Chandigarh

StateCommission

A/60/2023

ATS ESTATES PVT. LTD. THROUGH ITS AUTHORIZED SIGNATORY - Complainant(s)

Versus

SANJAY KAKAR - Opp.Party(s)

SUKHANDEEP SINGH

24 Jul 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	60 of 2023
Date of Institution	:	11.04.2023
Date of Decision	:	24.07.2023

 

 

 

 

 

1. ATS Estates Pvt. Ltd. 711/92, Deepali, Nehru Place, New Delhi-110019 through its Authorized Signatory.
2. ATS Tower, Plot No.16, Sector 135, NOIDA, UP through its authorized Signatory.
3. General Manager, ATS Golf Meadows Lifestyle, Village Madhopur, Tehsil Dera Bassi, District SAS Nagar (Mohali)
4. Getamber Anand, Managing Director, ATS Tower, Plot No.16, Sector 135, NOIDA, UP
5. Poonam Anand, Director, ATS Tower, Plot No.16, Sector 135, NOIDA, UP

 

…Appellants/opposite parties no.1 to 5

 

V e r s u s

 

1. Sanjay Kakar son of Sh. Satish Chandra Kakar, r/o House No.1036, Sector 27-B, Chandigarh.

….Respondent no.1/complainant

2. HDFC Limited, SCO No.153-155, Madhya Marg, Sector 8-C, Chandigarh through its Branch Manager.

….Proforma-respondent no.2/opposite party no.6

 BEFORE:   JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                   MR. PREETINDER SINGH, MEMBER.

 

Present:-     Sh.Updip Singh, Advocate for the appellants (on VC).

                   Sh. J.S. Rattu,  Advocate for respondent no.1/ complainant (on VC).

                   Ms. Neetu Singh, Advocate for proforma respondent no.2-HDFC                Ltd.

 

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

 

M.A. No.369 of 2023 (condonation of delay):-

This application has been filed by the appellants alongwith, for condonation of delay of 152 days in filing this appeal. In the application, it has been stated by the appellants that after the impugned order dated 23.09.2022 was passed by the District Commission proceeding the appellants ex-parte in the consumer complaint, they preferred M.A. No.172 of 2022 i.e. for review of the said order dated 23.09.2022, on the ground that though the present counsel had received instructions from the appellants to appear before the District Commission on the said date, yet, he could not appear, as he was busy before the Hon'ble National Commission, New Delhi in some other matter. Thus, in the interest of justice, the appellants prayed for review of the impugned order dated 23.09.2022. The District Commission after hearing arguments on 14.10.2022 passed the impugned order dated 18.10.2022 dismissing the said M.A. No.172 of 2022 of the applicants/appellants. The said impugned order dated 18.10.2022 passed in M.A. No.172 of 2022 was neither uploaded on confonet nor certified copy of the same was ever supplied to the applicants/appellants. Thereafter, on 20.01.2023, when counsel for the applicants enquired about the status of M.A. No.172 of 2022 from the peshi office of the District Commission, it came to the notice of the applicants/appellants that vide impugned order dated 18.10.2022 the review application of the applicants/appellants have been dismissed. Thus, counsel for the applicants immediately applied for certified copy of the order dated 18.10.2022 and the same was supplied on 24.01.2023. Subsequently, the appellants consulted their management and counsel, for the purpose of filing the present appeal on 28.01.2023 and it was decided that an appeal should be preferred against the aforesaid impugned orders. Thereafter, the appeal was drafted by the present counsel and was submitted in the registry on 17.01.2023, however, the registry raised the objection that before physically submitting the appeal, the same has to be e-filed through e-dakhil website. Accordingly, counsel for the appellant took some time to make requisite changes in the appeal and filed it through e-dakhil on 23.02.2023.Since there were certain objections regarding the e-filing, the registry of this Commission informed the present counsel regarding objections in the appeal. The present counsel again took some time to rectify the defects as pointed out by the registry and thereafter, when he made an attempt to refile the appeal on e-dakhil portal, there was some problem in uploading the corrected pleadings and documents. Thus, it was recommended by the registry of this Commission that fresh filing be done in a proper manner. Accordingly, the present counsel immediately uploaded the final draft on e-dakhil on 17.04.2023. As such, it was under those circumstances, which caused delay in filing this appeal, which is neither intentional nor mala-fide.

2.           On the other hand, in the reply filed by respondent no.1/complainant to this application, it has been stated that:-
   1.  the Consumer Commission enables not only the counsel but the consumer itself to represent its case but in the present case, neither the party nor its representative nor its counsel appeared in the main consumer complaint before the District Commission;
   2.  Since there was no error apparent on record, as such, the District Commission was right in dismissing the application filed by the appellants for review of the exparte order.
   3. It was the bounden duty of the appellants to approach the District Commission for bringing to its notice regarding non-uploading of the orders;
   4. Since the delay of 152 days is unexplained and the facts narrated in the application are also distorted, as such, this application deserves to be dismissed.

 

3.           Arguments on this application were heard.
4.           It may be stated here that from the contents of the application, this Commission is satisfied that sufficient cause has been explained by the appellants to condone the delay, sought for, by them, for filing this appeal.
5.           For the reasons stated in this application, delay of 152 days in filing this appeal is condoned and the said application stands disposed of accordingly.

