H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA.

Appeal No. 227/2008.

Reserved on 11.8.2009.

Date of Decision 25.8.2009.

In the matter of:



Ram Krishan Chand S/o Sh. Sukh Ram R/o Village Patta,

PO Naswal, Tehsil Ghumarwin, District Bilaspur, HP (Agent

of Sarv Priya Forests, an Agro Forestry concern Registered

and H.P. SCO 152, Sector 24-D, Chandigarh.

… … Appellant.

Versus



1. Sh. Dev Raj S/o Sh. Longu Ram R/o Village

Kalari, Pargana Tiun, Tehsil Ghumarwin,

Distt. Bilaspur, HP.,

… … Respondent/complainant.



2. Sh. T.C. Mahindru (died) represented through LRs:-



(i) Sh. P.S. Chaudhary, Director, M/s Serv Priya Forests

(India) Ltd., an Agro Forestry concern S/o Sh. Fajloo Deen

Chaudhary, House No. 2628/2, Sector 47-C, Chandigarh.,



(ii) Smt. Kamla Dogra W/o Sh. Dharam Dass Dogra,

House No. 109, K.L. Colony, Chandigarh.,



(iii) Smt. Sudesh Dutt, Director, House No. C-155

Complex, Sector-14, Chandigarh.

… … Respondents.



Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether approved for reporting? Yes.



For the Appellant.: Mr. Vijay Bhatia, Advocate.



For the Respondents.: Ex-parte.



O R D E R



Justice Arun Kumar Goel (Retd.), President.



From the averment made in the complaint what emerges is, that appellant was agent of Servpriya Forest (India) Ltd., having its registered and HO, at SCO 152, Sector-24-D, Chandigarh.

2. Late Sh. T.C. Mahindru was its Managing Director and Smt. Sudesh Dutt was its Director. Sh. Mahindru died during the pendency of the complaint. Sh. P.S. Chaudhary as well as Smt. Kamla Dogra being his legal representatives, were added as party as per order of District Forum dated 27.12.2005. Sh. P.S. Chaudhary was also Director of the company.

3. Further according to respondent No.1, on the assurance of good returns and timely maturity payment of the investment under FDR/recurring schemes, held out by the appellant he invested Rs. 90/- per month under table No. 2/7 in the sum of Rs. 9,000/-. Last amount was deposited on 3.12.1992. This again was collected by the appellant from respondent No.1 at village Kalari.

4. RD @ Rs. 100/- per month was also started by the respondent No.1 from 27.3.1993 and he was regularly depositing the said amount upto 30.12.1995. In paragraph 3 of the complaint case of the appellant was, that this amount was deposited with respondent No.2, through the appellant and receipts were issued by them. On the maturity of above deposited amounts, the respondent No.1 asked the appellant because of his urgent need for getting the amount released. This issue was lingered on by the appellant till October, 2002 and on 30.12.2002, the appellant is stated to have shown his inability to get the RD account settled, as Chandigarh office had been closed and it refused to admit the claim of the respondent No.1.

5. In this background a complaint was filed claiming Rs. 9,000/- + Rs. 3,000/- alongwith 18% interest till the final realization of this amount, besides Rs. 5,000/- as compensation for harassment and Rs. 500/- as cost. Record of the complaint file shows that none of the opposite parties, i.e. the appellant as well as respondents other than respondent No.1 in this appeal were ever served as required under law. Still they were set ex-parte vide order dated 6.3.2006. It reads as under:-

“Notice issued to the opposite parties received back unexecuted. From the record, it is evident that the opposite parties are intentionally evading the service of the notice and they are fully aware of the complaint pending before this Forum against them. On these facts of the matter, we are satisfied that the opposite parties are not appearing despite knowledge of the complaint against them pending in this Forum, accordingly, the opposite parties are proceeded against ex parte.

Now to come up for filing ex parte evidence on 18.3.2006.

Sd/- Sd/-

President Member.”

6. Finally vide impugned order, complaint was allowed and appellant alongwith other respondents except respondent No.1 were held jointly and severally liable to pay the sum of Rs. 9000/- + Rs. 3000/- as matured amount of RD alongwith interest @ 9% per annum from the date of filing of the complaint, i.e. 27.11.2002 till its realization, besides cost of Rs. 500/-. Hence this appeal by the appellant.

7. A perusal of the order dated 6.3.2006 whereby the appellant alongwith other opposite parties were set ex parte by the District Forum below in the complaint shows, that by no stretch of imagination the said order can be sustained in the eyes of law. On what basis District Forum below assumed that opposite parties were intentionally evading the service of notice and they being fully aware of the pending complaint before it, is nothing but a mere surmise as well as conjecture without any legal basis for having arrived at it. In these circumstances, we are of the view that the appellant alongwith other opposite parties were not at all served and proceeding them against ex parte is neither justifiable in law nor in the facts and circumstances of this case. Thus the order dated 6.3.2006 needs to be set aside.

