PPEARED AT THE TIME OF ARGUMENTS

PRONOUNCED ON :  16^th JANUARY 2018

O R D E R

PER DR. B.C. GUPTA, MEMBER

          This first appeal has been filed under section 19, read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 06.03.2017, passed by the West Bengal State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in consumer complaint No. CC/212/2015, vide which, the appellants/opposite parties (OPs) were ordered to be proceeded against exparte (although they were very much present before the State Commission) for their failure to file reply before the State Commission to the interrogatories submitted by the complainant.

2.       The present respondent/complainant, the Association of Surgeons of India (West Bengal State Chapter) filed a consumer complaint CC/212/2015 against the appellants, who run a hotel-cum-resort at Kona expressway, Howrah (West Bengal), stating that they had organised the third National Conference of Association of Breast Surgeons of India, namely, ABSICON 2014 and placed their requirement with the OPs for booking of 60 rooms for their National/International delegates and guests attending the said National Conference from 12 to 15 June 2014.  They had also placed their requirement regarding food, exhibition area, conference hall, technical support etc. Alleging negligence on the part of the appellants/OPs, resulting in complete breakdown of the air-conditioning system of the Hotel, the complainant filed the consumer complaint in question, seeking refund of ₹17 lakh as consideration money paid to them and ₹20 lakh as compensation for harassment etc. and litigation cost of ₹3 lakhs.

3.       The complaint was resisted by the appellants/OPs by filing a written statement before the State Commission.  The evidence etc. were also filed on behalf of both the parties. During the course of proceedings before the State Commission, both the parties were asked to supply a list of interrogatories, upon which the respective parties were to give their replies.  It is stated that the appellants/OPs failed to submit reply to the interrogatories, despite giving numerous opportunities to them.  Accordingly, the State Commission passed the following order on 6.03.2017:-

“Ld. Advocates for both parties are present.  Cost has been paid. Receipt is submitted and kept with the record. Ld. Advocate appearing on behalf of the OPs did not submit any reply in spite of allowing 3 successive dates for filing reply. The parties are reluctant to file the reply. The case shall proceed ex parte against the OPs. Fix 04.04.17 for ex parte hearing.”

3.       A miscellaneous application No. MA/304/2017 was filed by the appellants/OPs before the State Commission, seeking recall of the said exparte order, stating that the reply to the questionnaire could not be filed due to the prolonged illness of their Advocate.  However, the State Commission, vide their order dated 26.04.2017, stated that they had no powers to review their own order.  The State Commission listed the case for 29.06.2017 for exparte hearing.  The present appeal has been filed challenging the orders dated 06.03.2017 and 26.04.2017 passed by the State Commission. 

4.       It was contended by the learned counsel for the appellants/OPs that the State Commission could not have passed the order, proceeding exparte against them, as they were very much present before the State Commission on 06.03.2017.  The learned counsel further submitted that the reply to the interrogatories could not be filed in time, as their counsel was unwell and they had produced documents in support of the fact that the said counsel had obtained medical treatment during that period.  The learned counsel further stated that despite his illness, their counsel was present on the date of hearing, i.e., 06.03.2017.  The said counsel asked for a pass-over from the Bench, during which he wanted to get the reply notarised from the Notary Public and file it before the State Commission on that very day.  However, the State Commission refused to give him a chance to do the needful. 

5.       Per contra, the learned counsel for the respondent stated that as made out from the impugned order dated 06.03.2017, the appellants/OPs failed to submit reply to the interrogatories despite giving 3 opportunities.  On 06.03.2017 itself, their counsel appeared but did not file any reply.  The learned counsel, however, stated that the appellants/OPs could not be ordered to be proceeded exparte, since their counsel was very much present on 06.03.2017. 

6.       We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

7.       A simple perusal of the impugned order dated 06.03.2017 indicates that Sh. Harpal Singh Advocate was present on that date before the State Commission representing the appellants/OPs.  We fail to understand, therefore, how the State Commission passed an order, proceeding exparte against the appellants/OPs, when their counsel was present before them.  At best, the State Commission could have closed the right  of the appellants/OPs to file the required documents, but they could not have proceeded exparte against the appellants/OPs.  The impugned order passed by the State Commission is, therefore, perverse in the eyes of law and deserves to be set aside on this ground alone and we order accordingly. 

8.       The appellants/OPs have made it clear in their memo of appeal that their Advocate had since long been suffering from severe cervical and lumber spondylitis and that he had been advised complete bed-rest during those days.  However, despite his severe pain and agony, he prepared the reply to the questionnaire, got it signed and appeared before the State Commission on 06.03.2017.  The said Advocate made a request for a pass-over on that date, stating that the reply was to be got notarised from the Notary Public and then filed before the State Commission.  Keeping in view such circumstances, the State Commission should have allowed the appellants/OPs to submit the said reply and then proceed further with the case. 

9.       Looking at the facts and circumstances of the case, therefore, this appeal is allowed, the order dated 06.03.2017 of the State Commission is set aside and the case is remitted back to that Commission with the directions that they shall take the reply to the interrogatories filed by the OPs on record, and then proceed with the matter further in accordance with law.  The first appeal stands disposed off in the above terms.