RAJENDRA MANMOHAN BARTAKE vs H.G. ABHAYANKAR

THIS is an application filed by original opposite party to quash and set aside the order of this Commission dated 5.11.92 passed in Complaint No. 252/91. The applicant contended that written statement/reply in answer to the allegations of complainant Dr. H.G. Abhyankar presently, non-applicant, was sent to this Commission on 10.3.1992 by registered post with acknowledgement due and it was received in the Office of the State Commission on 6.3.1992. The applicant further contended that despite the said reply of applicant, this Commission proceeded exparte against him. The complainant further contended mat there was no deficiency in his service as he has completed the construction as per the second agreement dated 22.6.91. It is further submitted that complainant Dr. H.G. Abhyankar had filed a Civil Suit No. 1413/91 in the Court of Civil Judge, Sr. Division, Pune on 15.11.91 against the applicant inter alia praying for specific performance of the aforesaid agreement. It is further contended that Dr. Abhyankar prayed for a decree for specific performance of agreement or in the alternative claimed the reliefs of Rs. 2,00,000/- towards the cost of incomplete construction. It is also alleged that the Civil Court was moved by Dr. Abhyanakar for grants of injunction against this applicant. It is also stated that in the suit Dr. Abhayankar also applied for appointment of a Court Receiver. The applicant, therefore, submitted in this proceeding that being fully aware of the pendency of the civil suit and the prayers made therein, the Complaint No. 252/91 was filed by the complainant on 11.11.91 before this Commission and thus misled the State Commission. It is, therefore, prayed that the order passed by this Commission mentioned above dated 5.11.1992 be set aside.

ON receipt of the aforesaid application, we issued notice to Dr. H.G. Abhyankar and heard Shri Surana learned Advocate for the present applicant, Shri Rajendra Bartakke and Shri Pradhan, Advocate; and Shri Abhayankar in person. In the mean time, the complainant Dr. Abhyankar had approached this Commission u/Sec. 27 of the Consumer Protection Act, 1986 for action against the opposite patty in Misc. 18/ 92. Shri Abhyankar had also started execution proceedings before the Civil Court at Pune against the present applicant and the Civil Court had proceeded for the attachment of the applicant''s property and, therefore, considering the emergency, we also heard Misc. Application No. 18/93 together with Misc. Application No. 49/93.

According to Shri Surana, Advocate for the present applicant, Dr. H.G. Abhayankar suppressed the material facts from this Commission as a result of which the ex-parte order came to be passed against his client. Shri Surana has placed on record the copy of Special Civil Suit No. 1413/91 at Ex. "A" filed by Dr. Abhayankar in which the present applicant Shri Rajendra Baratakke is one of the defendants. It is important to note that the subject matter of property in the aforesaid Civil Suit and the property described in Complaint No. 252/91 is the same. The reading of the said claim clearly shows that Dr. Abhyankar inter alia has prayed for a decree of specific performance of contract dated 12.7.1989 and 22.6.1991 in respect of the same property. In the alternative the complainant has also prayed for the possession of the apartment in question. Alongwith the aforesaid plaint, Shri Surana has annexed at Ex. ''B'', a copy of the application for ad-interim injunction u/Order 39, Rules 1 and 2 of the CPC. At Ex. ''C'', there is a copy of an application for appointment, of Receiver under Order 40, Rule 1 of CP.Code. At Ex. ''E'', there is the copy of the written statement filed by applicant in Complaint No. 252/91. At Ex.''F'', there is postal acknowledgement, from mis Commission having received the said written version sent by Advocate of this applicant. Similarly, at Ex. ''G'' there is postal acknowledgement duly signed by Shri H.G. Abhyankar dated 6.3.1992 having received the copy of the written version sent by this applicant. At Ex. ''H'' is the copy of the communication from this Commission to complainant and opposite party alongwith the order of this Commission dated 5.11.1992. Shri Surana further contended that the aforesaid Civil Suit filed by Dr. Abhyankar is still pending before the Civil Court. It is also contended mat the Civil Court neither granted interim injunction, nor appointed the Receiver at the request of the complainant Shri Abhyankar. Shri Surana further contended that his client was represented by him and he had taken all the care of sending the written version to this Commission with a copy to Dr. Abhyankar. However, he could not attend the hearing of this Commission on 10.3.1992 as he was not aware about the date of hearing. Under these circumstances, Shri Surana submitted that Dr. H.G. Abhyankar has misled this Commission and had obtained ex-parte order without placing before the Commission the pendency of the civil suit and, therefore the order of this Commission dated 5.11.1992 be set aside. It is also contended by Shri Surana that being aware of these developments, Dr. Abhyankar hastened to proceed with the execution before the Civil Court and requested the Civil Court to attach applicant''s property and also moved this Commission u/Sec. 27 of the CP. Act, 86 for imposing the penalty on this applicant.

AS against this, Shri Abhyankar had admitted that although the suit is pending, the proceedings before the State Commission are not vitiated. Shri Abhyankar vehemently argued that the order of this Commission dated 5.11.92 required to be maintained as there is no provision for setting aside the ex-parte order under the provisions of the Consumer Protection Act, 1986. It is also contended by Dr. Abhyankar that since the original complaint has been disposed off by this Commission, the same has become "functions officio" and, therefore, cannot decide this Misc. Application. We do not agree with this submission of Dr. Abhyankar for the simple reason that the order of this Commission dated 5.11.92 which has been obtained by mis-representation and suppression of the material facts cannot be allowed to survive in view of the facts and circumstances of this case. We have given our anxious consideration to the submissions made by Shri Abhyankar and Shri Surana. In view of the events which are stated by Shri Surana alongwith the relevant documents, it is crystal clear that the Civil Suit No. 1413/91 was filed by Complainant Dr. Abhyankar in respect of the same property on 15.11.191; and without disclosing the filing of the Civil Suit, the Complaint No. 252/91 was submitted to this Commission for almost the same reliefs on 4.12.1991. Dr. Abhyankar nowhere in his complaint stated that he had filed a Civil Suit claiming specific performance of the agreements or in the alternative for possession of the flat in the Civil Court at Pune. We are, therefore, convinced that Dr. Abhyankar has misled this Commission by not disclosing the filing of the Civil Suit. It is also found that Dr. Abhyankar did not bring to the notice of this Commission that opposite party, Shri Rajendra Baratakke has filed his written version in answer to the allegations made in the Complaint No. 252/91. It is also important to note that the Office of this Commission did not place before this Commission the written version sent by Shri Rajendra Baratakke which was received by this Commission for which a postal acknowledgement for having received is placed for record. Thus, the ex-parte order has been passed by this Commission without considering the written version of Shri Rajendra Baratakke. Dr. Abhyankar also did not bring this fact to the notice of this Commission which has resulted into miscarriage of justice. We are aware that there is no provision for setting aside the ex-parte order either in the Act or under the Rules framed in the Consumer Protection Act. However, we are convinced that great injustice is being done to present applicant because of the ex-parte order passed by this Commission. The said order passed by this Commission, therefore, cannot be allowed to survive as it is likely to cause irreparable loss and injury to the applicant. The National Commission time and again repeatedly held that if the Civil Suit is pending for the same subject matter in the Civil Court, the Consumer Court should not proceed to decide the consumer complaint. Considering the facts and circumstances of this case, we are convinced that in the interest of justice, the ex-parte order passed by this Commission dated 5.11.92 requires to be set aside. Hence, we pass the following order: ORDER

THE order of this Commission dated 5.11.1992 passed in Complaint No. 252/91 is hereby declared as not surviving for the reasons mentioned above. Inform the parties. Ordered accordingly.