Chandigarh

StateCommission

RP/36/2015

Unitech Limited - Complainant(s)

Versus

Raseel Thakur - Opp.Party(s)

Vertika H Singh, Adv.

28 Aug 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Revision Petition No.	:	36 of 2015
Date of Institution	:	26.08.2015
Date of Decision	:	28.08.2015

 

 

 

 

1. Unitech Limited, Regional Office, SCO No.189-191, Sector 17-C, Chandigarh – 160017.
2. M/s Unitech Limited, Unitech House, South City Gurgaon (Haryana).
3. M/s Unitech Limited, 6, Community Centre Saket, New Delhi – 110017.

…… Revision Petitioners/Opposite Parties.

Versus

 

Raseel Thakur S/o Sh. Nand Ram R/o #2382, Sector 67, JVV Society, Mohali (Punjab).

 

              ....Respondent/Complainant.

 

 

BEFORE:  MR. DEV RAJ, MEMBER.

                    MRS. PADMA PANDEY, MEMBER

               

Argued by:  

 

Ms. Vertika H. Singh, Advocate for the Revision-Petitioners.

Sh. Raseel Thakur, respondent in person.

 

PER DEV RAJ, MEMBER

            This Revision petition is directed against the order dated 17.08.2015, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, the Opposite Parties (now Revision-Petitioners), were proceeded against exparte.

2.         Consumer Complaint bearing No.344 of 2015, was filed by the complainant, on the ground that the complainant deposited Rs.1,00,000/- with the Oppostie Parties for purchase of FDR and he was issued FDR  dated 28.8.2013 accordingly valid for one year with maturity date as 28.08.2013. It was further stated that on maturity, when the FDR was endorsed and surrendered for release of proceeds in the month of August, 2014, the same were not released and only interest accrued to the tune of Rs.12,126/- was released vide refund voucher No.10044280 dated 28.8.2014, without principal amount. It was further stated that the despite reminders dated 26.8.2014, 4.12.2014 and 18.12.2014, sent by the complainant, the Opposite Parties did not release the amount of FDR.

3.         It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties to release the amount of FDR alongwith interest @18% p.a.; pay Rs.20,000/- for harassment and mental agony; Rs.20,000/- for deficiency, in rendering service, & unfair trade practice and Rs.10,000/- as litigation charges. 

4.             Despite deemed service, none put in appearance, on behalf of the Opposite Parties, before the District Forum, as a result whereof, they were proceeded against exparte, vide order dated 17.08.2015.

5.             Feeling aggrieved, the instant Revision-Petition, was filed by the Revision-Petitioners/Opposite Parties, against the order dated 17.08.2015.

6.             We have heard the Counsel for the Revision- Petitioners/Opposite Parties, respondent/complainant in person, and have gone through the record of the case, carefully.

7.             The Counsel for the Revision-Petitioners/Opposite Parties, submitted that, no doubt, the Opposite Parties were proceeded against exparte on 17.08.2015 by raising presumption of deemed service. He further submitted that after duly receiving the summons, the case was allotted to him (Counsel) by the Revision Petitioners-Opposite Parties. He further submitted that absence of the Revision-Petitioners/Opposite Parties, on 17.08.2015, in the District Forum, was,  neither intentional, nor deliberate, but due to the reason that the Clerk of the Counsel  for the Revision-Petitioners/Opposite Parties, noted wrong date of hearing as 20.08.2015 in the diary and due to this inadvertent mistake, the Counsel  could not appear before the District Forum on 17.08.2015. He further submitted that it was only on 19.08.2015 that it came to the knowledge of the Counsel for the Revision Petitioners-Opposite Parties that the consumer complaint was fixed for 17.08.2015. He further submitted that, in case, the order impugned is not set aside, irreparable injury is likely to occasion, to the Revision-Petitioners/Opposite Parties, as, in that event, it would be deprived of filing written statement, as also evidence to rebut the case set up by the complainant. He further submitted that, thus, the order of the District Forum, in proceeding exparte against Opposite Parties, is liable to be set aside, and the case deserves to be remanded back, to it, for fresh decision, after affording them (Opposite Parties) an opportunity of filing the written version, and evidence, by way of affidavit(s).  

8.                 On the other hand, the respondent/complainant, in person, submitted that the absence of the Revision-Petitioners/Opposite Parties on 17.08.2015, in the District Forum, was intentional and deliberate. He further submitted that the order dated 17.08.2015, passed by the District Forum being legal and valid, does not call for any interference.

