Madhya Pradesh

StateCommission

FA/13/1130

BLUE STAR LTD - Complainant(s)

Versus

HOTEL DEV INTERNATIONAL - Opp.Party(s)

SH. U. PALNITKAR

22 Aug 2022

ORDER

M. P. STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,                         

                             PLOT NO.76, ARERA HILLS, BHOPAL

                                         

                                 FIRST APPEAL NO. 1130 OF 2013

(Arising out of order dated 29.05.2013 passed in C.C.No. 45/2013 by District Commission, Chhindwara)

 

BLUE STAR LIMITED,

STAR ARCADE, SECOND FLOOR,

PLOT NO.165A & 166,

ZONE-I, M.P.NAGAR, BHOPAL.                                                                ...        APPELLANT

 

                      Versus

 

HOTEL DEV INTERNATIONAL,

RCM TOWERS, OPPOSITE AMMA HOSPITAL,

KHAJARI ROAD, CHHINDWARA,

THROUGH DIRECTOR SUNIL MIGLANI

S/O SHRI BALDEV MIGLANI.                                                                    …       RESPONDENT     

                     

                                                                           

BEFORE :

 

            HON’BLE SHRI A. K. TIWARI            :          PRESIDING MEMBER

            HON’BLE DR. SRIKANT PANDEY    :        MEMBER

                     

COUNSEL FOR PARTIES :

 

                 Shri Uday Palnikar, learned counsel for the appellant.

            None for the respondent.

 

                                             O R D E R

                             (Passed On 22.08.2022)

                   The following order of the Commission was delivered by A. K. Tiwari, Presiding Member:

    

                       This appeal filed by the opposite party/appellant is directed against the order dated 29.05.2013 passed by the District Consumer Disputes Redressal Commission, Chhindwara (For short ‘District

 

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Commission’) in C.C.No.45/2013 whereby the District Commission has allowed the complaint filed by the complainant/respondent. 

2.                Facts of the case in short as stated by the complainant/respondent are that the complainant is engaged in business of running a hotel towards self-employment. The complainant stated that he had purchased air conditioners of 100 tons from the opposite party/appellant which were installed in his hotel on 09.11.2010. After installation on 12.05.2011 first time problems came in AC and thereafter he informed the opposite party regarding problems continuously. It is alleged that on complaints being made, the opposite party replaced PCB and compressors during warranty period, but the defects were not rectified and continued. It is further alleged that opposite party assured the complainant to take Annual Maintenance Contract (AMC) after which better service would be offered. On the assurance of the opposite party, the complainant took AMC facility from the opposite party after depositing Rs.1,43,390/-, who assured that AMC would start from 01.04.2012 but in the bill dated 24.03.2012  the time limit for AMC was fixed from 01.03.2012 to 28.02.2013 which was unfair and the complainant made a request to adjust the date. On 02.06.2012, complainant wrote a letter to the opposite party to terminate the AMC and sought refund of balance price paid for the AMC of 9 months. He therefore filed a complaint alleging deficiency in service on part of opposite party

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seeking relief of refund of Rs.1,07,543/- the AMC remaining amount of 9 months, compensation of Rs.1,00,000/- towards mental agony, Rs.50,000/- towards financial loss for not providing AMC facility, Rs.5,000/- towards communication expenses and Rs.2,000/- towards notice expenses totaling Rs.2,64,543/-.

3.                The opposite party/appellant remained absent despite notice, therefore proceeded ex-parte by the District Commission.

4.                The District Commission allowed the complaint filed by the complainant/respondent holding the opposite party/appellant deficient in service and directed the opposite party/appellant to pay Rs.97,500/- along with 10% interest from 02.06.2012. Compensation of Rs.15,000/- with costs of Rs.1,000/- has also been awarded.

5.                Heard learned counsel for the appellant. Perused the record.

6.                Learned counsel for the opposite party/appellant argued that the District Commission ought to have considered the fact that running a hotel with total air conditioning capacity of 100 tons cannot come within the definition of self-employment. Complainant/respondent has engaged more than 30 persons and the same can definitely not be termed as self-employment for livelihood. He further argued that the District Commission failed to appreciate that the complainant availed services for commercial

 

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purpose and ought to have dismissed the complaint at the threshold. The impugned order is illegal and is liable to be set-aside.

7.                During the pendency of appeal, learned counsel for the appellant has filed an application under Order 41 Rule 27 of CPC along with certain documents. He argued that the application be allowed and documents be taken on record.

8.                After hearing learned counsel for the appellant and on going through the record and the impugned order we find from the order sheet dated 05.03.2013 that the opposite party/appellant did not appear in forenoon despite service and therefore, the District Commission ordered to be proceeded ex-parte against the opposite party, however, in afternoon counsel appeared on behalf of opposite party and sought time to file reply. The District Commission therefore ordered not to proceed ex-parte against the opposite party and had given time to opposite party/appellant to file reply.  Thereafter on 04.04.2013 and 16.04.2013 counsel appeared on behalf of opposite party but did not file reply. On the next date 30.04.2013 till 4.30 pm when none appeared for the opposite party, the District Commission again proceeded ex-parte against the opposite party/appellant. Thereafter also no one appeared for the opposite party on 08.05.2013 and 14.05.2013 and on 29.05.2013 the case was finally decided.

 

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9.                Learned counsel for the opposite party/appellant appeared before the District Commission on 05.03.2013, 04.04.2013 and 16.04.2013 but not filed reply despite grant of several opportunities. However, none appeared for the opposite party/appellant on 30.04.2013 and thereafter. In appeal, learned counsel for the appellant argued on merits of the case and has prayed for setting aside the impugned order.  However, from  paragraph 1 to 9, the grounds of appeal we find that there is no prayer for setting aside the ex-parte order, therefore the opposite party/appellant cannot argue or challenge the impugned order on merits, when despite of several opportunities, no written statement/reply was filed before the District Commission. It is also to be noted that no relief permitting to file written statement/reply or setting aside ex-parte impugned order is sought as is explicitly clear from paragraph 1 to 9 of grounds of appeal. Until and unless the order proceeding ex-parte against opposite party/appellant was not set-aside, other grounds on merits of the case cannot be raised in appeal and cannot be considered since no reply/written statement was filed before the District Commission.

10.              So far as the argument of the learned counsel for the opposite party/appellant that the complainant is engaged in running hotel for commercial purpose and therefore, he cannot be termed as consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986 is

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concerned, the complainant in para 1 of his affidavit has stated that he is running hotel for earning his livelihood. However, this point on merits also cannot be considered when there is no rebuttal of the opposite party/appellant before the District Commission. The same principle will again follow that until and unless the order proceeding ex-parte against opposite party is not set-aside, no grounds on merits, more particularly when not raised before the District Commission cannot be considered.

11.              Similarly, the application filed by the appellant under Order 41 Rule 27 of CPC before this Commission along with documents, can also not considered until and unless the order proceeding ex-parte against the appellant is not set-aside.  The appellant was proceeded ex-parte before the District Commission and neither the appellant made any application for setting aside the order proceeding ex-parte nor that order was set aside. In such circumstances, if the application under Order 41 Rule 27 of CPC filed by the opposite party/appellant will be allowed then it will amount reopening of the case which cannot be permitted owing to the fact mentioned above.

12.              In view of the above discussion, we do not find any reason to interfere in the impugned order.

13.              In the result, the appeal is hereby dismissed.  No order as to costs.                      

                    

                       (A. K. Tiwari)                  (Dr.Srikant Pandey)           

                  Presiding Member                     Member