Punjab

StateCommission

RP/80/2022

Punjab National Bank - Complainant(s)

Versus

Bakhtawar Singh and Others - Opp.Party(s)

Harsh Garg

03 Apr 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,    PUNJAB, CHANDIGARH

 

                                                         Misc. Application No.68 of 2023

                                             In/and

                                                             Revision Petition No.80 of 2022

                                    

                                                                                 Date of Institution  :       22.11.2022

                                                              Date of Reserve              :       16.03.2023

                                                                         Date of Decision    :       03.04.2023

 

Punjab National Bank, PS Mann Tower, Jagraon Road, Mehatpur, Tehsil Nakodar, District Jalandhar through its Deputy Manager Sh.Harmesh Lal, aged 51 years, son of Late Sh.Kishan Dass.

….Petitioner/Opposite Party No.1

Versus

 

1. Bakhtawar Singh son of Sh.Kartar Singh, resident of Village Gonsuwal, PO Ummarawal Billa, Mehatpur, Tehsil Nakodar, District Jalandhar.

                                  …………..Respondent No.1/complainant

2. PNB Metlife India Insurance Co. Ltd., Unit No.T, F-3, 3^rd Floor, Eminent Mall Complex, near Guru Nanak Mission Chowk, Jalandhar-144 001.
3. PNB Metlife India Insurance Co. Ltd., Office Unit No.101, 1^st Floor, Techniplex Complex-1, Veer Savarkar Flyover, Off SV Road, Goregaon West, Mumbai-400062.

……..Respondents No.2&3/OPs No.2&3

Revision Petition against the order dated 05.10.2021 of the District Consumer Disputes Redressal Commission, Jalandhar.

Quorum:-     

       Hon’ble Mrs. Justice Daya Chaudhary, President

                               Ms.  Simarjot Kaur, Member    

     

Present:-

         For the petitioner       :  Sh.Mohinder Singh, Advocate

         For respondent No.1  :  Ms.Anu Dhiman, Advocate for

                                                     Sh.T.K.Badhan, Advocate

 

SIMARJOT KAUR, MEMBER

M.A.No.68 of 2023 (Delay) & Main Case

          The present revision petition has been filed by the petitioner-Punjab National Bank to challenge the order dated 05.10.2021 passed by District Consumer Disputes Redressal Forum, Jalandhar (in short, “the District Forum”), whereby the petitioner/OP No.1 was proceeded against ex-parte.

2.                There is delay of 409 days in filing the Revision Petition. M.A.No.68 of 2023 was filed which was supported by an affidavit.

3.                It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.

4.                Brief the facts of the case as made out by the complainant/respondent No.1 before the District Commission and the same are necessary for disposal of the present Revision Petition are that complainant filed CC No.131 of 2021 before the District Commission stating therein with the prayer as reproduced as under:-

            “The opposite parties may please be directed to pay the amount of Rs.60,000/- along with interest to the tune of 9% per annum to the complainant on account of amount deposited by complainant for FDR and further directions may be issued to the opposite parties to pay a compensation for the tune of Rs.2,00,000/- on account of mental harassment plus Rs.25,000/- as litigation expenses.”

 

5.                In the said complaint notice was issued to OP No.1 i.e. petitioner Bank but it was not received back. A period of 30 days had expired but Registered Cover was not received back. By drawing presumption that period of more than 30 days had expired, thus the service was complete. Meaning thereby OP No.1/petitioner was served. However, none appeared on its behalf inspite of service and vide order dated 05.10.2021, petitioner/OP No.1 was proceeded ex-parte by the District Commission.

6.      Subsequently the petitioner came to know about the ex-parte order on 10.10.2022 when an empanelled Advocate Sh.Nitish Arora informed the petitioner bank. Thereafter, immediately Sh.Harmesh Lal was appointed by the petitioner Bank to challenge the ex-parte order dated 05.10.2021 passed by the District Commission. The petitioner bank applied for the certified copy of the order on 12.10.2022, which was prepared and delivered on 14.10.2022.

7.      The delay had occurred in filing of the Revision Petition as the petitioner Bank was not aware about the ex-parte proceedings and thereafter Revision Petition was filed.

8.      While filing the application for condonation of delay along with the Revision Petition it was specifically mentioned that the delay had occurred due to the reasons and circumstances beyond the reach of the petitioner, which was not intentional and deliberate and prayer was made in the application for condonation of delay to condone the delay of 409 days in filing the Revision Petition for which the petitioner would suffer financial loss and injury which could not be compensated in terms of money. The ex-parte order may be set aside and liberty be granted to the petitioner to put his version before the District Commission.  It was also mentioned that petitioner is ready to compensate the opposite party in monetary terms in case the liberty is granted to file reply, evidence put up and argue the case on merits.

