NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHIFIRST APPEAL NO. No. FA/375/2008
(Against the Order dated 01/02/2008 in Complaint No. 198/2000 of the State Commission Delhi)
1. INDUSIND BANK LTD.43,Community Centre New Friends ColonyNew DelhiDelhi
...........Appellant(s)
Vs.
1. RAJBIR SHARMA S/o Sh.Ravi Datt Sharma Vill Dhana BhiwaniHaryana
...........Respondent(s)
BEFORE:
HON'BLE MR. JUSTICE R.C. JAIN ,PRESIDING MEMBERHON'BLE MR. ANUPAM DASGUPTA ,MEMBER
For the Appellant :
MR. T. S. AHUJA
For the Respondent :
NEMO
Dated : 02 Mar 2010
ORDER
Aggrieved by the order dated 1.2.2008 passed by the Delhi State Consumer Disputes Redressal Commission ( in short, the State Commission) in complaint case No. C-198 of 2000-Rajbir Sharma vs. M/s Ashok Leyland Finance Ltd., Indusind Bank Limited successor-in-interest of the original opposite party-M/s Ashok Leyland Finance Ltd., has filed the present appeal. By the impugned order, the State Commission has partly allowed the complaint filed by Shri Rajbir Sharma with the following directions:- 9. Complaint is allowed in terms of following orders:- (i) OP shall refund the amount contributed by the complainant and balance amount after assessing the sale price of the vehicle by way of depreciated value @10% p.a. (ii) OP shall pay lump sum compensation of 50,000/- which shall include cost of litigation towards mental agony, trauma, emotional sufferings, physical discomfort and great injustice done to him on account of forcible repossession of the vehicle. (iii) OP shall further return all the post-dated cheques from the date of seizure and if any of them has been encahsed shall refund the amount thereof. 10. Payment shall be made within one month from the date of receipt of this order. 11.Complaint is allowed and disposed of in aforesaid terms. 12. A copy of the order as per the statutory requirements be forwarded to the parties free of charges and thereafter the file be consigned to Record Room. 2. We have heard Mr. Arun Arora, learned counsel representing the appellant but had not the advantage of hearing the say of the respondent/complainant-Rajbir Sharma as none appeared for him despite service of notice of appeal upon him. We have also perused the original record of the complaint received from the State Commission. 3. Even without assailing the findings of the State Commission and the impugned order on merit, learned counsel for the appellant would assail the impugned order as violative of the principles of natural justice because the appellant did not have proper and reasonable opportunity to defend the complaint on merits. In this connection, his submission is that the complaint filed by the respondent/complainant-Rajbir Sharma, was dismissed for non-prosecution by the State Commission vide order dated 05.07.2004, which order is reproduced below:- Rejoinder and affidavit by way of evidence on behalf of the complainant not filed despite opportunities given. Even on the last date of hearing i.e.28.07.2003 none was present on behalf of the complaint and a default notice had to be issued. Today only a proxy Counsel has appeared who has no knowledge about the case. As such the present complaint, filed by the complainant, is directed to be dismissed on grounds of non-prosecution. A copy of this order, as per the statutory requirements, be forwarded to the parties free of charge and thereafter the file be consigned to Record Room. 4. It would appear that prior to the dismissal of the complaint, the complainant was represented through counsel, namely, Shri V. C. Verma, Advocate and after dismissal of the complaint vide order dated 5.7.2004, a misc. application for restoration of complaint (which was not numbered by the State Commission), was moved through a different advocate, namely, Shri Balbir Singh. On the restoration application, the State Commission issued dasti notice to the respondent (appellant herein) returnable on 30.08.2004. It would further appear that on 30.08.2004, the complainant was present in person and the said misc. application was considered and allowed by the State Commission by observing as under:- Misc. application dated 07.07.2004 in Complaint Case No. C-198/2000 There is an application seeking restoration of the complaint which was dismissed on grounds of non-prosecution vide order dated 05.07.2004. In view of the facts explained in the application, which is duly supported by affidavit the application is allowed. The complaint is restored to its original number. The application stands disposed of. 5. It is pertinent to note that on 30.08.2004, the State Commission failed to take notice of the earlier proceeding dated 27.7.2004 whereby the State Commission had issued dasti notice to the