PER: HON’BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER

          The instant revision petition under Section 17(1)(b) of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the behest of Opposite Party M/s. Club-7 Holidays Ltd. to impeach the Order No.09 dated 18.04.2018 made by the District Consumer Disputes Redressal Forum, Kolkata, Unit-II (in short, ‘Ld. District Forum’) in an application (which should have been registered as IA/MA) in Consumer Complaint No. 435 of 2017. By the impugned order, the Ld. District Forum rejected the application filed by the Opposite Party challenging the maintainability of the proceeding.

          The Opposite Parties herein being Complainants lodged the complaint under Section 12 of the Act before the Ld. District Forum with prayer for several prayers, Viz. (a) to refund Rs.32,100/-; (b) to pay compensation of Rs.50,000/- and (c) litigation cost of Rs.10,000/- on the allegation of deficiency in services on the part of OP/travel agency in connection with the tour styled as ‘Best of Japan – 7 Nights/8 Days’ from 22.05.2015 to 30.05.2015 for which they have paid a sum of Rs.3,43,500/-.

          After entered appearance, the OP filed a written version and also filed an application challenging the maintainability of the proceeding on several grounds – (a) it is barred by limitation; (b) it is barred by the principal of res-judicata and (c) the Ld. District Forum lacks territorial jurisdiction to entertain the complaint. 

          Having heard both sides, the Ld. District Forum by the impugned order rejected the said application.  To assail the said order, the OP has come up in this Commission with the instant revision petition.

          Mr. Tarun Chakraborty, Ld. Advocate for the Revisionist has submitted that the complaint was admitted by Order No.02 dated 10.11.2007 without issuance of notice upon OP/revisionist though there was an application of condonation of delay and the said application has been allowed without giving an opportunity to the OP/revisionist to participate or to raise objection against the application under Section 24A of the Act.  He has further submitted that the OPs/complainants have earlier lodged a complaint before the Ld. District Forum at Howrah and the said complainant was dismissed due to lack of territorial jurisdiction and this time filed the complaint in a wrong Forum and therefore, the said present complaint was not entertainable.  He has also canvassed that the complaint is barred by the principle of res-judicata inasmuch as on earlier two occasions the same complaint in respect of self-same cause of action were rejected.

          The OP No.1/Complainant No.1 Sri Sisir Kr. Hati, who appears in person for himself and also on behalf of his wife (OP No.2/Complainant No.2) has contended that basing upon the order passed by the Commission the delay was condoned and the complaint was admitted, there was no irregularity in the order and further when by the impugned order, the Ld. District Forum after considering the merits of the case rejected the application of non-maintainability of the proceeding filed by OP/revisionist dated 05.03.2018, the impugned order should not be interfered with.

          I have given due consideration to the submission made by the parties and also scrutinised the materials on record.

          Upon hearing the Ld. Advocates appearing for the parties and on perusal of the record, it would reveal that the instant complaint being CC/435/2017 was come up for admission hearing before the Ld. District Forum on 10.11.2017 along with an application under 24A of the Act.  The Ld. District Forum instantly allowed the application under Section 24A of the Act and condoned the delay of 60 days in filing the complaint and issue notice upon OP fixing 04.012.2017 for appearance.  It indicates that the OP/revisionist did not get opportunity to file written objection, if any, against the application for condonation of delay and also could not avail the opportunity to participate in the hearing.  Subsequently, after entered appearance, the OP/revisionist filed written version and also filed an application challenging the maintainability of the proceeding on the three grounds as indicated above.

          In the impugned order, the Ld. District Forum did not address as to the point of limitation.  The impugned order is also silent as to the territorial jurisdiction as it has been stated that the territorial jurisdiction falls within Lake P.S. (now Rabindra Sarobar P.S.) which falls within the territorial jurisdiction of the DCDRF, Kolkata, Unit-III and not Kolkata, Unit-II.  The Ld. District Forum has referred several decisions in the impugned order but there is no logical conclusion as to whether the points canvassed by OP/revisionist has been addressed.

          Admittedly, the OPs herein being complainants filed a case earlier before the Ld. District Forum at Howrah being CC/212/2016 and in the said case, an application was filed by the revisionist challenging the maintainability which was rejected by Order No.07 dated 16.03.2017.  Challenging the said order, a revision petition was filed in this Commission being RP/72/2017 and the said revision petition was allowed and consequently, the CC/212/2016 was dismissed on the ground that the Ld. District Forum lacks territorial jurisdiction.

          Ld. Advocate for the Revisionist has drawn my attention to a decision of Three-Member Bench of Hon’ble National Commission reported in III (1992) CPJ 55 [Dr. M.I. Mishra – Vs. – M/s. Societies Scooter] where it has been held that without issuing any notice to the respondent/OP an application for condonation for delay cannot be allowed.

          We are not unmindful about the avowed object behind the legislation of the Act to protect the interest of the consumer and in doing so, liberal and purposive interpretation has to be placed on the scheme of the Act avoiding hyper technical approach.  At the same time, we must not be obsessed with the proposition of law that fair procedure is the hallmark of every legal proceeding and an affected party is entitled to be put to notice of the claim which such affected party has to meet.

          Therefore, the proper procedure that should have been adopted by the Ld. District Forum was to issue a notice to OP/revisionist and afford them a hearing on the question as to whether the delay deserved to be condoned or not.  It is only thereafter that the question of consideration of merits of the case could arise before the Ld. District Forum. 

          So far as territorial jurisdiction is concerned, I do not find any reflection in the impugned order whether the OP/revisionist carries on their business within the jurisdiction of the Ld. District Forum or the Ld. District Forum, Kolkata, Unit-III and in this regard OP/revisionist may have an opportunity to produce the document before the Ld. District Forum at the time of hearing.  Furthermore, the impugned order is silent as to whether the instant complaint is barred by the principles of res-judicata.

           The revisional jurisdiction of the State Commission flows from Section 17(1)(b) of the Act, which runs as under:-

          “to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity”.  

          The above provision makes it quite clear that the revisional jurisdiction conferred upon this Commission is limited only to the extent of jurisdictional error or material irregularity in passing the order impugned.  Admittedly, there is no jurisdictional error on the face of the record.  However, the impugned order suffers from material irregularity because the points raised by OP/revisionist were not properly addressed.

          In view of the above, the Revision Petition is allowed on contest.  There will be no order as to costs.

          The impugned order is hereby set aside.

      The parties are directed to appear before the Ld. District Forum on 12.11.2018 and on that date, the Ld. District Forum will fix a date for hearing the application filed by OP dated 05.03.2018 afresh and to dispose of the same by a speaking order covering all the points raised by OP.

      In accordance with the Consumer Protection Regulations, 2005 and its subsequent amendment, the Ld. District Forum is requested to not to entertain any substantive application unless it is registered as IA/MA and to give direction to that effect to the Registrar-in-Charge of the concerned Forum for registration of the same. 

           The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II for information and also to take note about acceptance of application without registration of IA/MA and place it before the Hon’ble President of the Commission.