Tripura

StateCommission

RP/3/2015

The Managing Director Godrej Boyce & Mfg Co Ltd. - Complainant(s)

Versus

Sri Anjan Paul & others - Opp.Party(s)

Mr. U.K Chakraborty

08 Sep 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

 

 

Revision Petition No. 03/2015

 

The Managing Director,

Godrej Boyce & Mfg.Co.Ltd.

Ulubari,G.S.Road. 871007.

Phone No.9864042826, Represented by

Deputy General Manager, Commercial,

Godrej Boyce & Mfg. Co.Ltd.

Ulubari, Guwahati Branch

                  ….    ….    ….    ….    Appellant.

                   Vs

1. Sri Anjan Paul,

S/O Late Sudhan Chandra Paul,

1, Mantribari Road, P.O-Agartala-799001,

P.S-West Agartala, Dist. West Tripura.

 

2. Sri Bijay Pandey

Proprietor of vending machine & premixes

Kumaritilla, P.O-Abhoynagar,

Agartala-799005, West Tripura.

                  ….    ….    ….    ….    Respondents.

 

PRESENT :

       

             HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                          

                  MRS. SOBHANA DATTA,

             MEMBER,

               STATE COMMISSION.

 

              MR. NARAYAN CH. SHARMA,

             MEMBER

            STATE COMMISSION

 

For the Appellant        :     Mr.U.K.Chakraborty,Adv.

For the respondents    :     Mr.P.C.Paul,Adv, Mr.P.K.Chakraborty,Adv &                                                           

                                       Mr.M.K.Roy,Adv

Date of Hearing          :      31.08.2015.

Date of delivery of Judgment  :

             

 

 

J U D G M E N T

 

S.Baidya,J,

            This revision filed on 02.07.2015 by the petitioner/revisionist under Section 17(1)(b) of the Consumer Protection Act., 1986 is directed against the order dated 16.05.2015 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), West Tripura, Agartala in case No.C.C-26 of 2015 whereby the Ld. District Forum passed the order directing to proceed with the case exparte against the appellant who is the O.P. No.2 in the said complaint case before the District Forum.       

2. The case of the petitioner as narrated in the revision petition, in brief, is that one Sri Anjan Paul, the O.P. No.1 herein, filed an application under Section 12 of the C.P.Act on 12.03.2015 before the Ld. District Forum against one Bijay Pandey, the O.P. No.2 herein and the present petitioner as O.P. No.2 in the District Forum. It is also alleged that the Ld. District Forum on 23.03.2015 admitted the complaint and passed order for issuance of the notice upon the O.Ps. and fixed the case on 27.04.2015 for filing the written objection by the O.Ps. It is also alleged that the present petitioner has been described in the complaint with an address at Ulubari, G.S.Road-781007, Phone No.9864042826 as O.P. No.2, but the O.P. No.2 who is the petitioner herein, has no such address, but there is only a branch office of the said company in the said address. It is also alleged that the office of the Deputy Managing Director, Commercial, Godrej Boyce and Mfg. Co.Ltd.,Guwahati branch received the said notice and sent the same to their head office at Pirojshanagar, Vikhroli, Mumbai-400079.                                                  
3. It is also alleged that on 27.04.2015, the Ld. District Forum fixed the case on 16.05.2015 for filing the written objection by the O.P. No.1 and also passed the said order to the effect that necessary order in respect of the O.P. No.2, the petitioner herein, would be passed on the next date. It is also alleged that on 16.05.2015, the Ld. Forum passed the order to proceed exparte against the O.P. No.2 i.e. the present petitioner. It is also alleged that on 03.06.2015 the said O.P. No.2, the petitioner herein, recorded its appearance through its counsel and filed the written objection which was not entertained by the Ld. District Forum on the ground that the order dated 16.05.2015 was passed directing to proceed exparte against the O.P. No.2.
4. It is also alleged that although order to issue notice was passed by the Ld. District Forum for service of the same upon the present petitioner as O.P. No.2 in the complaint case, but no order was passed by the Ld. District Forum either on 27.04.2015 or on 16.05.2015 to the effect that the notice so issued has been duly served upon the O.P. No.2 and accordingly, the service of notice upon O.P. No.2 was accepted. It is also alleged that order dated 16.05.2015 makes it clear that the Ld. Forum below passed the order to hear the case exparte against the O.P. No.2 on the basis of mere presumption regarding service of notice upon the O.P. No.2 and thereby, the Ld. Forum mechanically passed the impugned order dated 16.05.2015 on the basis of mere presumption.             
5.  That being aggrieved by the order dated 16.05.2015, the O.P. No.2 being the present petitioner has filed the instant revision petition praying for setting aside the said order for allowing the present petitioner to contest the said complaint case as O.P. No.2.           

