District : South 24 Parganas
Before the Hon’ble District
Consumer Disputes Redressal Forum, at Baruipur, South 24 Parganas.
CC
/ 118 / 2015
In
the matter of :
Pijush
Kanti Gayen
_________Complainant
-
Versus –
Bindhachal
Construction, and others.
__________Respondents
Written
Notes of Argument
On
petition for vacating exparte order
Facts :
1.
On 14-03-2016, the Hon’ble Forum
passed the following Orders as “Today is fixed for S.R. all the O.Ps. But it
appears that case is being proceeded exparte against the O..P. nos. 1 to 7 but
complainant has filed one application for amendment to insert the name of O.P.
8 that is why after allowing the said prayer for amendment we have inserted the
name of Subhasish Mondal who is a necessary party in this case. So, the S/R was
served to Subhasish Mondal but he did not appear. Accordingly case will run
against Subhasish Moncal in exparte. It appears that O.P. nos. 2 to 7 file one
application for allowing them to file written version which is supported by
Vokalatnama. In view of the reported Judgment of the Hon’ble Apex Court in
Civil Appeal NO. 8155 A 2001 as well as Hon’ble State Commissio0n under section
22 A of the C.P. Act, this Forum or Bench has no power to review its own order,
that is why, exparte order which is running against O.P. nos 1 to 7 cannot be
allowed to file any written version and after carefully studying the view of
the Hon’ble Supreme Court that only Hon’ble National Commission has power to
review the same and in a similar case of Hon’ble State Commission also
expressed their views that they have no power, that is why prayer of the O.P.
nos. 2 to 7 cannot be accepted at this stage for want of power in view of
Section 22 A of the C.P. Act as well as the judgment of the Hon’ble Apex Court
as well as hon’ble State Commission. Now we find that complainant has filed one
application under section 13 (3B) of the C.P. Act, with an apprehension that
property in dispute may be transferred to the third party in collusion with the
O.P. now. 2 to 7. This application is supported by an affidavit. We have
nothing to disbelieve the prayer as unfolded under section 13(3B) of the C.P.
Act and the Hon’ble Legislature has introduced the said Act only to protect the
interest of the Consumer at large by the hands of the unruly O.Ps/developers.
Here in the instant case we find that it is the proper time to invoke the
power, that is why, let there be an interim order restraining the O.P. nos . 1
to 8 and there men and agents not to transfer the schedule property to any
third party fixing 18/04/2016 for exparte evidence and argument , if possible
along with petition under section 13 (3B) of the C.P. Act.”
2.
That the O.P. no. 8, was not in
knowledge of the present proceeding as he was not in receipt of the notice has
ever served by the Hon’ble Forum.
3.
That the O.P. no. 8, as soon as came
into knowledge of the present proceeding from the mouth of the other opposite
parties, he took all necessary endavour to submit his written version, and
place necessary applications in the present proceeding before the Hon’ble
Forum, in the interest of administration of justice.
4.
That this is much necessary in the
interest of equity and substantial justice to vacate the exparte order against
the O.P. no. 8, herein, in the interest of administration of justice.
5.
That the O.P. no.8, filed and
submitted his Written version, a petition for vacating exparte order against
him, and one misc. application on maintainability, in the present proceeding,
before the Hon’ble Forum.
Judicial references
as discussed by the Hon’ble Forum :
“ In view of the reported Judgment of
the Hon’ble Apex Court in Civil Appeal NO. 8155 A 2001 as well as Hon’ble State
Commissio0n under section 22 A of the C.P. Act, this Forum or Bench has no
power to review its own order, that is why, exparte order which is running
against O.P. nos 1 to 7 cannot be allowed to file any written version and after
carefully studying the view of the Hon’ble Supreme Court that only Hon’ble
National Commission has power to review the same and in a similar case of
Hon’ble State Commission also expressed their views that they have no power,
that is why prayer of the O.P. nos. 2 to 7 cannot be accepted at this stage for
want of power in view of Section 22 A of the C.P. Act as well as the judgment
of the Hon’ble Apex Court as well as hon’ble State Commission.”
Discussion
of Judicial References :
1.
The Hon’ble Supreme Court in its decision rendered
in Jyotsana
Arvind Kumar Shah & ors Vs. Bombay Hospital Trust, reported in III (1999) CPJ 1 (SC), held that the
State Commission has no powers to set aside an exprte order as there is no provision in the Act.
2.
Subsequently, the Hon’ble Supreme Court, in its
decision rendered in New India Assurance Co. Ltd., Vs. R.
Srinivasan , reported in I
(2000) CPJ 19 (SC) has held that inherent power is vested upon the
Commission to restore the complaint on good cause being shown for
non-appearance of the complainant.