9.      Ms.Anu Dhiman, Advocate proxy counsel for the respondent No.1/complainant has appeared in response to the notice issued, but no reply to the application for condonation of delay has been filed.     However, she has opposed the submissions made by learned counsel for the petitioner/OP No.1. The ex-parte order was passed as the petitioner/OP No.1 was duly served but neither the party appeared nor any counsel and by drawing presumption the case was fixed for arguments as the service was complete. Learned counsel also submits that there was inordinate delay in filing the Revision Petition which in itself shows that the petitioner/OP No.1 was not interested in pursuing the litigation and the delay of 409 days in filing the Revision Petition should not be condoned as no sufficient reasons have been mentioned in the application for condonation of delay.

10.    We have heard the arguments raised by learned counsel for the petitioner as well as proxy counsel for the respondent No.1.

11.    We have also carefully perused the ex-parte order dated 05.10.2021 passed by the District Commission and other documents available on the file.

12.    Facts relating to filing of complaint, issuance of notice and thereafter passing of ex-parte order after service and filing of Revision Petition before this Commission are not in dispute. It is also not in dispute that complaint is still pending before the District Commission.

13.    In the application for condonation of delay it has been mentioned that one Amrik Chand, Branch Head had retired on 31.03.2022 and thereafter, Sh.Mayank Swami took the charge of the Bank on 29.04.2021. Further it has been mentioned in the application that newly joined official was not having any knowledge about the pendency of the case and he came to know about the case only on 10.10.2022 when the empanelled Advocate of the Bank Sh.Nitish Arora told him about the ex-parte order dated 05.10.2021 passed by the District Commission. Thereafter, immediately the Branch Head appointed Sh.Harmesl Lal, Deputy Manager to approach the State Commission to challenge the ex-parte order dated 05.10.2021. Thereafter, the petitioner Bank applied for certified copy of the order before the District Commission on 12.10.2022, which was prepared and delivered on 14.10.2022.

14.    Although there is long delay of 409 days in filing the Revision Petition but the complaint is still pending before the District Commission. As per ratio of the decision in a number of cases of this Commission as well as Hon’ble National Commission and Hon’ble Supreme Court of India, wherein it has been held that in case merits in the case, the courts are supposed to be liberal in condoning the delay. Accordingly, the delay of 409 days in filing the Revision Petition is condoned. M.A.No.68 of 2023 is disposed of.

15.              In view of the facts as mentioned, above we find merit in the contentions made by learned counsel for the petitioner. The service was complete but inspite of service none-appeared. However, the reasons have been mentioned that the concerned dealing officer dealing with the case had retired and newly joined official was not having knowledge about the case pending before the District Commission. The Bank Manager was subsequently informed by the empanelled counsel that the case was pending before the District Commission and the petitioner bank had been proceeded ex-parte.

16.              The issue for decision by this Commission is as to whether the ex-parte order dated 18.11.2021 passed by the District Commission is contrary to the principles of natural justice and the same can be set aside by this Commission to meet out the ends of justice to the parties.

17.              We have perused the record of the District Commission and it has not been ascertained as to whether the notice was received by the petitioner/OP No.1 or not? In such eventuality the benefit of doubt goes in favour of petitioner/OP No.1. In the present case, petitioner/OP No.1 was proceeded exparte only on account of presumption of service on the expiry of period of 30 days. Their non-appearance was not willful or otherwise.

18.              The object of service of summons is to apprise the petitioner/OP No.1 about pendency of the case and it is necessary that opposite parties must have knowledge about pendency of the case against them. The petitioner/OPs No.1 has specifically mentioned in the grounds of revision petition that OP No.1 was not having any knowledge of proceedings of the complaint before the District Commission and only on the basis of presumption of service of period of 30 days, it was presumed that service was complete and it was proceeded ex-parte without giving further opportunity. Therefore, in the interest of justice, petitioner/OP No.1 deserves to be granted one more opportunity to contest the case. This Commission being having appellate jurisdiction over the ex-parte proceedings dated 05.10.2021 passed by the District Commission.

19.              The Order 9 Rule 7 of the Code of Civil Procedure (CPC), provides jurisdiction to the Court to set aside ex parte order by imposing costs, is reproduced as under:       

“7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.—

Where the Court has adjourned the hearing of the suit, ex parte, and the defendant, at or before such hearing appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.”    

