Uttar Pradesh

Bareilly-I

MA/30/2022

Vaibhav Singhal - Complainant(s)

Versus

Amit Agrawal - Opp.Party(s)

26 Apr 2024

ORDER

                                                                                 1

DISTRCT CONSUMER DISPUTE REDRESSAL COMMISSION, BAREILLY (First)

 

                            PRESENT : 1- Radhey Shyam Yadav, H.J.S.,  President

                                                 2- Mukta Gupta,                            Member

                                                 3- Prashant Mishra,                       Member

 

                               Miscellaneous Case Number :        30             of      2022

                               (Complaint Case Number  :        281         OF      2021)

 

Vaibhav Singhal, aged about 28 years, son of Praveen Kumar, resident of R 3/60, Second Floor, Rajnagar, Gaziabad, Uttar Pradesh, through : Properitor, Superking Home Appliances, GST Number- 09HOUPS5244M1ZQ, B-11/ 2, Meerut Road, Industrial Area, Site-3, Gaziabad, Uttar Pradesh. (Mobile number:9711282848)

                                                                                                                          ...................... Applicant

 

                                                                  Vs.

 

Amit Agarwal, aged about 36 years, son of Baburam Agarwal, resident of 92, Mohallla- Sahukara, Kasba & P.S. & Post- Fatehganj Pashchimi, Tehsil- Meerganj, District- Bareilly, Uttar Pradesh, through : Properitor, Agarwal Collection, GST Number- 09AGXPA3881G1ZZ, Fatehganj West, Bareilly, Uttar Pradesh. (Mobile Number:9837788075)

                                                                                       .........................(Complainant)/ Opposit Party

 

                                                                                                       Date of Filing       : 20.12.2022

                                                                                                       Date of  decision  :  26.04.2024

 

Counsel for Applicant       :   Mr. Ajai Kumar Vishwakarma, Advocate.

Counsel for Opposit Party :  Mr. Karan Singh Kannaujiya,   Advocate.

 

JUDGMENT

 

1.              The applicant has moved an application under Section 5 of Indian Limitation Act along with the miscellaneous case under Order 9 Rule 13 & Section 151 of the Code of Civil Procedure seeking delay condonation and setting  aside exparte judgment dated 23.05.2022 delivered by the District Commission headed by the then President in complaint case number 281 of 2021 Amit Agarwal versus Vaibhav Singhal.

 

2.              The brief fact of application under section 5 of Indian Limitation Act and miscellaneous case is that the notice in complaint case number 281 of 2021 was not duly served to the applicant. The complaint case was proceeded expeditiously and decided exparte without providing opportunity of hearing to the applicant. The applicant has failed to furnish information and could not attend the hearing due to taking care and treatment of his relative. The patient and relative of applicant died lateron. The lockdown and closure was observed  for about 5-6 months due to Covid -19 in the year 2020. The applicant was unable to acknowledge the proceedings of above mentioned complaint case in the mean time. The applicant was busy in marriage ceremony from  month of September, 2022 upto the month of November, 2022. He could not know about institution of said complaint case due to least appearance at his work place.  The applicant has acknowledged the impugned exparte judgment for the first time after getting recovery certificate issued by the District Commission. The miscellaneous case along with delay condonation application was filed after due inspection of file by learned counsel for applicant. Prayer has been made to condone the delay and set aside the exparte judgment to decide the complaint case on merits.

 

 

3.               None turned up from applicant side in spite of providing several opportunities. The miscellaneous case is held up unnecessarily due to absence and non cooperation of applicant.

 

4.             Learned counsel for opposite party (complainant / decree holder) has submitted that provision of restoration is not available in the Consumer Protection Act. The provision under Order 9 Rule 13 of the Code of Civil Procedure is not applicable in the instant matter. The applicant has preferred an opportunity seeking remedy for delay condonation before the Honourable State Consumer Commission. He has deposited the decretal amount in compliance of order passed by the Honourable State Commission. The execution proceeding has been stayed in compliance of above mentioned Honourable Commission’s order. The applicant was  well acquainted with the proceedings and exparte

2

 

judgment in the above mentioned complaint case. He has deliberately avoided the proceedings and filed the miscellaneous case falsely concealing the fact so as to held up the matter. He has deliberately

not disclosed the fact in regard to seeking remedy before the Honourable Commission. False and frivolous contention has been made in the application under section 5 of Indian Limitation Act and also in the miscellaneous case. Any cogent ground has not been disclosed to entertain the miscellaneous case. Prayer has been made to reject the miscellaneous case along with the delay condonation application imposing special cost to the applicant.

Section 38 (7) reads as follows :

          “Every complaint shall be disposed of as expediciously as possible and endeavour shall be made to decide the complaint within period of three months.”

            The complaint case was expeditiously decided exparty as per law. There is no cogent reason to interfere with the impugned exparte judgment in want of any direction issued by the Honourable State Commission.  The complaint case was decided exparte after due service of notice to the applicant (opposite party in the complaint case). The content of application under section 5 of Indian Limitation Act as well as the miscellaneous case is subject to decision of the Honourable State Commission. Expressing any opinion on merits is not appropriate during pendency of application under section 5 of Limitation Act before the Honourable Commission. The miscellaneous case along with the application under section 5 of Indian Limitation Act may not be entertained without any direction of Honourable State Commission. However the matter may further be proceeded as per direction passed by the Honourable Commission. The application under section 5 of Limitation Act alongwith the miscellaneous case deserves dismissal without expressing any opinion on merits.

 

                                                                ORDER

 

              The miscellaneous case along with the application under section 5 of Indian Limitation Act  shall stand dismissed without expressing any opinion on merits. However disposal of the miscellaneous case as well as application under section 5 of Limitation Act on merits will be subject to decision and direction of Honourable State Commission. The parties shall bear their own cost.

 

 

 

        (Prashant Mishra)                          (Mukta Gupta)                            (Radhey Shyam Yadav)

              Member                                        Member                                              President

District Consumer Dispute Redressal         District Consumer Dispute Redressal                   District Consumer Dispute Redressal

        Commission Bareilly First                             Commission Bareilly First                                 Commission Bareilly First

 

         The judgment was signed and prononced in the open court today on dated 26.04.2024.

 

       (Prashant Mishra)                          (Mukta Gupta)                             (Radhey Shyam Yadav)

              Member                                        Member                                              President

District Consumer Dispute Redressal         District Consumer Dispute Redressal                   District Consumer Dispute Redressal

        Commission Bareilly First                             Commission Bareilly First                                 Commission Bareilly First