Points for consideration.

6.       The points for consideration are (1) whether the impugned order passed by the Ld. District Forum suffers from any material irregularity and (2) whether the impugned order passed by the Ld. District Forum is proper, legal and valid and (3) whether the impugned order should be set aside as prayed for.      

                       

 

Decision with Reasons.

7.  All the three points are taken up together for the sake of convenience and brevity.
8. Admittedly, it is a case of revision and in a revision case only the legality, propriety and justifiability of the order in question are considered. We have to see as to how far the impugned order passed by the Ld. District Forum is sustainable in the eye of law from the stand point of legality, propriety and justifiability.
9. The learned counsel for the petitioner submitted that the Registered Office of the petitioner-Company, the O.P. No.2 of the complaint case, is at Pirojshanagar, Vikhroli, Mumbai-400079 and not at Ulubari, G.S.Road-871007, Guwahati, Assam. He also submitted that in Guwahati, Assam the petitioner-company has only a branch office. He also submitted that due to this anomaly, the notice was sent to the branch office located in Guwahati. He also submitted that on receipt of the said notice, the branch office forwarded the same to the head office of the petitioner-company in Mumbai. He also submitted that on receipt of the said notice through branch office, the O.P. No.2, the petitioner herein, appeared before the Ld. District Forum on 03.06.2015 and filed the written objection with a view to contest the case, but the Ld. District Forum did not entertain the same on the plea that the order to proceed exparte against the O.P. No.2 has already been passed on 16.05.2015 since the O.P. No.2 did not appear despite of notice. He also submitted that the Ld. District Forum passed no order either on 27.04.2015 or on 16.05.2015 to the effect that the notice so issued from the District Forum has been duly served upon the O.P. No.2. He also submitted that the Ld. District Forum without giving any finding regarding the service of notice upon the O.P. No.2 passed the impugned order to proceed exparte against the O.P. No.2 erroneously and as such said order not being passed on sound principles of law regarding service of notice upon the O.P. No.2 is not sustainable in the eye of law and therefore, it should be set aside and the revision petition should be allowed by affording an opportunity to the present petitioner to contest the said complaint case as O.P. No.2.  
10. The learned counsel for the petitioner also submitted that the petitioner-company has a good reputation in the market and if the petitioner does not get any opportunity to meet the demand of the complainant with a view to protect the reputation of the petitioner-company, the petitioner will be seriously prejudiced and for that the petitioner may be allowed to participate in the hearing of the complaint case pending before the Ld. District Forum. He also submitted that if the revision petition is allowed by way of providing an opportunity to the petitioner to contest the said complaint case by accepting the written objection already filed by the O.P. No.2, and thereby the complainant in the District Forum will not be prejudiced in any manner,  
11. The learned counsel for the petitioner also submitted that the impugned order passed by the Ld. District Forum suffers from illegality, impropriety and unjustifiability and also with material irregularity and as such, it cannot be sustained in the eye of law and is liable to be set aside.
12. The learned counsel for the O.P. No.1, who is the complainant in the District Forum only submitted before us that the revision petition may be allowed with a cost. Barring this submission, the learned counsel for the O.P. No.1 has submitted nothing more.
13. The O.P. No.2 in person submitted that the petitioner may be allowed to contest the complaint case and he is also in favour of allowing the revision petition for proper and complete adjudication of the matter involved in the complaint case pending before the Ld. District Forum.  