3.
Subsequently in the decision rendered by the
Hon’ble Supreme Court in Rajeev Hitendra Pathan and others Vs. Achyut Kashinath
karekar and another reported in 2007 CTJ
1123 (Supreme Court ) (CP) took a view that when the matter was decided in R. Srinivasan’s case, the bench was not
appraised of the earlier decision rendered in Jyotsana’s case, and accordingly the matter was referred to a
larger bench and the matter is still pending.
4.
The Hon’ble Supreme Court, rendered in an identical
case. The Apex court in Grindlays
Bank Ltd., Vs. The Central Government Industrial Tribunal & Ors. Reported
in 1981 L.I.C 155 = AIR 1981 SC 606 =
1980 Supp. SCC 420 in para 6, has held as follows:
“We are of the opinion that the Tribunal had the
power to pass the impugned order if it thought fit in the interest of
justice. It is true that there is no
express provision in the Act or the rules framed thereunder giving the Tribunal
jurisdiction to do so. But it is a
well-known rule of statutory construction that a Tribunal or body should be
considered to be endowed with such ancillary or incidental powers as are
necessary to discharge its functions effectively for the purpose of doing
justice between the parties. In a case
of this nature, we are of the view that the Tribunal should be considered as
invested with such incidental or ancillary powers there is any indication in
the statute to the contrary”. We do not
find any such statutory prohibition. On
the other hand, there are indications to
the contrary.”
It is also observed
in para 14 as follows:
“There is no finality attached to an exparte
award because it is always subject to its being set aside on sufficient cause
being shows.”
5.
The Hon’ble Supreme Court in R. Srinivasan’s case clearly proceeds to the effect that the power
is vested upon the Consumer Fora under the inherent jurisdiction, until a
categorical finding is rendered by the larger bench of the Hon’ble Supreme
Court the later decision has to be
applied by all the District Fora.
6.
The Hon’ble State Consumer Disputes Redressal
Commission, Chennai, presented by Hon’ble Justice N. Kannadasan, President, and
Hon’ble Member Thiru Pon Gunasekaran, held in suo moto reference : Case 1 /
2008 under Section 24(B) (i) (ii) read with Section 24(B) (II), application by
the Madras Consumer Courts Bar Association, as “Prior to 1993, there was no specific
provision in the CP Act, with regard to the period of limitation. Only by Act 50 of 1993, Sec. 24(A) was
introduced, wherein a period of two years limitation is prescribed for filing a
complaint. In a given case, if a
complaint is dismissed for default, after a period of 2 years from the date of
its institution, if the power for restoration is not granted even where
sufficient cause is shown, the complainant would not be in a position to file
the 2nd complaint. In such
situation, even if a genuine grievance exists for litigant, due to unforeseen
reasons, he will not be in a position to seek remedy. When the Rules framed
under the Act, views an express power in dismissing the case on default, when
the litigant comes forward to show sufficient cause with a an impeccable
reasons for his non-appearance, whether redressal agencies would be helpless in
the matter or to repeat the words of Lord Denning that it must fold their hands
and deny redress, where it is patently due.
In our opinion, we are of the view that refusal to restore even when
sufficient good cause is shown, would be a patent miscarriage of justice. It is only under the said larger principle,
the legislature incorporated the provisions in the Civil Procedure Code for a
restoration of a suit or appeal.
Eventhough those provisions instricto-sensu
are not at all attracted to the consumer jurisdiction, the principles
underlying then would be equally attracted for granting redress, in a manifest
situation requiring restoration of the lis. Even otherwise, when the later decision of
the Hon’ble Supreme Court in R.
Srinivasan’s case clearly proceeds to the effect that the power is vested
upon the Consumer Fora under the inherent jurisdiction, until a categorical
finding is rendered by the larger bench of the Hon’ble Supreme Court the later decision has to be applied by all
the District Fora.
In the light of the above discussions, we
answer the references as follows:
1.
The District Forum has got power to restore
the complaint which was dismissed for default.
2.
The District Forum has got power to set
aside the exparte order setting the
opposite party exparte. If a final order
is passed on merits, the District Forum has no power to set aside the said
decision which is passed on merits.
The Suo moto reference is disposed of in the
above terms.”
Conclusion :
The
present petition for vacating exparte order against the Opposite Party no.8,
should be allowed in terms of the above discussions and judicial references
relied on, in the interest of administration of justice, keeping in mind the
words of Lord Denning that it must fold their hands and deny redress, where it is
patently due.
Through _______________
Advocate for the Opposite Party no.8.
Date : 18th day of April’
2016.
Place : Baruipur, South 24 Parganas.
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