Karnataka

Bangalore 4th Additional

CC/628/2016

M/s. Silicomp India Pvt Ltd, - Complainant(s)

Versus

M/s. Matrix Cellular (International) Services Pvt Ltd - Opp.Party(s)

07 Mar 2018

ORDER

Complaint filed on: 21.04.2016

                                                      Disposed on: 07.03.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.628/2016

DATED THIS THE 7^th MARCH OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

M/s.Silicomp India Pvt. ltd., FIME India Sarode Building #743, 15^th cross, 6^th phase,

100 feet road, J.P.Nagar, Bengaluru-78,

Rep. by its Director

Mr.Prakash Sambandam

 

By Advocates

M/s.Bangalore Law Associates     

 

V/s

Opposite party/s

Respondent/s:-

 

1. M/s.Matrix Cellular (International) Services

Pvt. ltd., Head office: 7,

Khullar Farms, Mandi

Road, Mehrauli,

New Delhi – 110030,

Rep. by its Director

 

2. Managing Director,

Matrix Cellular International

#95, 17^th B main,

5^th block, Koramangala, Bengaluru-95.

 

By Advocates M/s.Agraa Legal

 

 

Order on IA No.II

 

PRESIDENT: SRI.S.L.PATIL

 

           

This IA No.II dtd.04.07.17 is filed by the Complainant U/S 24-A of CP Act to condone the delay in filing this complaint and hear the matter on merits in the interest of justice and equity for the reasons stated in the Memorandum of Facts. In the Memorandum of Facts signed by the learned counsel for the Complainant states that, initially Complainant has filed the complaint before this forum in CC.no.860/2015. However, the Complainant was unable to attend one date as he was stuck in traffic, the same got to be dismissed. Since the Consumer Protection Act does not envisage a provision for restoration of the case, and as per the dictum of the higher court, the Complainant is constrained to re-file this complaint for similar reliefs. Further stated that, Complainant has filed the earlier complaint in time and could not file the second complaint in time as the Complainant was not in the country and was travelling abroad, hence on these grounds prays to allow this application to condone the delay in filing the present complaint.

 

2. Ops filed objections denying the contents of the Memorandum of Facts filed by the learned counsel for the Complainant in support of IA No.II filed u/s 24A of CP Act. The sum and substance of the objections filed by Ops are that, this application was not filed along with the complaint. The reasons assigned in the Memorandum of Facts are far away from truth. The so called Complainant was not diligent in conducting the earlier complaint in CC.no.860/2015. Hence the same was dismissed for default on 30.12.15. Once the complaint is dismissed it cannot be restored unless and until there are reasonable and acceptable grounds. Hence on these grounds prays for dismissal of this application.  

         

          3. Heard both side.

  

4. Short points that arise for our consideration are:

1. Whether the delay in filing the complaint can be condoned by allowing IA No.II filed by Complainant u/s.24A of CP Act ?
2. What order ?

                   

           

 

5.  Our answers to the above points are as under:

 

Point no.1: In the Negative.  

Point no.2: As per the final order for the following

 

REASONS

 

          6. Point no.1:  Strictly speaking, IA No.II filed by the Complainant u/s.24A of CP Act is not in accordance with the Civil Rules and Practice, as the said application is not supported with an affidavit by the concerned Complainant. Looking to the contents of Memorandum of Facts filed by the learned counsel for the Complainant who stated that  “Complainant has filed the earlier complaint in time and could not file the second complaint in time as the Complainant was not in the country and was travelling abroad, hence on these grounds prays to allow this application”.

 

7. If the above contents are strictly construed, one thing is clear that, learned counsel for the Complainant admitted in filing the complaint at the belated stage i.e. not in time. Another reason assigned was, the Complainant was not in the country and was travelling abroad and hence Complainant is constrained to file this application. If that being the case, what prevented the Complainant to file his affidavit to explain the every days delay in filing the complaint in the light of the decisions reported in IV 2012 CPJ 530 NC in the case of Shashi Sharma vs. LIC of India, where in it is held that:

Consumer Protection Act, 1986 – Sections 24A, 21-B – Limitation – delay of 164 days – condonation – contention, petitioner is a widow who has limited financial sources and strength – she was unable to pay charges of hospital, where the deceased remained admitted for one week – she filed review petition due to incorrect legal advice – not accepted – day to day delay has not been properly explained – barred by time.  

