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



Appeal No. 207/2008.

Date of Decision 15.07.2009.

In the matter of:



NIMACT, Resource Development Centre, 7, Ram

Bagh, Allahabad.

… … Appellant.

Versus



1. Surinder Kumar C/o 1 Computers, Una Road,

Amb, District Una, H.P.,



2. Mrs. Rati Sagar, Regional Co-ordinator, Regional

Office at Web Services, 14, First Floor, Bye Pass Chowk,

Jagadhari Road, Yamuna Nagar, Haryana, 135 001.

… … 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. Praveen Chandel, Advocate vice

Mr. Ajay Sharma, Advocate.



For the Respondent No.1 : Mr. Vipin Potyaan, Advocate vice

Mr. T.S. Chauhan, Advocate.



For the Respondent No.2 : None though represented by Mr.

Rakesh Chandel, Advocate.

O R D E R



Justice Arun Kumar Goel (Retd.), President (Oral).



Appellant has filed this appeal against the order of the District Forum, Una in Consumer Complaint No. 55/2006, dated 31.1.2008. While allowing the complaint of respondent No.1 appellant has been directed to refund Rs. 60,000/- to him alongwith interest @ 9% per annum from the date of filing of the complaint, i.e. 16.6.2006 till realization, besides cost of the complaint assessed at Rs. 2,000/-.

2. What is alleged in the grounds of appeal is, that for one date summon was received in the office of appellant and it had deputed one Mr. Anupam Panday to attend the court, but on said date the court did not assemble and on enquiry having been made, it transpired that court being on leave, matter will be posted for proper orders and information qua the same will be sent as per procedure. Thereafter no notice was received by the appellant. On receipt of notice for appearance in Execution Petition No.16/2008, it came to know that ex-parte order had been passed against it. Appellant having not been served except once, is the main ground for maintaining this appeal while impugning the order of the District Forum below.

3. We have gone through the day-to-day orders passed in Consumer Complaint No. 55/2006 by the District Forum below. On 26.9.2006 notice was ordered to be issued to the appellant as well as to respondent No.2. Order dated 31.10.2006 shows that the appellant was duly served. Acknowledgment due is at page 76 of the complaint file. In the face of this position, submission that notice was only received once and that the court did not assemble on that date is factually incorrect being contrary to record, and appears to be a plea coined by the appellant to take undue advantage from it. Appellant despite due service did not appear, accordingly this plea is hereby rejected. Consequently the ground raised by the appellant, that it has been condemned unheard is likewise contrary to the record and merits rejection. Ordered accordingly.

4. Appellant has tried to take advantage from the reply filed by respondent No.2 Mrs. Ratish Sagar, Regional Co-ordinator in this appeal by referring to it. Suffice it to say in this behalf, that appellant had to stand on its own legs and in any case no advantage can be taken by it from the reply of respondent No.2 filed by her in the proceedings before the District Forum below. Reason being that those are mere pleadings without any evidence in support thereof. Pleading by itself will not in any manner advance the case of the respondent No.2 Even she after filing reply, did not appear and or lead any evidence to support her defence, and was set ex-parte on 2.8.2007.

5. In the light of the above factual position, we are of the view that so far appellant is concerned, it had set out no defence, as it was proceeded ex-parte and it has tried to mislead us by stating facts which are not supported from the record. To the contrary those are factually incorrect. So far respondent No.2 is concerned, there are only pleadings filed by her without supporting those, as such no benefit can be derived from her written statement by the appellant as already observed in the preceding para. Fact remains that receipt of the amount by the respondent No.2 is not disputed by her in her reply. This is the best evidence. Affiliation of all the Distance Education Study Centres was cancelled by the Veer Bahadur Singh Purvanchal University, Jaunpur is again admitted by respondent No.2 in her reply. The evidence of respondent No.1 that present appellant had appointed respondent No.2 as Regional Co-ordinator of the said University, and he was provided code number with the efforts of the appellant as well as the said respondent No.2 have remained unrebutted. Receipt of Rs. 60,000/- is not disputed by her. She has also acknowledged the receipt of legal notice Annexure C-7, but it was never replied to by her. This notice was also addressed to the appellant, but it also chose to remain silent on the issue.

6. Appellant has also placed reliance on the order passed by Hon’ble High Court of Allahabad in CWP No. 45357 of 2005 and other connected matters dated 27.6.2005. So far respondent No.1 is concerned, it has nothing to do with the said petition nor was he a party to it. And in case if the action of the Chancellor has been set aside by the court what is its effect and if ultimately the university succeeds, in such a situation appellant can have such recourse as is available to it against the said University or any other authority. Fact remains that after receipt of the amount from him, the appellant as well as the respondent No.2, did not provide the required service to respondent No.1. As a result of it, the respondent No.1 had to refund the money to the candidates, is again a fact that has not been controverted either by the appellant or respondent No.2. And there is nothing on the complaint file to show that the services to be provided either by the appellant or respondent No.2 were dependent on some one else’s actions. And or that the respondent No.1 was put to notice of this position before accepting money either by the appellant or respondent No.2. Moreover after having chosen not to contest the complaint despite valid service, the appellant now wants us to accept whatever he says in this appeal. Thus we find no substance in this appeal which is accordingly dismissed.

7. No other point was urged.

All interim orders passed from time to time in this appeal shall stand vacated forthwith.

Learned counsel for the parties present have undertaken to collect copy of this order from the Court Secretary free of cost as per rules, office will send it in the like manner to the respondent No.2.



Shimla,

July 15, 2009. ( Justice Arun Kumar Goel ) (Retd.)

President



(Saroj Sharma)

Member.



( Chander Shekher Sharma )

/Karan/ Member.