This appeal is directed against order no. 39 dated 25.6.19 delivered by the Ld. DCDRF, Siliguri in reference to cc no. 56/s/2015. The fact of the case in nutshell is that the respondent D Bhattacharya registered a consumer complaint against the manager and managing director of HDFC standard life insurance and Birla SunLife insurance. Consumer complainant D Bhattacharya in his consumer complaint highlighted the points that being a retired person, he purchased various insurance policies form op no. 1 and 2 to the tune of rupees 5,64,000.74 only. Prior to that investment, he initiated three investment plans with Birla Sunlife for consolidated amount Rs. 1,25000. Besides the same investment he had to pay another one lakh to fulfil IRD norms for getting bonus and he was asked to invest more money with others financial company for a return of promised bonus and thereafter he was defrauded by the two financial companies. For that reasons, he prayed for certain reliefs against the HDFC Standard life’s and Birla Sunlife corporation.  The consumer complaint was registered before the Ld. DCDRF, Siliguri and the same was admitted on its merit. The Ops of that case was served notice asking them to contest the case. Accordingly, the OPs recorded their presence before the Ld. Forum. The OP no. 1 and 2 filed the WV in due time. Subsequently Op no. 3 and 4 also submitted their WV and thereafter the process of recoding evidence was started there. After conclusion of recording evidences, Ld. Forum placed the case for argument. The argument was completed on 5/9/2016. 20/9/2016 was fixed for delivery of judgment. On 20/9/2016 Ld. Forum was satisfied that further hearing was necessary after procuring some documents from that parties to the case. Thereafter several dates were elapsed where hearing of the case could not be completed.  Thereafter the complainant filed two separate petitions dated 25/3/2019 and 4/4/2019 before the Ld. Forum. Ld. Forum heard said two petitions on 17/6/2019 after obtaining the written objections from the side of Op no. 1 and 2 and said two petitions were disposed of by the Ld. Forum vide order no 39 dated 25/6/2019 which is challenged in the appeal by the OP no. 1 and 2 of that case i.e. manager and managing director of HDFC Life Insurance. The appeal follows on the grounds  that the petition of the complainant dated 25/3/2019 and 4/4/2019  was related to prayer for withdrawal of consumer compliant case under the Provision of Order XXIII Rule 1 of CP Code and the said petition was entertained by the Ld. Forum which was erroneous, irregular and not vested with the law and such order of Ld. Forum dated 26/6/2019 should be set aside. Respondent D Bhattacharya was served notice after admission of the appeal who was asked to contest the appeal on merit. Accordingly, the Ld. Advocate J Ganguly records the presence of respondent D Bhattacharya to conduct the hearing of the case. Accordingly, the appeal was heard in presence of Ld. Advocate Mr. Milindo Paul and Ld. Advocate J Ganguly on behalf of appellant and respondent. 

Decision with reasons,

Ld. Advocate at the time of hearing the appeal mentioned that according to Provision of Order XXIII Rule 1 and sub-rule 3 of CP Code which postulates where the court is satisfied :- (a) that a suit must fail  by a reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. He submits that this provision of CPC dose not attract in the particular case as because in petition of the complainant dated 25/03/2019 and 04/06/2019 has not sufficiently mentioned about what was the formal defects in the consumer complaint. He only mentioned the typographical/clerical defects and for that reasons, he prayed for withdrawal of the case while the CP Code only allows the plaintiff to withdraw the suit if there was formal, defects in the body of that plaint. He further submits that the evidences of the case has already recorded and the argument of both sides was also heard by the Ld. Forum and thereafter the Ld. forum had no opportunity to entertain the petition of the complainant dated 25/03/2019 and 04/06/2019.

He further submits that the typographical defects or clerical errors can be cured by way of amendment of consumer complaint and there was no necessity to withdraw the case at the final stage. He referred judicial decision of Hon’ble High Court of H.P. dated 27/4/2019 where it was held that the plaintiff could move an application under order 6 rule 17 CPC, seeking amendment of plaint instead of moving an application for withdrawal of the suit and the court should not entertain an application under Provision of Order XXIII Rule 1 of CP Code where the parties to the suit tried to realise the weakness of their suit.

He further submits that Consumer Protection Act has given very limited scope to apply all the provisions of CP code. The provisions of Order XXIII Rule 1 of CP Code is not applicable under the process of adjudication of a consumer complaint under the CP: Act, 1986. Ld. Advocate of the respondent at the time of hearing submits that consumer complainant had every right to withdraw consumer complaint before its final disposal if he thinks that there are some irregularity or inherent defects  in their pleading and they can seek the permission of the Forum  to bring a new consumer complaint afresh and this privilege cannot be curtailed by the Ld. Forum for the purpose of natural justice while the consumer complainant/respondent found that without a fresh consumer complaint he had no chance to cure the defects by way of amendment and for that reason, he submitted a prayer before the Ld. Forum for permitting him to withdraw the consumer complaint and the Ld. Forum has rightly observed that the complainant had every right to withdraw the consumer complaint to sue afresh and this order of Ld. Forum does not suffer from any defects and the appeal should be dismissed.

After hearing of valuable arguments of both sides through Ld. Advocate of the appellant Mr. Milindo Paul and Ld. Advocate of the respondent J Ganguly and after perusing the contents of the petition of complainant and its written objection, we find that the complainant in his petition never specified as to why the formal defects in the consumer complainant could not be cured or rectified by way of amendment petition. Rather the consumer complainant mentioned in their petition that there was some error and typographical mistakes in the consumer complaint and for that reason, he wanted to file a new consumer complaint after withdrawing the same. The defects have not been categorically mentioned in the petition dated 25/3/2019. It appears to this Commission that ld. Forum has haphazardly and without going into the  merit of the case has given permission to withdraw the consumer complaint just at the time of delivery of judgment and this attitude of Ld. forum is not appreciable one as because the substantial portion of the evidence was already recorded and valuable argument of the parties to the case was also recorded. Ld. Forum had the opportunity to give sufficient space to the complainant to rectify the defects by way of amendment under order 6 rule 17 of CP Code and the permission given to the complainant to withdraw the case is immature one and unwarranted in the eye of law.

Therefore, the impugned order under appeal delivered by Ld. Forum is liable to be set aside. Thus, the appeal succeeds on merit.

Hence, it is,

Ordered,

That the appeal be and same is hereby allowed on contest without any cost. The order of Ld. DCDRF, Siliguri bearing no. 39 dated 25/6/2019 stands set aside in reference to cc case no. 56/S/2015. The Ld. DCDRF, Siliguri is requested  to give opportunity to the complainant/respondent to rectify the defects of complaint by way of amendment if he desires and thereafter shall obtain the additional WV form the Ops to that consumer complaint case and thereafter the matter should be heard afresh in respect of argument and Ld. Forum shall deliver the final order as soon as practicable. Both parties to that case are asked to appear before the Ld. Forum on 4/12/2019 for obtaining necessary order from the Ld. DCDRF, Siliguri.

Let the order be communicated to Ld. DCDRF, Siliguri by e-mail and the copy of this final order be supplied to the parties free of cost.