U.P.AVAS EVAM VIKAS PARISHAD vs Satyawati

THIS is an appeal against the order dated 30th March, 1995 and order dated 2nd May, 1995 passed by the District Forum, Bulandshahr in Complaint No. 705 of 1995. The facts of the case stated in brief are that the complainant applied for a plot of land on 14.7.1980 by depositing a sum of Rs. 2,000/- in cash as registration money with the opposite party, who had floated a scheme for allotment of the plot. Inspite of repeated requests no residential plot was allotted to the complainant. Hence after suffering a lot, the complainant after complying with the formalities, applied on 27.12.1993 for refund of the entire deposit of registration money of Rs. 5,000/- alongwith interest. The appellant had not returned the money so far.

THE complainant, inspite of service, did not file any written statement before the learned District Forum. THE learned District Forum, after perusing the evidence on record, came to the conclusion that the complainant had deposited a sum of Rs. 5,000/- in two instalments. THE learned District Forum, after perusing the evidence, decreed the claim of the complainant and ordered for refund of Rs. 5,000/- alongwith interest at the rate of 12% per annum within a period of two months. A sum of Rs. 1,000/- was also awarded as compensation. It was further provided that if the opposite party failed to pay the amount within the time period, then interest from 1.6.1995 till the date of payment will be paid at the rate of 18% per annum. Aggrieved against this order the appellant has come in appeal and has challenged the correctness of the order of the District Forum.

We have heard the learned Counsel for the parties.

LEARNED Counsel for appellant has argued that the notice of complainant was issued which was received by the appellant on 21.1.1995 but when the Advocate went to the Court he came to know that the judgment was delivered on 30.3.1995. It has further been argued that the learned District Forum without waiting for the written statement, delivered the judgment on 30th March, 1995. It was further argued that after obtaining the copy of the judgment, the restoration application was moved which was dismissed on 2.5.1995 and thereafter the appeal was filed on 14.9.1995 alongwith application for condonation of appeal. Learned Counsel for the opposite party argued that no sufficient cause has been shown by the appellant for not filing the appeal within the period of limitation.

NOW we revert to the facts of the case in order to see whether the delay in filing the appeal has been sufficiently explained or not by the appellant. According to the learned Counsel, the appellant has moved a restoration application which was dismissed and the time spent in proceeding with the application of restoration should be condoned. The time spent in getting the application for restoration decided cannot be taken into consideration for the simple reason that Section 14 of the Indian Limitation Act does not apply to these proceedings. The period spent by the appellant in processing application for setting aside an ex parte judgment cannot be condoned under any provision of the Consumer Protection Act. The Consumer Protection Act has no provision under which the period spent by litigant in prosecuting his matter in a different proceeding is entitled to claim exclusion of that period from the period of limitation. Section 14 of the limitation Act deals with such contingencies but those provisions have not been made applicable to proceedings under Consumer Protection Act. Hence those provisions cannot be imported in matters which are pending under the Consumer Protection Act. According to the appellant, the appeal was filed on 14.7.1995 even though the application for restoration was dismissed on 2.5.1995. This period of about 2 months 13 days has also not been explained by the appellant. There is no affidavit to show as to what happened between this period which prevented the appellant from filing the appeal immediately after dismissal of restoration application. Therefore, this period has also not been explained by the appellant in not filing the appeal immediately after the dismissal of the restoration application. It has also been argued that the decree which was passed ex parte by the Consumer Forum should be set aside in this appeal as there was sufficient cause for not filing the appeal within the period of limitation. In order to come to a finding on this point, it will also be necessary to find out as to why the appellant did not put up appearance before the learned District Forum even after the service of notice of the complainant. It is an admitted fact that the notice of complainant was received by the appellant on 21.1.1995 and the judgment was delivered on 30.3.1995 after a lapse of about two months 9 days. When the appellant received the notice of the complainant, it was his duty to have immediately arranged for filing the written statement within the period prescribed by the Forum. If there was some difficulty in filing the written statement within the period allowed, then he should have applied for extension of time for filing the written statement. In action of appellant shows that after receiving the notice, he slept over the matter and approached the Court only after delivery of the judgment. As there is no explanation for not approaching the Court immediately after the receipt of notice of the complainant and allowing the judgment to be passed ex parte, will disentitle the appellant to seek for condonation of this much period. Thus we find that no cause has at all been shown for not filing the written statement or approaching the District Forum concerned for filing the written statement or extension of time for filing the same.

MOREOVER, the Hon''ble Supreme Court in a recent judgment delivered in the case of Jyotsana Arvind Kumar Shah & Ors. v. Bombay Hospital Trust, VII (1999) SLT 146 , has held that the law does not permit the respondents to move application for setting aside an ex parte order, which appears to be the position, the order of the State Commission setting aside ex parte decree cannot be sustained. As stated earlier, there is no provision in the Act enabling the State Commission to set aside the ex parte order. Thus in view of this interpretation of law, the District Forum had no power to set aside the ex parte order. Hence the application moved before the District Forum for setting aside the order was misconceived and the order passed by learned District Forum on merits could not have been set aside. The order of the learned District Forum is correct.

THE learned Counsel for the appellant has argued that Rs. 8,000/- was paid by cheque and out of this amount, Rs. 6,520 /- remain unpaid because the payment of this amount was stayed. A perusal of the order dated 10.4.1997 will go to show that the recovery of Rs. 6,520/- was stayed. THErefore, the amount which had been allowed by the District Forum is to be paid to the complainant minus the amount which has already been paid to the complainant. Learned Counsel for the appellant has argued that Rs. 8,000/- was paid by cheque on 23.5.1995 with interest at the rate of 6% per annum. We find from the order of the District Forum that the interest in the form of damages was awarded at the rate of 12% per annum if the payment was made within two months; failing which the interest shall have to be paid at the rate of 18% per annum. The amount was not paid within the period of two months as indicated in the order of the learned District Forum and hence the interest in the form of damages is to be paid at the rate of 18% per annum. As the amount of Rs. 8,000/- has been paid with interest at the rate of 6% per annum upto 23.5.1995, therefore, interest at the rate of 12% per annum more shall be paid from the date of respective deposits till 23.5.1995 on a sum of Rs. 8,000/-. On rest amount of Rs. 6,520/- interest will be paid from the date of deposit till the date of payment at the rate of 18% per annum.

Learned Counsel has tried to argue on the merits of the case. The National Commission, in the case of Pramod Kumar Bothra v. Ishwar Chand Sharma, I (1996) CPJ 149 (NC), held that if the appellant neither entered appearance personally or through an authorised agent, despite being served of the notice nor filed written statement of the case within the time allowed then if no written version was filed before the District Forum, no evidence or material can be looked upon a plea not put forward and the appellant cannot be allowed to refer to that version in the Memorandum of Appeal to contend that the findings recorded by the State Commission are not correct. Thus this argument cannot be considered.

THUS we find that the appeal has no force and is liable to be dismissed. ORDER The appeal is dismissed and the judgment and order of the learned District Forum are confirmed.

THE appellant shall pay to the complainant damages in the form of interest at the rate of 12% per annum on Rs. 8,000/- from the date of respective deposit till 23.5.1995 and on Rs. 6,520/- from the respective date of depositing at the rate of 18% per annum till the date of payment. THE appellant shall pay Rs. 1,000/- as cost of this appeal to the opposite party. Compliance of this order be made within a period of two months from the date of this order. Let copy of this order be made available to the parties. Appeal dismissed with costs.