This appeal is directed against the Judgement and Final Order dated 13.11.2020 in CC No 3 of 2017 delivered by Ld. D.C.D.R.F., Darjeeling. The fact of the case in nutshell is that one Bina Dewan of Darjeeling registered a Consumer Complaint before the Ld. D.C.D.R.F., Darjeeling to the effect that her husband Late. B.K. Dewan has redeemable preferential shares bearing receipt No 0029 corresponding to Application No AF29 dated 08.09.2011 amounting to Rs. 50,000/- as shareholder investor in the said company styled as Calcutta Weir Industry Ltd. and after the demise of her husband the Complainant has become the owner of the such shares as sole heir. Beside that she has invested 2000 shares having value of his share of Rs. 100 totaling Rs. 2,00,000/- and the Complainant deposited the said amount at its Branch situated at Rangbut Tea Estate, Sonada Darjeeling. The Opposite Party used to pay interest at Rs. 1,000/- Per-month to the Complainant and Rs. 4,000/- to her husband B.K. Dewan in respect of two preferential shares free cheque but suddenly they have stopped making payment. Both the preferential shares issued for a period of six years enabled the shareholder to make the claim for the said sum assured. The Complainant finding no other alternative has filed the instant Consumer Case. The Consumer Case was admitted on its merit and notice was sent to Hemlata Rai as employee and Shri. S. Khan as Managing Director of Calcutta Weir Industry ltd. claiming Rs. 2,50,000/- with interest over the invested money and compensation of Rs. 1,50,000/- including litigation cost. The notice was sent to the Opposite Parties who has not contested the case by filing any W.V. So, the case was heard Ex-parte and after hearing the Complainant and after collecting the evidences from the Complainant side Ld. Forum has passed the Final Order by which the instant Consumer Complaint was allowed Ex-parte and Opposite Parties were directed to pay Rs. 2,50,000/- with interest at the rate of 9% Per-annum from the date of filing of the case. Being aggrieved with this order the O.P No. 1 Hemlata Rai has preferred this appeal against the Complainant B. Dewan and Shri. S. Khan as Proforma respondent who happened to be the Managing Director of Weir Industry Ltd. On the ground that the appellant entrusted the case to Ld. Advocate Prayena Shrestha but on account of pandemic situation and marriage of the Advocate W.V could not be filed not could be represented this appellant as O.P No. 1 before the Ld. Forum and for that reason the order was passed Ex-parte and she could not get any opportunity to contest the case though she had no latches on her part and by this appeal, she has prayed for set aside the Final Order so that she may come to contest the case. The appeal was registered in due course one Payal Nandi was entrusted to conduct the hearing of the case on behalf of the appellant. The respondent B. Dewan and S. Khan did not contest the appeal in spite of receiving the notice. So, the hearing of the appeal only conducted by the Ld. Advocate of the appellant.

Decision with reasons

During the course of hearing of the case of appeal, Ld. Advocate mentioned that the appellant Hemlata Rai had nothing to play in the business dealing of purchasing of shares and invest of money by the Complainant and the Managing Director of the company Calcutta Weir Industry Ltd. She was mere an employ and no liability could be rested upon her. Ld. Advocate further mentioned that the Ld. Forum has observed that “Vicarious Liability” should be casted upon an employee. The Latin term Quie Facit Per Alium Facit Per Se mentions he who acts through another does the act himself but here in this case the appellant Hemlata Rai never acted as an agent to do the dealing with the Complainant as an agent of S. Khan which ever she acted as an employee of the Company and not as an agent and in the particular case the “Vicarious Liability” is wrongly construed to be an employee for an act of the employer and the employee was not doing anything in personal capacity or for personal gain. The appellant Hemlata Rai never received any money from the Complainant nor she represented the company to impress upon the investor to invest money in the company as a shareholder. So, the order of Ld. Forum is full of error and unjustified one. Ld. Advocate further mentioned that Ex-parte order should not be existence as because the appellant Hemlata Rai wants to contest the case and she should be given an opportunity so that in presence of her and after hearing her Ld. Forum may pass an effectual order otherwise the miscarriage of justice could not be prevented.

After, hearing Ld. Advocate of the appellant it appears to us, that in judicial arena the Ex-parte order always to be discouraged. As it violates the very principles of natural justice. Here, the appellant comes before this appeal Forum and makes an urging to allow her to contest the case in order to present her case before the Ld. Forum in a well manner. And for that reason, for the interest of justice, the impugned Final Order of Ld. D.C.D.R.F., Darjeeling should be set aside so that the appellant can get an opportunity to contest the case. Thus, the appeal has on its merit.

Hence, it’s ordered

That the appeal be and the same is hereby allowed on merit without cost. The Final order of Ld. D.C.D.R.F., Darjeeling dated 13.11.2020 in CC No 3 of 2011 is hereby set aside. The Ld. Forum is requested to accept the Written Version of appellant Hemlata Rai who must file the W.V before the Ld. Forum within 30 days from this day and Ld. Forum shall adjudicate the dispute afresh by giving sufficient opportunity of both sides to conduct the hearing of their cases in an appropriate manner.

Let a copy of this order be supplied to the parties free of cost and the same be communicated to the Ld. D.C.D.R.F., Darjeeling. The appellant Hemlata Rai is asked to appear before the Ld. D.C.D.R.F., Darjeeling on 23.06.2022 with W.V against the Consumer Complaint of CC No 3 of 2017 and Ld. Forum shall make a fresh schedule for hearing the case afresh.