MVL Limited vs Nameesh Miglani

This appeal has been filed by the appellant , MVL Ltd. against the order dated 29.8.2013 passed by the State Consumer Disputes Redressal Commission, Haryana, Panchkula (for short, 'State Commission') in CC No.43/2013.

By the impugned order, the State Commission has allowed the complaint filed by the complainant against the OP/appellant herein while proceeding ex parte against the appellant. The appellant was proceeded ex parte vide order dated 25.7.2013 wherein the State Commission has presumed service on the OP as notice was not received back either served or unserved within 30 days from the date of issue. It was argued by learned counsel for the appellant that he was never served with any notice from the State Commission and the State Commission wrongly presumed service as neither the acknowledgment nor the notice served or unserved was received back in the State Commission.

Clearly this presumption cannot take away right of a party to appear and file the written statement before the Consumer Forum. Vide order dated 9.12.2016 of this Commission, the respondent was permitted to place on record the documents of postal department depicting delivery of notice to the appellant by the State Commission. However, no papers have been filed by the respondent in this regard. Learned counsel further stated that it is not clear from the order of the State Commission dated 25.7.2013 whether the registered notice was sent or it was sent by ordinary post. In this regard, learned counsel referred to the judgment of this Commission in Rampattiw Vs. Oriental Insurance Company Ltd. and another , 2016 SCC OnLine NCDRC 1238, wherein the following has been observed:

"Impugned order was passed on 19.11.2012. Ordersheet dated 19.11.2012 of State Commission reveals that notice was sent to complainant on 9.10.2012 but as notice was not received back, either served or unserved and 30 days already expired, presumption was drawn regarding service of notice on complainant and he was proceeded ex parte and arguments were heard and on the same day impugned order was passed. In aforesaid order-sheet, it has nowhere been mentioned that notice was sent by registered post. On enquiry from State Commission, it was no occasion for drawing presumption against complainant regarding service of notice on the ground that notice sent was not received back served or unserved. Had notice been sent by registered post and notice or AD not received back, presumption could have been drawn after expiry of 30 days, but as notice was sent by ordinary post, which was not received by the complainant, and deciding appeal without giving proper opportunity of being heard to the complainant. In such circumstances, impugned order is liable to set aside."

Learned counsel for the appellant further stated that there has been delay of 79 days in filing the present appeal and the delay has basically happened due to the fact that the appellant was proceeded ex parte before the State Commission. It has been stated in the application for condonation of delay that respondent had come to the office of the appellant on 7.11.2013 and handed over the copy of the impugned order then the appellant came to know about ex parte order passed by the State Commission and accordingly, copy of the order was obtained and appeal has been filed and the delay is not intentional and it would not cause any prejudice to the other party if delay is condoned. It was further argued that the complainant was defaulter and a demand was sent to the respondent for the amount due. However, the State Commission without seeing the version of the appellant herein has waived off that demand. Moreover, interest @ 18% p.a. has been granted to the complainant on the deposited amount from the date of due possession till actual payment. This commission is not ordering 18% p.a. interest even on refund cases of the paid amount wherein no possession is given to the complainant and in refund cases, this Commission is ordering maximum 12% p.a. interest and this Commission is ordering only 5 to 8% per annum interest depending upon situation in each case for delayed possession. Thus, the order of the State Commission for waiving off demand of Rs.9,36,000/- and ordering payment of interest @ 18% p.a. on the deposited amount from 1st January, 2008 is totally illegal and unjustified. Appellant must be given a chance to give its version before the State Commission so that the complaint may be decided on actual merits.

On the other hand, learned counsel for the respondent/complainant stated that the respondent personally handed over the copy of the impugned order on 7.11.2013 to the appellant and the appeal has been filed on 27.12.2013. Thus, clearly even from 7.11.2013 there is a delay of about 20 days in filing the current appeal and there is a delay of 79 days from the date of impugned order. No sufficient reason has been given in the application for condonation of delay filed by the appellant and therefore, this appeal is liable to be dismissed only on the ground of limitation.

