PREMIER AUTOMOBILES LTD. vs JAYESH FABRICS

THIS Revision Petition has arisen out of the order dated 18.7.94 of the State Commission, Rajas-than at Jaipur dismissing the appeal of the Petitioner herein as barred by limitation. The District Forum, Jodhpur had allowed the complaint and directed the first Opposite Party to pay to the Complainant an additional amount of interest at the rate of 5% per annum on Advance Booking Amount of Rs. 11,000/- (already refunded with interest @ 7% per annum on 7.9.93) from 20.9.85 to 7.9.93.

MR . Lalit Bhasin, the learned Counsel for the Petitioner after some arguments on the findings of the State Commission on the question of limitation, confirmed his challenge to the direction in the impugned order of sending a copy of the order to the Chairman, Bar Council, Delhi to take action against Shri Viplav Sharma, Advocate for his misconduct. It is urged that the State Commission had gone beyond its jurisdiction in passing the order without any material or evidence on record on the question of alleged collusion and fabrication/destruction of documents by the Counsel to explain his version in the matter . It is also brought to our notice that an application on behalf of the said Counsel was made before that state Commission praying for the recall of the adverse observations and directions to the Bar Council. The Counsel for the Complainant had recorded on the application their no objection for the expunging of the remarks and direction. That application was dismissed by the State Commission on 30.8.94. The State Commission on the basis of the averments in the stay application dated 1.3.94 and the attestation of the affidavit on 30.12.93 in support of the appeal came to the conclusion that the appeal was filed on 1.3.94 and not on 24.12.93 and this is corroborated by the absence of an entry on that date in the relevant register maintained by the Clerk of the State Commission. The finding of the State Commission that the appeal filed on 1.3.94 against the order of the District Forum, Jodhpur dated 20.11.93 is barred by time is supported by the material on record. The Petitioner herein had applied for the certified copy of the order of the District Forum on 20.11.93 itself and the certified copy was ready for delivery on 23.11.93 and its delivery was taken on 27.11.93. After taking into consideration the time requisite for obtaining the certified copy, the appeal could be filed within limitation upto 24.12.93. There being no application for condonation of delay the appeal was rightly dismissed as barred by time.

THE foundation of the adverse observations is the endorsement dated 1.3.94 by the then Registrar of the State Commission on the back of the application moved by Mr. Viplav Sharma, Advocate to the effect "The appeal is said to have been presented on 24.12.93. Process and report on 3.3.94". According to the learned Counsel for the Petitioner herein, Mr. Viplav Sharma visited Jaipur to mention the appeal and stay application for urgent listing and when the Registrar enquired about the date of filing of the appeal, on information by the local dealer of the Petitioner at Jaipur who had filed the appeal, Shri Sharma gave that date. Certain strictures have been passed by the State Commission on the conduct of the officials of the State Commission, but there is no material on record, according to Counsel, to come to the conclusion that those officials had acted in collusion with the Advocate for the Petitioner. This submission is well founded.

COLLUSION is a deceitful agreement, or compact, between two or more persons for achieving an evil purpose. The appeal in question was not filed by Shri Sharma but by the local dealer of the Petitioner at Jaipur and as such Shri Sharma was not aware personally of the date of filing. He may have given the information as to date of filing as told to him by that representative. There was no basis for the State Commission to come to the conclusion of collusion between Shri Sharma and officials of the State Commission. It is no more than a mere assumption of a deceitful agreement. It is not permissible in law to base such a finding on mere surmise or conjecture. Again the State Commission has presumed without there being any valid on legal material on record that the records were tampered with by the officials in connivance with the Advocate. In the absence of a proper enquiry in consonance with the principles of natural justice, recording of the evidence and finding, there was no jurisdiction in the State Commission to give a direction to the Bar Council of Delhi to take action against Shri Sharma. That direction is, therefore, unsustainable and deserves to be deleted. The Revision Petition is allowed to the extent that the direction of the State Commission of sending a copy of the order dated 18th of July, 1994 of the Chairman, Bar Council, Delhi to take action against Shri Viplav Sharma for his misconduct shall stand deleted. We make no order as to costs.