Sri Subhra Sankar Bhatta, Presiding Member
The present appeal has been directed at the instance of the Appellant, Sri Madhumoy Bhowmick who was the original Complainant before the District Consumer Disputes Redressal Commission, Kolkata Unit—III (South), Government of West Bengal (hereinafter referred to as the ‘District Commission’ for convenience of discussion) assailing the impugned judgment and order dated 28.02.2018 passed by the District Commission in connection with Consumer Complaint Case No. CC/277/2017 whereby Ld. District Commission was pleased to pass the following order:-
“ORDERED
That CC/277/2017 is dismissed for non-joinder of necessary party.”
Being aggrieved by and dissatisfied with the above judgment and order of the District Commission the Complainant Sri Madhumoy Bhowmick as Appellant has preferred the present appeal on various grounds as highlighted and canvassed in the body of the memorandum of appeal. It has been contended that the impugned judgment and order were passed by the District Commission ex parte; that the impugned order of dismissal of the Complaint Proceeding on the very ground of non-joinder of necessary party is highly illegal, irregular and bad in the eye of law; that the Ld. District Commission was not at all justified in dismissing the complaint case merely on such technical issue; that the Ld. District Commission arrived at the conclusion without perusing the relevant papers and without going into the merit of the case; that the Ld. District Commission totally failed to appreciate the case of the Complainant/Appellant in its true perspective; that the Ld. District Commission has caused serious miscarriage of justice by dismissing the complaint on the ground of non-joinder of necessary party. On all such grounds the Appellant has prayed for allowing the present appeal after setting aside the impugned judgment and order.
The facts of the complaint case, in a nutshell, are that the Complainant invested Rs. 2,00,000.00 in MIS scheme with the Opposite Party/Teachers’ Welfare Agro Limited on 23.04.2009 and duly obtained certificate bearing no. AR/1092/09/36 having the maturity date on 23.04.2012. It has been alleged by the Complainant that he contacted with the Respondent/Investment Company before and after expiry of the maturity on several occasions for the purpose of getting refund of the matured amount but the Respondent Company refused to do so. It has been also alleged that the Appellant persuaded several times but the Respondents neither refunded the matured sum nor gave any positive assurance regarding the said refund. Under such circumstances the Complainant sent notice to the Respondent on 09.03.2017 but that too yielded no fruitful result. Finding no other alternative the Complainant was compelled to institute the Petition of complaint before the District Commission praying for relief and redressal as sought for in the prayer portion of the petition of complaint.
Ld. Counsel appearing for the Appellant has vehemently argued that the Ld. District Commission has caused gross mis-carriage of justice in dismissing the complaint case merely on the ground of technicality. He has further argued that the Ld. District Commission arrived at the definite conclusion without going into the merits of the case. It has been also argued that the Ld. Commission below did not consider the evidence adduced from the end of the Complainant. Ld. Counsel has prayed for allowing the present appeal after setting aside the impugned judgment and order. In support of his contention Ld. Counsel has relied upon the decision reported in Smt. Savita Garg—vs.—The Director National Heart passed on 12th October, 2004 by the Hon’ble Apex Court.
Ld. Commission below was pleased to dismiss the complaint case on the very ground of non-joinder of necessary party. In the body of the said order Ld. Commission below clearly held that the investment certificates go to show that the Complainant and one Aparna Bhowmick were the joint investors of Rs. 2 lakhs(MIS scheme). Said Aparna Bhowmick was not impleaded as a party to the complaint case. Ld. Commission below was also pleased to hold that the Complaint petition suffers from non-joinder of necessary party.
According to Section 2(1)(b)(iv) of the Act, Complainant means one or more Consumers, where there are numerous consumers having the same interest. Here in the instant case admittedly the Complainant and one Aparna Bhowmick were the joint investors of those schemes. Undoubtedly, they have got the same interest in those investments. Sri Madhumoy Bhowmick instituted the complaint proceeding before the Ld. District Commission praying for refund of the invested amount with the investment company along with interest as well as compensation and litigation cost. Sri Madhumoy Bhowmick filed the said complaint case alone without impleading Aparna Bhowmick as a party Complainant. The Consumer Protection Act is a beneficial legislation, mean to provide speedy, inexpensive and hassle free redressal to the grievance of the Consumers. The prime question that arises for consideration as to whether non-pleading Aparna Bhowmick as party Complainant is fatal. So far as the law with regard to the non-joinder of necessary party under the Code of Civil Procedure Order I Rule 9 and Order I Rule 10 of the C.P Code are very much clear explicit and exhaustive. No suit shall fail on the ground of mis-joinder or non-joinder of parties. Even the Court has the power under Order I Rule 10(4) to give direction to implead a person who is a necessary party. Court has also the power to implead a necessary party suo motu and it is the settled principles of law. Thus being the position of law non-impleading of Aparna Bhowmick as Complainant in the said proceeding cannot result in dismissal of the complaint case. The Consumer Forum is primarily meant to provide better protection in the interest of the consumers and not to circuit the matter or to defeat the claim merely on technical grounds.
Considering all aspects from all angles and keeping in mind the position of law and regard being had to the observations of the Hon’ble Apex Court reported in Smt. Savita Garg—vs.—The Director National Heart passed on 12th October, 2004, we have no option left but to hold that summary dismissal of the petition of complaint by the District Commission on the ground of non-joinder of necessary party is not at all prudent, just and proper. In case, the Complainant fails to substantiate the allegations and grievances by adducing cogent and satisfactory evidence then the complaint case will fail but not on the ground of non-joinder of necessary party. In our firm view Ld. Commission below ought to have given opportunity to the Complainant to implead Aparna Bhomick as a party complainant. In our considered view, Ld. District Commission was not at all correct and justified in dismissing the complaint petition solely on the ground of non-joinder of necessary party. The Complainant should be given opportunity to implead Aparna Bhowmick as a party Complainant in the proceeding.
Resultantly, we are inclined to allow the present appeal by setting aside the impugned judgment and order dated 28.02.2018 passed by the Ld. District Consumer Disputes Redressal Commission, Kolkata Unit—III in Complaint Case No. CC/277/2017.
Consequently, the present appeal succeeds.
The impugned judgment and order of the District Commission deserve interference of this Appellate Commission.
It is, therefore,
O R D E R E D
That the present Appeal being No. A/397/2018 be and the same is allowed ex parte against the Respondents but the considering the circumstances without any order as costs.
The impugned judgment and order dated 28.02.2018 passed by the District Consumer Disputes Redressal Commission, Kolkata Unit—III in Complaint Case No. CC/277/2017 are hereby set aside.
Let the case be remanded back to the Ld. District Commission for afresh hearing of the complaint case after giving opportunity to the Complainant for taking appropriate step for impleading Aparna Bhowmick as a party Complainant in the said proceeding and to dispose of the case in accordance with law.
Complainant is directed to appear before the Ld. District Commission on 10.06.2024 for receiving order/orders.
Let a copy of this judgment be transmitted to the Ld. District Commission forthwith for information and taking necessary action.
Let free copy of this judgment and order be sent to both the parties within seven days hereof.
Interim stay, if any, be vacated forthwith.
Thus, the appeal stands disposed of.
Note accordingly.
