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Judgment
Subhash Chandra, Presiding Member;
The present appeal under section 51(5) of the Consumer Protection Act, 2019 has been filed against the order dated 08.06.2022 passed by the Telangana State Consumer Disputes Redressal Commission, Hyderabad (in short, ‘the State Commission’) in CC no. 133 of 2014 whereby the State Commission has dismissed the complaint on the grounds of non-prosecution due to the absence of the appellant’s counsel.
Briefly put, facts of the case are that by way of an agreement dated 28.02.2013 between the appellant and the respondent no.1, the respondent no.1 was to construct two buildings on Sy no.60, 61, 62 at Yajmal Village, Shameerpet Mandal, Ranga Reddy District and to hand over the same within 6-8 months from the date of the agreement or from the date of letter or credit. The respondent was to use 109 MT of steel for the construction of each building with variance of 2% and 11 turbo vents for each building apart from other accessories. The total consideration of the construction was Rs.1,90,00,000/-. Respondent no.2 on behalf of the appellant issued a letter of credit-bearing no.021LC03131030002 dated 15.04.2013 for Rs.1,80,50,000/-. According to this letter, Rs.1,42,50,000/- was payable on complete material supply and Rs.38,00,000/- for fabrication/ erection of the two buildings. Further, the respondent no.2 shall release the payment of Rs.71,25,000/- for each building after complete shipment of the materials for one building and after production of the documents. Respondent no.1 failed to complete the work within the specific time and did not use the material as per the agreement. Only 80.94 MT steel for building A2 was utilized as against 109 MT, and therefore, there was a variation of 28.06 MT as is evident from the weighment slips of respondent no1. Further, the respondent no.1 failed to fix 11 turbo vents in each building as per the agreement. Furthermore, Respondent no.2 released the money without verifying the required mandatory documents as mentioned in the credit letter dated 156.04.2013.
On 01.04.2014 the appellant issued a legal notice to the respondent demanding Rs.20,00,000/- towards the cost of the steel and Rs.2,00,000/- towards the cost of turbo vents and Rs.20,00,000/- towards compensation/ damages for constructing and delivering a defective building along with interest @ 24% per annum. While the legal notice was received by respondent no.1, notice issued to respondent no.2 was returned back unserved with an endorsement ‘refused’. Respondent no.1, however, did not file any reply to the legal notice issued by the appellant. Thereafter, the appellant filed complaint no. CC no.133 of 2014 before the State Commission. The complaint was listed on 08.06.2022 but the counsel for the appellant failed to appear before the State Commission which dismissed the appeal. Appellant contends that he was unable to attend due to medical reasons and has filed a copy of the medical certificate to substantiate his absence.
Appellant has approached this Commission and prayed to:
a. Set aside the order dated 08.06.2022 passed by the State Commission in CC no.133 of 2014;
b. Pass such further other(s) which this Commission may deem fit and proper in the interest of justice.
On being noticed respondent no.2 filed his reply inter alia contending deficiency on part of the appellant and claiming compensation. It is argued that the appeal is based on a concocted story which has no relevance to prove the case of the appellant. Learned counsel for respondent no.2 stated that it was a Banking Company engaged in the business of providing banking services. The duly constituted attorney of the Bank had been duly authorized to represent the respondent no.2 to defend the case before any court of law. It was stated that the appellant had approached respondent no.2 by filing an Application and Agreement for irrevocable and documentary credit on 12.04.2013 requesting for an irrevocable and non-transferable Letter of Credit (LC) for Rs.1,80,50,000/- in favour of respondent no.1, viz., M/s Kirby Building Systems India Ltd. The said LC was to expire on 15.08.2013. It was further contended on behalf of respondent no.2 that the appellant had entered into an agreement for construction of a pre-engineered steel building. On the application of the appellant a LC dated 15.04.2013 was issued by the respondent no.2 – Bank. The said LC was to be encashed by respondent no.1 in two parts. On 29.04.2013, the appellant requested to respondent no.2 to make some amendments in the LC dated 15.04.2013 through a letter. Learned counsel for respondent no.2 further submitted that the appellant also authorized the Bank to debit relevant charges for making amendments in the LC. On the request of the appellant, the respondent no.2 made amendments in the LC and issued an amendment on 30.04.2013. Learned counsel for respondent no.2 stated that the respondent no.2 – Bank after due verification of all the documents as per the terms and conditions of the Letter of Credit remitted the bill amount. The said Letter of Credit was issued subject to the Uniform Customs and Practice for Documentary Credits (2007 revision) Publication no.600 which was the official publication issued by the International Chamber of Commerce (ICC). The respondent Bank in accordance with the guidelines of the Reserve Bank of India, paid the LC on maturity.
Respondent no.2 submits that vide order dated 11.07.2014, the State Commission simply recorded that “M/s Indus Law Firm filed Vakalat from OP no.1. As the notice sent to OP 2 was ‘refused’. Service of notice on OP 2 is deemed sufficient. Call on 13.08.2014 for filing written version of OP no.1” . Thereafter the matter was proceeded without the respondent no.2 Bank on ground of notice deemed served and the respondent no.2 was not given a fair chance to contest the matter on merits before the State Commission. Respondent no.2 further states that the case of the appellant was dismissed for non-prosecution.
Respondent no.2 prayed that (a) the appeal be dismissed with cost; (b) respondent no.2 be allowed to contest the present Consumer Complaint on merits before the State Commission based on its written version on record; and (c) pass / make such other appropriate order (s) and/ or direction as this Hon’ble Commission may deem fit and proper in the facts and circumstances of the present case.
We have heard the learned counsel for the parties and have carefully gone through the record.
The State Commission had dismissed the complaint for non-prosecution due to counsel for the appellant on 08.06.2022 not being present. The appellant’s case is that it was due to medical exigencies that he could not attend and to support his contention, counsel for the appellant has also filed a medical certificate. Appellant has prayed that the impugned order be set aside and the matter be remanded to the State Commission for fresh adjudication with opportunity to him. Learned counsel for respondent nos.1 and 2 fairly concedes the request of the learned counsel for the complainant that due opportunity be given to the complainant to put forth his case before the State Commission.
We find merit in the submissions of the learned counsel for the appellant. In view of the foregoing discussion, the appeal is allowed and the impugned order is set aside and the matter is remanded to the State Commission for fresh adjudication after giving due opportunity to the parties.
Parties are directed to appear before the State Commission on 10th July 2024.