 

8. Further as per the decision reported in (2000) 3 Supreme Court Cases 242 in the case of New India Assurance co. ltd., vs. R.Srinivasan, wherein at para 16 to 19 it is held that:

16. This rule is in identical terms with sub-rule (8) of Rule 4 and sub-rule (8) of rule 8. Under this sub-rule, the appeal filed before the State Commission against the order of the District Forum, can be dismissed in default or the State Commission may in its discretion dispose of it on merits. Similar power has been given to the National Commission under rule 15(6) of the Rules made by the Central Government under Section 30(1) of the Act. These Rules do not provide that if a complaint is dismissed in default by the District Forum under Rule 4(8) or by the State Commission under Rule 8(8) of the Rules, a second complaint would not lie. Thus, there is no provision parallel to the provision contained in Order 9 Rule 9(1) CPC which contains a prohibition that if a suit is dismissed in default of the plaintiff under Order 9 rule 8 a second suit on the same cause of action could not lie. That being so, the rule of prohibition contained in Order 9 Rule 9(1) CPC cannot be extended to the proceedings before the District Forum or the State Commission. The fact that the case was not decided on merits and was dismissed in default of non-appearance of the Complainant cannot be overlooked and, therefore, it would be permissible to file a second complaint explaining why the earlier complaint could not be pursued and was dismissed in default.

17. But that is not the end of the matter. Mahmood.J, in his dissenting judgment in the full bench case of Narsingh Das v. Mangal Dubey observed:

“[T]he courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle, prohibitions cannot be presumed, and in the present case, therefore, it rests upon the defendants to show that the suit in the form in which it has been brought is prohibited by the rules of procedure applicable to the courts of justice in India.”

18. We only intend to invoke the spirit of the principle behind the above dictum in support of our view that every court or judicial body or authority, which has a duty to decide a lis between two parties, inherently possesses the power to dismiss a case in default. Where a case is called up for hearing and the party is not present, the court or the judicial or quasi-judicial body is under no obligation to keep the matter pending before it or to pursue the matter on behalf of the Complainant who had instituted the proceedings. That is not the function of the court or, for that matter of a judicial or quasi-judicial body. In the absence of the Complainant, therefore, the court will be well within its jurisdiction to dismiss the complaint for non-prosecution. So also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for the non-appearance of the Complainant.

19. We cannot also lose sight of the fact that a Complainant may harass a party by repeatedly filing a complaint against him. He may file a complaint, draw the Op to the State or National Commission and then have the complaint dismissed for default. He may repeat the exercise again only to harass the defendant. This practice, or to put it a little sternly, these tactics would be intolerable for any authority under the Act. In such a situation, the District Forum or the State or National Commission would not be helpless and it would be to them to dismiss the fresh complaint on the ground of abuse of the process available under the Act. They can, in that situation, legitimately invoke the principles of Order 9 Rule 9 CPC.

 

9. So, in the light of the observations made by Hon’ble Supreme Court and Hon’ble National Commission, we are constrained to dismiss this application as the reasons assigned for condoning the delay are not satisfactorily explained. In this view of the matter, we answered point no.1 in the negative.

 

10. Point no.2: In the result, we passed the following:

 

ORDER

 

IA No.II dtd.04.07.17 filed by the Complainant U/S 24-A of CP Act is dismissed.

 

2. Consequently, complaint filed by the Complainant is dismissed as barred by time.

 

3. In view of dismissing the complaint, IA.No.I filed on 04.01.2017 by Op.no.1 & 2 U/S 26 of CP Act does not survive for consideration.

 

          4. Looking to the circumstances of the case, we direct both the parties to bear their own cost.   

         

          Supply free copy of this order to both the parties.

 

         

(Dictated to the Stenographer in the open forum and pronounced on 7^th March 2018).

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT