Jai Lakshmi Cooperative Bank Ltd. Vs. L.C. Dhingra - Court Judgment

SooperKanoon Citationsooperkanoon.com/1113255
CourtDelhi State Consumer Disputes Redressal Commission SCDRC New Delhi
Decided OnJan-23-2001
Case NumberAppeal No. A-196 of 1995
JudgeLOKESHWAR PRASAD, PRESIDENT & MR. S.P. SABERWAL, MEMBER
AppellantJai Lakshmi Cooperative Bank Ltd.
RespondentL.C. Dhingra
Excerpt:
consumer protection act, 1986 - section 15 - cases referred: 1999 (3) cpj 1 (sc)=1999 (7) slt 146=1986-99 consumer. 4943 (ns). 1997 (1) cpj 64 (nc)=1997 (1) ccc 91 (nc). 2000 (1) cpj 19 (sc)=2000 (2) slt 520. comparative citation: 2001 (3) cpj 320s.p. saberwal, member: 1. by this order we shall dispose of application dated 26.7.1995 filed by respondent (hereinafter referred to as the applicant). 2. in the said application, it is stated that applicant came later on 26.7.1995 due to traffic jam and his car was punctured and that his case was called and he was proceeded ex-parte. that non-appearance of applicant and his counsel at the time, this case was called, was neither malafide nor intentional but the absence was only due to the above reasons. it is, therefore, prayed that order dated 26.7.1995 proceeding ex-parte against the applicant/respondent in this appeal be set aside in the interest of justice. 3. this application has been contested by the appellant by filing reply. in reply, it is stated that there is no provision in the consumer protection act, 1986 (hereinafter referred to as the act) to grant the relief prayed for by the applicant and as such this application is liable to be dismissed. on merits, it is stated that a concocted story has been written just to create ground for setting aside the order of this commission dated 26.7.1995 whereby respondent/applicant was proceeded ex-parte in the present appeal. 4. appellant jai lakshmi cooperative bank ltd. had filed an appeal under section 15 of the act challenging the order of district forum-i whereby appellant bank was directed to pay rs. 95,000/- to the respondent along with interest @ 12% p.a. w.e.f. 19.11.1990 till date of payment and rs. 500/- as cost of litigation. 5. notice of the appeal filed by the appellant bank was directed to be issued to be respondent on 26.7.1995. on 26.7.1995 it was observed by this commission that registered cover containing notice issued to the respondent had not been received back undelivered and accordingly the service was presumed. since respondent failed to appear, he was proceeded ex-parte vide order dated 26.7.1995. it is also recorded that applicant/respondent had appeared with his counsel on the same day i.e. 26.7.1995. applicant/respondent had also filed reply to the memorandum of appeal. 6. we have heard arguments advanced by applicant and mr. ashok mahipal, learned counsel for the appellant. 7. it is contended by learned counsel for the appellant that there is no provision in the act vide which the order dated 26.7.1995 proceeding ex-parte against applicant could be set aside. 8. the question for consideration before the honble supreme court in case titled jyotsana arvind kumar shah and ors. v. bombay hospital trust, reported as iii (1999) cpj 1 (sc)=vii (1999) slt 146=1986-99 consumer 4943 (n.s.), was whether the state commission, maharashtra had acted within its jurisdiction by setting aside ex-parte reasoned final order. it was held by honble supreme court that since under the consumer protection act, 1986, the redresssal agencies have no power to recall or review their orders, state commission, maharashtra had erred in setting aside ex-parte reasoned final order. in case titled director, forest research institute v. sunshine enterprises and anr., i (1997) cpj 64 (nc)=(1997) 1 ccc 91 (nc), the final reasoned order had been passed ex-parte and it was held by the national commission that since the fora constituted under the act had no power to review or recall its orders, therefore, even an ex-parte reasoned final order could not be set aside by redressal agencies under the act. both the aforesaid rulings are not applicable in the present appeal case as the case is still at preliminary stage. registered envelop containing notice issued to the respondent was not received back undelivered and accordingly the service was presumed and as respondent failed to appear on 26.7.1995, he was proceeded ex-parte and case was fixed for final arguments on 19.12.1995. 9. it is pertinent to point out that applicant/respondent had appeared along with his counsel on the same day which fact stands recorded in the order dated 26.7.1995 passed later on. file also shows that applicant/respondent had filed reply to the memorandum of appeal. it is also stated that due to traffic jam and the fact that applicants car had been punctured, he could not appear before the commission when the case was called. the application is supported by an affidavit. as such, we find no hesitation in holding that there was sufficient cause for non-appearance of the applicant/respondent when the case was called on 26.7.1995 and applicant/respondent was proceeded ex-parte. 10. in this case, prayer is for setting aside the ex-parte proceedings against the applicant/respondent dated 26.7.1995 as distinguished from a final ex-parte reasoned order. in fact, it is in consonance with the tenets of justice that a reasonable opportunity of being heard be assigned to all the parties and no party should be condemned unheard. the honble supreme court in recent decision, in case titled new india assurance co. ltd. v. r. srinivasan, reported as i (2000) cpj 19 (sc)= ii (2000) slt 520, has held that interest of justice cannot be defeated by rule of technicality. in the aforesaid their lordships of the honble supreme court have held in clear-cut terms that the rules of procedure are intended to serve the ends of justice and not to defeat the dispensation of justice. the above decision of the honble supreme court virtually clinches the matter finally. 11. in view of the aforesaid decision and findings, we allow application of the applicant and set aside the order dated 26.7.1995 proceeding ex-parte against the applicant/respondent in the present appeal. in view of the fact that applicant/respondent had filed reply to the memorandum of appeal on the same date i.e. 26.7.1995, there is no order as to costs. appeal allowed.
Judgment:

S.P. Saberwal, Member:

1. By this order we shall dispose of application dated 26.7.1995 filed by respondent (hereinafter referred to as the applicant).

2. In the said application, it is stated that applicant came later on 26.7.1995 due to traffic jam and his car was punctured and that his case was called and he was proceeded ex-parte. That non-appearance of applicant and his Counsel at the time, this case was called, was neither malafide nor intentional but the absence was only due to the above reasons. It is, therefore, prayed that order dated 26.7.1995 proceeding ex-parte against the applicant/respondent in this appeal be set aside in the interest of justice.

3. This application has been contested by the appellant by filing reply. In reply, it is stated that there is no provision in the Consumer Protection Act, 1986 (hereinafter referred to as the Act) to grant the relief prayed for by the applicant and as such this application is liable to be dismissed. On merits, it is stated that a concocted story has been written just to create ground for setting aside the order of this Commission dated 26.7.1995 whereby respondent/applicant was proceeded ex-parte in the present appeal.

4. Appellant Jai Lakshmi Cooperative Bank Ltd. had filed an appeal under Section 15 of the Act challenging the order of District Forum-I whereby appellant Bank was directed to pay Rs. 95,000/- to the respondent along with interest @ 12% p.a. w.e.f. 19.11.1990 till date of payment and Rs. 500/- as cost of litigation.

5. Notice of the appeal filed by the appellant Bank was directed to be issued to be respondent on 26.7.1995. On 26.7.1995 it was observed by this Commission that registered cover containing notice issued to the respondent had not been received back undelivered and accordingly the service was presumed. Since respondent failed to appear, he was proceeded ex-parte vide order dated 26.7.1995. It is also recorded that applicant/respondent had appeared with his Counsel on the same day i.e. 26.7.1995. Applicant/respondent had also filed reply to the memorandum of appeal.

6. We have heard arguments advanced by applicant and Mr. Ashok Mahipal, learned Counsel for the appellant.

7. It is contended by learned Counsel for the appellant that there is no provision in the Act vide which the order dated 26.7.1995 proceeding ex-parte against applicant could be set aside.

8. The question for consideration before the Honble Supreme Court in case titled Jyotsana Arvind Kumar Shah and Ors. v. Bombay Hospital Trust, reported as III (1999) CPJ 1 (SC)=VII (1999) SLT 146=1986-99 Consumer 4943 (N.S.), was whether the State Commission, Maharashtra had acted within its jurisdiction by setting aside ex-parte reasoned final order. It was held by Honble Supreme Court that since under the Consumer Protection Act, 1986, the redresssal agencies have no power to recall or review their orders, State Commission, Maharashtra had erred in setting aside ex-parte reasoned final order. In case titled Director, Forest Research Institute v. Sunshine Enterprises and Anr., I (1997) CPJ 64 (NC)=(1997) 1 CCC 91 (NC), the final reasoned order had been passed ex-parte and it was held by the National Commission that since the Fora constituted under the Act had no power to review or recall its orders, therefore, even an ex-parte reasoned final order could not be set aside by redressal agencies under the Act. Both the aforesaid rulings are not applicable in the present appeal case as the case is still at preliminary stage. Registered envelop containing notice issued to the respondent was not received back undelivered and accordingly the service was presumed and as respondent failed to appear on 26.7.1995, he was proceeded ex-parte and case was fixed for final arguments on 19.12.1995.

9. It is pertinent to point out that applicant/respondent had appeared along with his Counsel on the same day which fact stands recorded in the order dated 26.7.1995 passed later on. File also shows that applicant/respondent had filed reply to the memorandum of appeal. It is also stated that due to traffic jam and the fact that applicants car had been punctured, he could not appear before the Commission when the case was called. The application is supported by an affidavit. As such, we find no hesitation in holding that there was sufficient cause for non-appearance of the applicant/respondent when the case was called on 26.7.1995 and applicant/respondent was proceeded ex-parte.

10. In this case, prayer is for setting aside the ex-parte proceedings against the applicant/respondent dated 26.7.1995 as distinguished from a final ex-parte reasoned order. In fact, it is in consonance with the tenets of justice that a reasonable opportunity of being heard be assigned to all the parties and no party should be condemned unheard. The Honble Supreme Court in recent decision, in case titled New India Assurance Co. Ltd. v. R. Srinivasan, reported as I (2000) CPJ 19 (SC)= II (2000) SLT 520, has held that interest of justice cannot be defeated by rule of technicality. In the aforesaid their lordships of the Honble Supreme Court have held in clear-cut terms that the rules of procedure are intended to serve the ends of justice and not to defeat the dispensation of justice. The above decision of the Honble Supreme Court virtually clinches the matter finally.

11. In view of the aforesaid decision and findings, we allow application of the applicant and set aside the order dated 26.7.1995 proceeding ex-parte against the applicant/respondent in the present appeal. In view of the fact that applicant/respondent had filed reply to the memorandum of appeal on the same date i.e. 26.7.1995, there is no order as to costs.

Appeal allowed.