KAMAL MOTOR CO. vs SHYAM CHOUDHARY

HEARD.

THIS appeal is barred by limitation by 1407 days (3 years and 312 days). The explanation offered for this inordinate delay is that the service of notice alleged to have been sent by the Forum to the appellant through regd. post, was never effected upon the appellant. The appellant came to know of the impugned order on 23.10.2000 and thereafter approached the Forum to get the ex parte order set aside. Since the ex parte order was not set aside by the Forum, the present appeal was filed. In support of such contention the affidavit of Sudhanidhi Kasliwal, partner of the appellant firm, was filed. The impugned order was made by the Forum on 25.9.1998. The Forum has particularly mentioned in the said order that the notices of the complaint were sent to the appellant through regd. post A.D. and the service of notices was presumed upon the appellant. Service of letter through registered post, carries with it the presumption of service upon such person. The presumption created is rebuttable if convincing evidence is produced by the person concerned. In the present case the appellant himself says that he had come to know of the impugned order on 23.10.2000. On query from the Bench it was stated that the notices by the same Forum were sent in the course of proceedings under Sections 25/27 of the C.P. Act, 1986 and such notices, which were admittedly served upon the appellant, had been sent on the same address at which the earlier notice had been sent by the same Forum to the appellant by registered post. In view of such facts the Forum was justified in raising presumption of service of notice of the complaint upon the appellant.

Apart from the above once the service of the notice of proceedings under Sections 25/27 of the C.P. Act, 1986 had been effected upon the appellant, it would file an appeal against the impugned order under Section 15 of the C.P. Act, 1986. There was no provision for seeking setting aside the ex parte order, made on the merits of the case. The appellant is a partnership firm dealing in automobiles at a large scale and selling cars and other vehicles to the public at large against the orders booked by them. In the nature of the business activities being carried on by the appellant, it cannot be said that it or its officers or even its lawyers were not known the legal position that orders made by a Redressal Agency under the C.P. Act, 1986 on merits of the case cannot be reviewed by such authorities and that ex parte orders made on merits can also not be re-called and set aside by such authorities. The explanation offered by the appellant in respect of not approaching the Commission in appeal after its having come to know of the impugned order, is not satisfactory.

THEN, the Forum had dismissed appellant''s application under Order 9 Rule 13, CPC (which was not applicable to the proceedings under the C.P. Act, 1986) on 12.6.2002. Even after the dismissal of its application, this appeal was filed on 3.8.2002 i.e., with a delay of 1 months. This delay was also not explained. In view of the above we hold that the delay of 1407 days committed by the appellant in filing this appeal before the Commission has not been satisfactorily explained.

THE appeal is dismissed as barred by limitation. Appeal dismissed.