respondent and to see if the notice issued on the application was served on the respondent or not. Strangely, after passing the said order, on 19.11.2004 the State Commission again directed for issue of notice to the opposite party for 8.4.2005 with the stipulation that one set of notice be given dasti to the complainant for service. It is, however, not clear as to whether this notice was issued on the misc. application or on the complaint after its restoration. Afterwards, it would appear that again time was granted to the respondent to file reply/written version though the proceeding earlier to 5.7.2004 would show that the opposite party had already filed reply/written version and the complainant was called upon to file rejoinder and affidavit by way of evidence and due to non-filing of which the complaint was dismissed. 6. Mr. Arora submits that the appellant had not received any notice of the misc. application seeking restoration of the complaint, which was dismissed for non-prosecution on 05.07.2004 and, therefore, had no occasion to oppose the said application. In any case, his further submission is that misc. application seeking restoration of the complaint purportedly moved on behalf of the complainant and the power of attorney in favour of Shri Balbir Singh, Advocate, were not signed by the complainant as the signatures appearing on the complaint and on the affidavit, which the complainant claims to have filed subsequent to the restoration of the complaint, are materially different. This is so apparent even on an examination of these documents by naked eyes. The appellant has taken pains in getting the same examined through a hand writing expert, who, on comparison of the said signatures, has clearly opined that the sets of signatures of the complainant, do not tally with the signatures on the application for restoration of the complaint and the Power of Attorney in favour of Shri Balbir Singh, Advocate. It is submitted that either the complainant or someone on his behalf has played fraud upon the State Commission as well as on the appellant herein by making such a fake/forged application. In these circumstances, he submits that not only the impugned order dated 1.2.2008 passed by the State Commission giving far reaching directions (supra) to the appellant, is liable to be set aside but also the order dated 30.08.2004 restoring the complaint, is also liable to be set aside. 7. Having considered the submissions of learned counsel for the appellant, we find merit in the same and in our view also, the question whether the application was, in fact, moved by the complainant or not, is still to be decided and, therefore, the order dated 30.08.2004 passed on the misc. application, restoring the complaint, without serving any notice on the opposite party-appellant, is clear violative of principles of natural justice and has resulted into miscarriage of justice. In our view, it is a fit case where we should not only set aside the impugned order dated 01.02.2008 but also the order dated 30.08.2004 passed on the misc. application restoring the complaint by the State commission. Since it is alleged that the said application or the Power of Attorney in favour of Balbir Singh is not signed by the complainant, we deem it appropriate that the said application should be decided by the State Commission in the first instance and depending upon the out come of the same, proceed to decide the complaint afresh after affording due opportunity to the parties. 8. In the result, the appeal is allowed and the impugned orders dated 01.02.2008 and the order dated 30.08.2004 passed on the misc. application, are hereby set aside and the matter is remanded back to the Board of the State Commission for dealing with the complaint from the stage of the filing of the misc. application for restoration was purportedly moved on behalf of the complainant. The said application shall be set down for hearing on a date to be fixed for hearing after issuance of notice to the parties. We direct the appellant to appear before the State Commission on 05.04.2010 for receiving further directions in the matter. Before parting with the matter, we would like to observe that the State Commission ought to have exercised better care in dealing with the application for restoration of the complaint. No order as to costs. On the request of learned counsel for the appellant, we direct the Registry to refund the deposited amount of Rs.35,000/- to the appellant with accrued interest, if any. Original record received from the State Commission be returned forthwith.
......................JR.C. JAINPRESIDING MEMBER ......................ANUPAM DASGUPTAMEMBER
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