20.    To attract the provisions of Order 9 Rule 7 of CPC, the appellants are required to show not only bonafide reason for their failure to appear in the Court on the date fixed but also to show as to what injustice has been caused to them. Hon’ble Supreme Court in case “Sangram Singh v. Election Tribunal Kotah & Anr.” AIR 1955 Supreme Court 425, while considering the provisions of Order 9 Rule 6 (1) (a) of CPC, has held as under:

“When the defendant has been served and has been afforded an opportunity of appearing then, if he does not appear, the Court may proceed in his absence. But, be it noted, the Court is not directed to make an ex parte order. Of course the fact that it is proceeding ex parte will be recorded in the minutes of its proceedings but that is merely a statement of the fact and is not an order made against the defendant in the sense of an ex parte decree or other ex parte order which the Court is authorised to make. All that Rule 6(1)(a) (of Order 9) does is to remove a bar and no more. It merely authorises the Court to do that which it could not have done without this authority, namely, to proceed in the absence of one of the parties. The contrast in language between Rules 7 and 13 emphasises this.”

21.             Said judgment was relied upon by the Hon’ble Punjab and Haryana High Court in a case titled as “Smt. Sahib Kaur Vs. Sukhbir Singh & others” Civil Revision No.1700 of 2004, decided on 25.05.2016 (Punjab & Haryana High Court) and the relevant para No.8 of the judgment is reproduced as under:-

“8. In the circumstances, even if the ex parte order was not set aside, the petitioner ought to have at least been allowed to join the proceedings at the stage at which they were. In any case, in the peculiar facts and circumstances of the case and particularly the fact that the learned trial Court considered the delay in filing the application seeking setting aside the ex parte proceedings to be belated, it is considered just and expedient that the ex parte order should be set aside so as to enable the petitioner to file her written statement and contest the suit of the plaintiff on merits.”

22.             The power of the Court to set aside ex parte order can be by imposing reasonable costs which the Court can put the party on certain terms as spelled out from the expression “upon such terms as the Court directs as to costs or otherwise”. The Hon’ble Supreme Court in judgment of case “G.P. Srivastava Vs. Shri R.K. Raizada & others” Special Leave Petition (Civil)17942-43 of 1999, decided on 03.03.2000 has held as under:-

“Even if the appellant was found to be negligent, the other side could have been compensated by costs and the ex-parte decree set aside on such other terms and conditions as were deemed proper by the Trial Court. On account of the unrealistic and technical approach adopted by the courts, the litigation between the parties has unnecessarily been prolonged for about 17 years. The ends of justice can be met only if the appellant- defendant is allowed opportunity to prove his case within a reasonable time. Under the circumstances, the appeal is allowed by setting aside the order of the High Court and of the Trial Court. The ex-parte Judgment and decree passed against the appellant is set aside on payment of costs of Rs.5,000/- to the other side. The Trial Court is directed to afford the appellant opportunity to prove his case and expedite the disposal of the suit preferably within a period of six months from the date of receipt of the copy of this order.”

23.             In view of facts and the judgments as mentioned above and in the interest of justice to prevent the miscarriage of justice and also to meet the ends of justice one more opportunity is granted to the petitioner to put up their case before the District Commission by setting aside the exparte proceedings dated 05.10.2021 but subject to payment of costs and moreover no prejudice would be caused to respondent No.1/complainant. Otherwise also, the natural justice demands that no one should be left unheard and adequate opportunity is required to be granted to the parties to the case. Accordingly, we are of the considered view that the impugned order dated 05.10.2021 is liable to be set aside without touching the merits of the case.

24.             As a sequel of above discussion and by considering the facts and circumstances of the case, the revision petition is allowed and the exparte order dated 05.10.2021 passed by the District Commission is set aside, subject to payment of costs of Rs.10,000/-, out of which Rs.5,000/- be given to the respondent No.1/complainant and Rs.5,000/- be deposited in the Consumer Legal Aid Account of the District Commission by the petitioner. The District Commission is also directed to allow petitioner/OP No.1 to file reply and lead evidence in support of its defence within a period of 30 days from today and thereafter allow the respondent No.1/complainant to file rejoinder and rebuttal evidence, if any.  The District Commission is directed to ensure the costs imposed is deposited/paid before taking the written reply/evidence. It goes without saying that if the written reply/evidence is not filed within the stipulated period of 30 days from today or if the cost imposed is not paid within the stipulated period of 30 days from today, the written reply of the OP No.1 shall not be taken on record for consideration, and the District Commission shall so proceed further with the adjudication of the case.

25.              Since the Revision Petition is allowed, as such the pending applications if any are also disposed of.

26.             The Registry is directed to send a copy each of this Order to the parties in the Revision Petition and to their counsel immediately. The Registry is also directed to forthwith communicate the Order to the District Commission by the fastest mode available i.e. email. Dasti, in addition, to facilitate timely immediately.

 

 

                                                                                                 (JUSTICE DAYA CHAUDHARY)

                                                                                                                                                  PRESIDENT

 

 

                                                                                                            (SIMARJOT KAUR)

                                                                                                                                                      MEMBER

 

 

April 03, 2023                                                 

 (Rupinder 2)