainant was given a copy of the application for setting aside the order dated 17.9.1996 and for reply and arguments it was adjourned to 4.9.1996. On this date arguments were heard and the order reserved. On 25.9.1997 application for setting aside the ex parte order was dismissed.

RESPONDENT -opposite party went in appeal before the State Commission. By order dated 4.7.2001, which is impugned before us appeal was allowed and the ex parte order dated 17.9.1996 was set aside. State Commission was of the view that in this case rules of natural justice had been violated and that the respondent-opposite party should have been given an opportunity to represent its case. It recorded "principles of natural justice require, that no one should be condemned unheard and, therefore, we are of the opinion the given facts as detailed above the appellant deserves the opportunity to present its case before the District Forum." It is difficult to appreciate the reasoning of the State Commission in the circumstances of the present case. After what has been narrated above about the events that happened before the District Forum it is trite to say that rules of natural justice had been violated. State Commission has not kept in view the basis as to how a consumer dispute is to be decided expeditiously while observing the principles of natural justice. The principles of natural justice do not demand that a person against whom order is proposed to be passed must be physically brought to the Court when he chooses not to appear in spite of notices to him and it is also not the procedural requirement that registered cover sent to the addressee must be received back even beyond 30 days of notice sent by post to him. In these circumstances a presumption can be raised that addressee is served and that on his mere statement that he did not receive the registered cover when the registered cover has been sent on the correct address, cannot displace that presumption. As to how presumption can be displaced will depend upon the facts and circumstances of the case. It could not be said that the respondent-opposite party did not receive the notices sent to it by registered post at its correct registered office address. We do not think it could ever be disputed that principles of natural justice had not been complied in the present case. We, therefore, allow this petition and would set aside the order of the State Commission while restoring that of the District Forum. Parties shall appear before the District Forum on 8th April, 2002.