9.            Perusal of the District Forum record, reveals that the complaint was admitted, vide order dated 07.07.2015, and notice was ordered to be issued to the Opposite Parties, for 17.08.2015. On 17.08.2015, notice through Registered A.D. Cover sent for the service of the Opposite Parties were not received back with any report though a period of 30 days  from the date of issuance of the same i.e. on 16.07.2015 had expired. None appeared, on behalf of the Opposite Parties, on 17.08.2015. Accordingly, the District Forum held that the Opposite Parties were deemed to be served but since none came present on their behalf, they were proceeded against exparte. 

10.          In Para No.2  of the memorandum of Revision Petition, it was admitted by the Revision Petitioners/Opposite Parties that after receipt of summons, when the case was allotted by the Revision Petitioners/Opposite Parties to the Counsel, the Clerk of the Counsel  mistakenly noted wrong date of hearing as 20.08.2015 in the diary, as a result whereof, none could put in appearance on their behalf on 17.08.2015.

11.          However, whatever the case may be, it is settled principle of law, that every lis should normally be decided, on merits, than by resorting to hyper- technicalities. When hyper-technicalities, and the substantial justice, are pitted against each other, then the latter shall prevail over the former. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same. In State of Punjab and another vs. Shamlal Murari & Anr., AIR 1976 SC 1177, the principle of law, laid down, was to the effect that procedure, is, in the ultimate, handmaid of justice, and not its mistress, and is meant to advance its cause, and not to obstruct the same. The procedural Rule, therefore, has to be liberally construed, and care must be taken, that so strict interpretation be not placed thereon, whereby, technicality may tend to triumph over justice. It has to be kept in mind, that an overly strict construction of procedural provisions, may result in the stifling of material evidence, of a party, even if, for adequate reasons, which may be beyond its control. We must always remember that procedural law, is not an obstruction, but an aid to justice. Procedural prescriptions are the hand-maid, and not the mistress, a lubricant, not a resistant, in the administration of justice. If the breach can be corrected, without injury to the just disposal of a case, regulatory requirement should not be enthroned into a dominant desideratum. The Courts and the quasi-Judicial Tribunals, have been set up, with the sole purpose of dispensing justice, and not to wreck the end result, on technicalities.

12.       No doubt, there was negligence, on the part of Counsel for the Opposite Parties, in not noting down the correct date viz. 17.08.2015, given by       the District Forum for the appearance of the    Opposite Parties. Since, the Counsel for the Opposite Parties did not take the requisite measures, negligence was attributable to him. It is settled principle of law, that for the negligence or inadvertence of the Counsel, the party should not suffer. In our considered opinion, an opportunity should be afforded to the Opposite Parties, to contest the complaint, so that the same could be decided, on merits, and the rights of the Parties are finally determined by Forum, one way or the other. In this view of the matter, the order impugned is liable to be set aside.

13.        On account of the inadvertence or negligence of the Opposite Parties or their Counsel, delay in the disposal of complaint, on merits, has already been caused.  Even further delay in disposal of the complaint shall be caused, on account of remand of the same for fresh decision. According to Section 13 (3A) of the Act, an endeavour shall be made to decide the consumer complaint, within three months, from the date of service of the Opposite Party(s), except the one, in which the goods are required to be sent to the Laboratory for examination. In that event, an endeavour shall be made to decide the consumer complaint, within a period of 5 months, from the date of service of the Opposite Parties. The consumer complaint bearing No.344 of 2014 had been filed on 03.07.2015. A period of three months shall lapse on 02.10.2015. For causing delay, in the disposal of complaint, on merits, the Revision Petitioners - Opposite Parties are required to be burdened with costs.

14.                 For the reasons recorded above, the Revision-Petition is accepted. The order dated 17.08.2015, rendered by the District Forum, is set aside, subject to payment of costs of Rs.3,000/-, by the Revision-Petitioners/Opposite Parties, to the respondent/complainant. The District Forum shall grant reasonable opportunity, to the Opposite Parties, for filing vakalatnama, written reply, alongwith evidence, by way of affidavit(s), and thereafter decide the complaint, on merits, in accordance with the provisions of law. The payment of cost to the tune of Rs.3,000/-, referred to above, to the respondent/complainant, shall be a condition precedent. In other words, the payment of cost, shall be made, before filing the vakalatnama, written reply, alongwith evidence, by way of affidavit(s).

15.                 The parties are directed to appear, before District Forum (II) on 09.09.2015 at 10.30 A.M., for further proceedings.

16.                        The District Forum record, alongwith a certified copy of the order, be sent back, to it, immediately, so as to reach there, well before the date and time fixed i.e. 09.09.2015 at 10.30 A.M.

17.                       Certified Copies of this order, be sent to the parties, free of charge.

18.                      The Revision-Petition file be consigned to the Record Room, after due completion.

Pronounced

August  28, 2015

Sd/-

[DEV RAJ]

MEMBER

 

 

Sd/-

[PADMA PANDEY]

MEMBER

Ad