It was further argued by learned counsel for the respondent that the State Commission has clearly passed order dated 29.8.2013 that the notice was sent, however, neither it was returned served nor unserved or any acknowledgement was received within a period of 30 days from the date of issue of notice and hence under Section 28A(3) of the C.P Act, 1986, the State Commission has treated the OP/appellant herein as served. The learned counsel for the complainant further stated that because there was no progress in construction, so some of the instalments were delayed by the complainant. However, he had genuine reasons for the same.

I have carefully considered the arguments of both sides and examined the material on record.

First of all, it is seen that there is a delay of 79 days in filing the present appeal. Even if the knowledge of the appellant is taken from 7.11.2013, when the respondent served the copy of the impugned order of the State Commission on the appellant, still there is a delay of about 20 days in filing the appeal as the appeal has been filed on 27.12.2013. This delay is condoned at a cost of Rs.20,000/- on the ground mentioned in the application for condonation of delay. This cost be paid by the appellant to the respondent/complainant by way of demand draft before the State Commission.

It seems that because there was no opposition from the OP in the complaint case before the State Commission, the State Commission has allowed the total prayers mentioned in the complaint. There is no proof of service of notice on the OP. Section 28A(3) of the Consumer Protection Act, reads as under:

"28A. Service of notice, etc.-

(3) When an acknowledgment or any other receipt purporting to be signed by the opposite party or his agent or by the complainant is received by the District Forum, the State Commission or the National Commission, as the case may be, or postal article containing the notice is received back by such District Forum, State Commission or the National Commission, with an endorsement purporting to have been made by a postal employee or by any person authorized by the courier service to the effect that the opposite party or his agent or complainant had refused to take delivery of the postal article containing the notice or had refused to accept the notice by any other means specified in sub-section (2) when tendered or transmitted to him, the District Forum or the State Commission or the National Commission, as the case may be, shall declare that the notice had been duly served on the opposite party or to the complainant.

Provided that where the notice was properly addressed, pre-paid and duly sent by registered post acknowledgment due, a declaration referred to in this sub-section shall be made notwithstanding the fact that the acknowledgment has been lost or mislaid, or for any other reason, has not been received by the District Forum, the State Commission or the National Commission, as the case may be, within thirty days from the date of issue of notice."

It is thus clear that OP has not got any opportunity of putting forward its defence before the State Commission and it has been alleged that the order passed by the State Commission is also excessive in nature against the OP wherein the State Commission has not considered the basis of demand raised by the OP. In the circumstances of the case, I deem it appropriate to set aside the order dated 29.8.2013 passed by the State Commission and an opportunity is granted to the OP to file its written statement within a period of 30 days from the date of this order before the State Commission. In Reliance General Insurance Company Ltd. And another vs. M/s. Mampee Timbers and Hardwares Pvt. Ltd. And another [Civil Appeal No.....of 2017 (D. No.2365 of 2017) decided on 10.2.2017 the Hon'ble Supreme Court has allowed Consumer Fora to accept the written statement filed with delay in appropriate cases on suitable terms. The order reads as under:

"We consider it appropriate to direct that pending decision of the larger bench, it will be open to the concerned Fora to accept the written statement filed beyond the stipulated time of 45 days in an appropriate case, on suitable terms, including the payment of costs, and to proceed with the matter".

Based on the above discussion, the appeal is allowed at a cost of Rs.20,000/- for condoning the delay in filing appeal. Both the orders of the State Commission dated 25.7.2013 and 29.8.2013 are set aside and the appellant is allowed to file written statement before the State Commission within a period of 30 days from the date of this order at a cost of Rs.50,000/- to be paid to the complainant by the appellant/OP before the State Commission by way of demand draft in the name of the complainant. The State Commission to proceed with the case only after both the amounts of Rs.20,000/- and Rs.50,000/- are paid by the appellant/OP to the respondent/complainant.

The State Commission shall also be free to pass any further order in the light of the judgment of the Hon'ble Supreme Court in Reliance General Insurance Company Ltd. And another vs. M/s. Mampee Timbers and Hardwares Pvt. Ltd. And another(supra) and also to give appropriate time for compliance of this order on appropriate terms.

Parties to appear before the State Commission on 05.11.2018.