Appeal No.60 of 2023:-

                   This appeal has been filed by the appellants/opposite parties no.1 to 5-ATS Estates Private Limited, as they are aggrieved of the order dated 23.09.2022 passed by the District Consumer Disputes Redressal Commission-I, U.T., Chandigarh (in short the District Commission), in consumer complaint bearing no.242 of 2022 whereby they were proceeded against exparte and also against order dated 18.10.2022, whereby miscellaneous application bearing no.172 of 2022 having been filed by them for reviewing the aforesaid exparte order dated 23.09.2022 also stood dismissed by the District Commission

6.           Before this Commission, it has been vehemently contended by counsel for the appellants that he had received instructions to appear in the main consumer complaint bearing no.242 of 2022 already fixed for 23.09.2022, however, he could not appear before the District Commission as he was held up before the Hon'ble National Commission, New Delhi and could not pass on instructions to his colleagues within court timings. He further contended that he tried to contact his fellow colleagues appearing before the District Commission on 23.09.2022 but he could not succeed and as such could not make appropriate representation on behalf of appellants before the District Commission in that regard. He further contended that it was thus on account of the reasons beyond his control that he could not appear before the District Commission as a result of which, the appellants were proceeded against exparte. He  further submitted that in the light of the aforesaid facts and circumstances, the appellants preferred miscellaneous application bearing no.172 of 2022  before the District Commission for review of the order dated 23.09.2022 and seeking permission to join the proceedings and submit written version on behalf of appellants but the same was dismissed vide order dated 18.10.2022.  He further submitted that in the interest of justice, the appellants be given an opportunity to file their written version along with evidence and as such, prayed for setting aside of the orders dated  23.09.2022 and 18.10.2022 passed by the District Commission.  
7.           On the other hand, counsel for respondent no.1/ complainant submitted that since the appellants were in the knowledge of the consumer complaint having been filed against them, as such, if their counsel was busy somewhere, it was the duty of the appellants to engage somebody else to put in appearance before the District but they miserably failed to do so. He further submitted that the exparte order and also the order passed in review application, referred to above, did not suffer from any illegality and the same need to be upheld.
8.           Record of the  District was requisitioned and received by this Commission.  Accordingly, we have heard the contesting parties and scanned the material available on the record, very carefully.
9.            It may be stated here that, in this appeal, the Advocates-Sh. Updip Singh and also Sh.Sukhandeep Singh, appearing on behalf of the appellants, have fairly  stated that it was on account of their non-appearance in the main consumer complaint before the District Commission, as they were engaged in some other cases before the Hon’ble National Commission, and at the same time, their fellow colleagues appearing before the District Commission on 23.09.2022 could not be contacted, as a result of which, the appellants were proceeded against exparte vide order dated 23.09.2022 by the District Commission. As such, under these circumstances, it can easily be said that though the appellants had done everything in their power expected of them by hiring the Advocate(s) to appear in the main consumer complaint before the District Commission, fixed for 23.09.2022, yet, it was on account of inaction on the part of their Advocate, for whatever reason may be, that they were proceeded against exparte. To our mind, in this situation, for the said inaction on the part of the said Advocates, the appellants cannot be made to suffer. Our this view is supported by the case laws titled as Rafiq and Anr. v. Munshilal and Anr.: AIR 1981 SC 140 and Smt. Lachi and Ors. v. Director of Land Records and Ors. : AIR 1984 SC 41 in which while dealing with a similar issue the Hon’ble Supreme Court held that “What is the fault of the party who has done everything in his power expected of him, would suffer because of the default of his advocate…. The problem that agitates us is whether it is proper that a party should suffer for the inaction, deliberate omission, or misdemeanor of his agent…. We cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted.”. Under these circumstances, we are of the considered opinion that, if we set aside the order dated 23.09.2022, whereby the appellants were proceeded against exparte and also order dated 18.10.2022 whereby the review application for setting aside the order dated 23.09.2022 was also dismissed by the District Commission, subject to payment of cost to respondent no.1/complainant, as the proceedings of the main consumer complaint will definitely be delayed now, that will meet the ends of justice.
10.           For the reasons recorded above, this appeal is accepted subject to payment of cost of Rs.5,000/- which shall be paid by the appellants to respondent no.1/complainant at the time of appearance before the District Commission. Consequently, the impugned order dated 23.09.2022 (exparte) passed by the District Commission, in consumer complaint bearing no.242 of 2022 and also order dated 18.10.2022, dismissing miscellaneous application bearing no.172 of 2022 aforesaid, are set aside.
11.            The parties are directed to appear before the District Commission on 08.08.2023, whereafter, the District Commission shall conduct further proceedings, in the main consumer complaint, as per law.
12.           Complete record alongwith certified copy of this order be sent to the District Commission concerned, so as to reach there, well before the date fixed.
13.            Certified Copies of this order be sent to the parties, free of charge.
14.           The concerned file be consigned to Record Room, after completion.

Pronounced

24.07.2023

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(PREETINDER SINGH)

 MEMBER

 Rg.