14. We have gone through the complaint petition filed under Section 12 of the C.P.Act, the revision petition and the impugned order dated 16.05.2015 along with orders dated 23.03.2015, 27.04.2015 and 03.06.2015. We have also considered the submissions made before us. Admittedly, order dated 23.03.2015 speaks that the case was admitted and an order to issue notice upon the O.Ps. was passed with a direction for appearance of the O.Ps. on 27.04.2015 and also for filing written objection, if any. The order dated 27.04.2015 speaks that none appeared on that date on behalf of the complainant, but the O.P. No.1, the O.P. No.2 herein, appeared and sought for time to file the written objection which was allowed and the case was fixed on 16.05.2015. The said order also speaks, “the O.P. No.2 is absent though notice was sent to him by speed post on 24.03.2015 and necessary order in respect of O.P. No.2 would be passed on the next date”. It also appears that on the next date i.e. on 16.05.2015 the learned counsel for the complainant was present and the O.P. No.1 again filed application seeking time to file the written objection which was allowed and the case was fixed on 03.06.2015 for filing written objection by the O.P. No.1. The said order dated 16.05.2015 i.e. the impugned order also speaks, “the O.P. No.2 is still absent though notice was sent to him by speed post on 24.03.2015 and there is nothing on record to show that the notice has not been duly served upon the O.P. No.2 and since the O.P. No.2 has not turned up, the case will proceed exparte against him”.
15. From the above, it is palpable that there is no finding of the Ld. District Forum either on 27.04.2015 or on 16.05.2015 to the effect that the notice issued to the O.P. No.2, the petitioner herein by speed post has been duly served. It is settled principle of law that the negative does not require to be proved. Going through the record of the Ld. District Forum we find nothing to hold that any postal acknowledgment card has been received showing the service of notice upon the O.P. No.2. It is true that the petitioner did not mention in the revision petition as to the date on which the petitioner received the said notice at its Mumbai head office from their branch office at Guwahati. Be that as it may, we find nothing to believe and hold that the present petitioner received the intimation of filing the complaint case by the complainant before 16.05.2015. However, without giving any specific finding regarding the service of notice upon the O.P. No.2 and also fixing the complaint case to proceed exparte against the O.P. No.2 by the impugned order dated 16.05.2015 cannot be said to be a proper, legal and justifiable one. We are also of the view that the fixing of the case to proceed exparte against the O.P. No.2 suffers from illegality, impropriety and unjustifiability and also with material irregularity. That being the position, we are also of the view that the impugned order cannot be sustained in the eye of law. So, the impugned order calls for interference by this Revisional Authority and therefore, the impugned order, so far it relates to proceed exparte against the O.P. No.2, should be set aside and the revision petition is liable to be allowed with a view to provide an opportunity to the petitioner to contest the said complaint case.      
16. In the result, the revision petition succeeds. The impugned order dated 16.05.2015, so far it relates to proceed exparte against the O.P. No.2, stands set aside. There is no order as to costs.
17. The Ld. District Forum is directed to proceed for disposal of the complaint case after accepting the written objection already filed by the O.P. No.2 on 03.06.2015, the petitioner herein, by way of providing opportunities to all the parties to prove their cases by adducing their respective evidences.
18. The parties are directed to appear before the Ld. District Forum on 15.09.2015 without fail.
19. Let a copy of the judgment and the record of the Ld. District Forum being C.C.26/2015 be transmitted to the Ld. District Forum forthwith for information and doing the needful as directed in this judgment.

         

         

          MEMBER                          MEMBER                              PRESIDENT

                State Commission               State Commission                    State Commission

                         Tripura                              Tripura                                      Tripura