Upkar Transport Company and Anr. vs Birla Typres Gandhi Nagar, Jammu

The petitioners, M/s Upkar Transport Company, through its Managing Director, Ram Dass Gupta and Manager, have approached the Court

with prayer for setting aside the order dated 17042003 passed by the J&K State Consumers Protection Commission, Jammu (hereinafter for short

referred to as ""the State Commission""), whereby the order of the Divisional Forum, Jammu, challenged in appeal by the petitioners for setting aside

the exparte award, has been upheld and the appeal dismissed.

The respondent/complainant booked certain consignment of tubes, tyres and flaps with the petitionerTransport Company to be delivered in the

office of the respondent at Srinagar. The respondent, in alleging nondelivery and nonpayment of the consignment, preferred a complaint before the

Divisional Forum and an award of Rs.1,68,000/ with 12% interest was passed on 13031999. The respondent filed an application seeking

execution of the exparte award before the Divisional Forum and warrant of attachment was issued. The petitioners, however, preferred an

application seeking setting aside the execution of the award before the Divisional Forum, which, however, came to be dismissed on 23rd October,

2002. Aggrieved by the dismissal of the application for setting aside the exparte award, the petitioners preferred an appeal before the State

Commission seeking its setting aside.

The stand of the petitioners before the Divisional Forum for setting aside the exparte decree was that they received the knowledge about the

complaint only on 31st August, 2001 through newspaper. This plea, how ever, did not merit acceptance with the Divisional Forum, which finally

dismissed the application vide order dated 23102002, which became subject matter of challenge before the State Commission.

The State Commission, after hearing the learned counsel for the parties, found that the application for setting aside the exparte decree was not

supported by an affidavit and this perhaps has purposely been done by the petitioners, as they had the knowledge of the complaint before the

Divisional Forum, filed by the respondent much earlier and in respect of which he had also resorted to a suit in the Civil Court wherein he had

admitted to have got the knowledge of the award in last week of September, 1999. The State Commission further found this fact in the award and

in the complaint; even affirmed from the certified copy of the suit and the order of the Court as well. The petitioners, thus, having admitted to have

clear knowledge of the award in September, 1999 and so is also borne out from the record. It was further revealed from the record that the

petitioners had filed an application after more than two years for setting aside exparte award, though notice was duly served on them through

postal receipt, but made an application seeking setting aside the award on a false plea of having no knowledge up to August, 2001. Therefore,

negligence, inaction and want of bona fide is clearly imputable to the petitioners for their nonappearance and exparte proceedings taken, which

ultimately led to the passing of the award, of which they are aggrieved. It is also proved from record that the petitioners had already acquired the

knowledge, as is gatherable from the clear admission of this fact in the suit filed by them in the Civil Court.

In the above view of the matter, the petitioners have not succeeded in carving out a prima facie case for interference in the order passed by the

State Commission in invoking the exercise of writ jurisdiction under Article 226 of the Constitution of India read with section 103 of the

Constitution of Jammu and Kashmir.

In the result, I do not find any merit to maintain this writ petition, which is, accordingly dismissed at the preliminary stage of admission.