Delhi

StateCommission

RP/104/2015

M/S OMAXE LTD. - Complainant(s)

Versus

SMT. VIMLESH SHARMA - Opp.Party(s)

29 Feb 2016

ORDER

IN THE STATE COMMISSION : DELHI

 

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision: 29/2/2016

Revision Petition – 104/2015

M/s Omaxe Ltd.

7, Local Shopping Centre,

Kalkaji, New Delhi.                                                                                   …Revisionist

Versus

 

 

 

Smt. Vimlesh Sharma

W/o Sh. Dinesh Chand Sharma

R/o F- 94, Alfa –II

Greater Noida, U.P.                                                                                …Respondent

 

CORAM

Justice Veena Birbal, President

Salma Noor, Member

 

1.       Whether reporters of local newspaper be allowed to see the judgment?

2.       To be referred to the reporter or not?

 

     Justice Veena Birbal, President

 

1.      This is a revision petition challenging the order dated 9.10.2015 passed by the Consumer Dispute Redressal Forum - x, Udyog Sadan , C - 22 & 23, Institutional Area (Behind Qutub Hotel), New Delhi-1100016 (in short, “the District Forum” in Consumer Complaint no. 295/2014 whereby the right of the petitioner/op to file written statement has been closed.
2.       No one has appeared on behalf of respondent/complainant despite being served.
3.      Ld. Counsel for the petitioner/op has submitted that petitioner/op was served with the notice of the Consumer complaint no 296/2014 titled “Sh Dinesh Chand Sharma vs Omaxe Ltd.” for 30.09.2014. The said case was assigned by the petitioner/op to the counsel appearing for petitioner/op i.e. Shri Harish Garg, Advocate. On the said date counsel appearing in the said case got stuck up in some other court and his clerk Vikas Singh had appeared and obtained a copy of complaint. On that very date another CC No. 295/2014 filed against petitioner/op wherein impugned order has been passed was also listed. It is stated that no notice was received by the petitioner/op for the aforesaid case and as such no instructions were given to the aforesaid counsel for appearance in the aforesaid case.
4.      It is stated that the Ld. District forum had asked the clerk of the counsel of petitioner/op to appear in CC No. 295/2014 also. Accordingly the said clerk appeared and took time for taking instructions in the matter and the case was adjourned to 18.12.2014. Again on the aforesaid date, the clerk of the petitioner/op had appeared and the matter was adjourned to 6.2.2015.
5.      It is stated that since the petitioner/op was not served in the aforesaid case as such no instructions were given to the aforesaid counsel for appearance in the matter. The counsel for the petitioner/op was under the impression that the said case had been assigned to some other counsel, therefore he did not appear before the Ld. District Forum. It is stated that on 9.10.2015, when the other case i.e. CC No.296/2014 was listed before the Ld. District Forum, the counsel for petitioner/op had appeared in the said case and noted that no one had appeared in CC No. 295/2014. Immediately the said position was informed to petitioner/op. On checking of records by the petitioner/op, it was found that petitioner/op was not served with notice of aforesaid complaint case and therefore the case was not assigned to any counsel.
6.      It is submitted that since the petitioner/op was not served with the notice of the complaint case no 295/2014, the Ld District Forum ought not have closed the right of the petitioner/op to file Written statement It is stated that on coming to know about the pendency of the case, the petitioner/op gave the instructions to the counsel i./e. Harish Kumar Garg for appearance in the aforesaid case on 26.10.2015 and to do the needful. Accordingly the judicial file was inspected and it was revealed that impugned order had been passed on 9.10.2015 whereby right of OP to file written statement had been closed and matter was adjourned for respondents/complainant’s evidence on 27.01.2016. Immediately certified copy was applied which was made available on 2.11.15 and thereafter the present petition was prepared and file before this commission.
7.       Ld. Counsel for petitioner/op has contended that the notice of the case ought to have been served upon the petitioner/op before passing adverse order against the petitioner/op. It is contended that the Ld. District Forum ought to have been given fair opportunity to petitioner/op to contest the case. It is contended that even on merits petitioner/op has a good case in as much as the alleged booking is for a commercial space/shop and respondent/complainant is not a ‘consumer’ as defined under the Consumer Protection Act, 1986.
8.      As noted above no one has appeared on behalf of respondent/complainant despite being served with the present petition. Perusal of order sheet dated 27.1.2016 of the Ld. District Forum also shows that the counsel for petitioner/op had informed the Ld District Forum that petitioner/op had preferred a Revision Petition before this commission which was listed on 29.02.2016. The counsel for respondent/complainant was present on that day. Despite that no one has appeared for her today.
9. We have also perused the file of the complaint case which was called from the Ld. District Forum. There is nothing to show that petitioner/op was served in the case. Presence of Vikas Singh was recorded on 30.09.2014 and 18.12.2014, as proxy for counsel for petitioner/op. As per the counsel for petitioner/op, Vikas Singh is his clerk. There is no service report on record of Ld. District Forum showing service on respondent/op. There is nothing on record to show that notice was ever issued to petitioner/op. A copy of notice is also not on record.  The record of the Ld. District Forum shows that petitioner/op was not served in the matter.
10. In these circumstances we allow the present petition and set aside the impugned order and give the opportunity to petitioner/op to file the written statement.
11. The next date before the Ld. District Forum is 4/5/2016.
12. Let the written statement be filed by the petitioner/op within 30 days from today.

   

  A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned District Forum. Record of the case be sent forthwith.

 

(Justice VeenaBirbal)

President

 

(Salma Noor)

Member