8. What further falls from this is, that this tantamounts to condemning a person unheard to his dis-advantage without affording him a reasonable opportunity of being heard. This is otherwise the imperative requirement of law, i.e. Consumer Protection Act, 1986 and the rules framed thereunder. Besides this, it is also the minimum requirement of principles of natural justice, equity and fairplay to ensure that rule of law prevails. This minimum requirement has been followed more in breach than compliance by the District Forum below.

9. In the face of this conclusion all subsequent proceedings including the impugned order passed by District Forum below, in Consumer Complaint No. 13/2003, dated 18.4.2006 must fall. Ordered accordingly.

10. With a view to advance the case of his client, Mr. Bhatia learned counsel for the appellant urged that liability, if any is that of the company of which late Sh. T.C. Mahindru was the Managing Director and Mr. P.S. Chaudhary, Smt. Kamla Dogra and Smt. Sudesh Dutt who were the Directors and LRs of Sh. T.C. Mahindru, all three were liable for the return of the amount. Reason being that amount that was deposited by respondent No.1 through Annexures C-1 to C-47 in the sum of Rs. 90/- per month was with M/s Sarvpriya Finance and Investment Company Ltd. These receipts are duly signed by Sh. Tara Chand Mahindru, Managing Director.

11. Similarly, the amount deposited vide Annexures C-48 to C-75 was again deposited by respondent No.1 with Sarvpriya Forests (India) Ltd. and not with the appellant. At this stage, Mr. Bhatia drew our attention to paragraph 1 of the complaint and pointed out that it was admitted case of respondent No.1, that the appellant was the local agent at Ghumarwin of the said company. Thus according to him District Forum below, erred while holding his client liable. And by referring to a decision of the National Commission in Revision Petition No. 2243/1999, he urged that this appeal deserves to be allowed and he prayed for accordingly.

12. In addition to this, Mr. Bhatia also pointed out that the complaint was bad for mis-joinder for causes of actions, as well as for non-joinder of necessary parties. In this behalf, he again referred to Annexures C-1 to C-47 and pointed out that the money had been deposited by respondent No.1 with Sarvpriya Finance and Investment Company Ltd., by making monthly payments of Rs. 90/-. Whereas vide Annexures C-48 to C-75 the amount had been deposited with Sarvpriya Forests (India) Ltd. Per him both in law are separate corporate entities. On this ground also he prayed for allowing this appeal and prayed for accordingly.

13. So far submissions of Mr. Bhatia that his client was only an agent and had incurred no liability and also that the complaint was bad for non-joinder of necessary parties, i.e. M/s Sarvpriya Finance and Investment Company Ltd. as well as M/s Sarvpriya Forests (India ) Ltd are concerned, we are not expressing any opinion on the merits, because we have held that appellant as well as other opposite parties were not served in accordance with law and the District Forum below acted contrary to law without any lawful basis by assuming that all of them were intentionally evading the service of notice and at the same time being fully aware about the pendency of the complaint, thus were not appearing despite said knowledge. This according to us is a mere surmise without any basis and therefore, the impugned order passed by District Forum below in Consumer Complaint No. 13/2003, dated 18.4.2006 needs to be set aside. Ordered accordingly. We reiterate at the risk of repetition here, that all other questions including non-joinder of necessary parties, mis-joinder of causes of actions, as well as appellant being merely an agent and had incurred no liability are left open to be adjudicated upon by the District Forum below on the basis of the material that may be produced by the party(s) before it in accordance with law.

14. Accordingly while allowing this appeal, said order of the District Forum below is hereby set aside and the complaint is remanded to the District Forum below with the direction to take it up on priority basis and dispose it of by or before 31.12.2009 and if felt necessary, by taking it even at Bilaspur as well as Hamirpur. Reason for giving this direction is, that this case pertains to the year 2003. Appellant shall appear before the District Forum at Bilaspur on 15.9.2009 and on this date District Forum below is directed to issue notice to Sh. Gian Chand Rattan Advocate, Ghumarwin, learned counsel for respondent No.1 through whom he had filed the complaint. Separate notice upon respondent No.1 will not be issued. In case Mr. G.C. Rattan, Advocate does not appear despite service, the District Forum below shall proceed to deal with the matter further in accordance with law. On the aforesaid date appellant shall file reply to the complaint. It hardly needs to be mentioned here that the District Forum below shall proceed without being prejudiced either by its earlier order whereby the complaint was allowed, or by anything said by us in this order because it is meant only for the limited purpose as discussed above. No costs.

Learned counsel for the appellant has undertaken to collect copy of this order from the Court Secretary free of cost as per rules, and office is directed to send the same in the like manner to the respondents.

Office is directed to send the record well before the date fixed.



Shimla,

August 25, 2009. ( Justice Arun Kumar Goel ) (Retd.)

President.



(Saroj Sharma)

Member.



( Chander Shekher Sharma )

/Karan/ Member.