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MAHARASHTRA STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, BOMBAY
Hon’ble Mr. Justice G.G. Loney,
President & Mr. M.G. Gavai, Member
RAJENDRA MANMOHAN BARTAKKE—Applicant
versus
DR. H.G. ABHYANKAR—Non-applicant
Misc. Application No. 49 of 1993—Decided on 18.4.1994
CONSUMER PROTECTION ACT, 1986 - SECTION 27 - EX-PARTE ORDER - SETTING ASIDE - JURISDICTION - CIVIL SUIT PENDING - MISLEADING THE COMMISSION - MISREPRESENTATION AND SUPPRESSION OF MATERIAL FACTS - INJUSTICE AND IRREPARABLE LOSS - POWER OF THE COMMISSION TO SET ASIDE EX-PARTE ORDER IN THE INTEREST OF JUSTICE - SUMMARY OF THE ACTS AND SECTIONS REFERENCED AND DISCUSSED BY THE COURT.
Fact of the Case:
The applicant filed an application to quash and set aside an ex-parte order passed by the State Commission in a consumer complaint filed by Dr. H.G. Abhyankar. The applicant contended that he had sent a written statement in response to the allegations made in the complaint, but the Commission proceeded ex-parte against him despite receiving the written statement. The applicant also contended that Dr. Abhyankar had filed a civil suit for the same subject matter in the Civil Court and had misled the Commission by not disclosing this fact.
Finding of the Court:
The Commission found that Dr. Abhyankar had indeed filed a civil suit for the same subject matter in the Civil Court and had not disclosed this fact to the Commission. The Commission also found that the applicant had sent a written statement in response to the allegations made in the complaint, but the Commission had not considered the written statement before passing the ex-parte order. The Commission held that Dr. Abhyankar had misled the Commission and that the ex-parte order had been passed without considering the applicant's written statement, resulting in a miscarriage of justice.
Issues: 1. Whether the Commission had the jurisdiction to set aside the ex-parte order in the interest of justice, even though there was no provision for setting aside ex-parte orders under the Consumer Protection Act, 1986? 2. Whether Dr. Abhyankar had misled the Commission by not disclosing the pendency of the civil suit and by not bringing to the Commission's notice the fact that the applicant had filed a written statement?
Ratio Decidendi: 1. The Commission held that it had the jurisdiction to set aside the ex-parte order in the interest of justice, even though there was no provision for setting aside ex-parte orders under the Consumer Protection Act, 1986. The Commission relied on the principle that a court has inherent powers to prevent abuse of its process and to ensure that justice is done. 2. The Commission found that Dr. Abhyankar had misled the Commission by not disclosing the pendency of the civil suit and by not bringing to the Commission's notice the fact that the applicant had filed a written statement. The Commission held that this had resulted in a miscarriage of justice.
Final Decision: The Commission set aside the ex-parte order passed by it on 5.11.1992 in Complaint No. 252/91.
Mr. Justice G.G. Loney, President—This is an application filed by original opposite party to quash and set aside the order of this Commission dated 5.11.92 passed in Complaint No. 252/91. The applicant contended that written statement/reply in answer to the allegations of complainant Dr. H.G. Abhyankar presently, non-applicant, was sent to this Commission on 10.3.1992 by registered post with acknowledgment due and it was received in the Office of the State Commission on 6.3.1992. The applicant further contended that despite the said reply of applicant, this Commission proceeded ex-parte against him. The complainant further contended that there was no deficiency in his service as he has completed the construction as per the second agreement dated 22.6.91. It is further submitted that complainant Dr. H.G. Abhyankar had filed a Civil Suit No. 1413/91 in the Court of Civil Judge, Snr. Division, Pune on 15.11.91 against the applicant interalia praying for specific performance of the aforesaid agreement. It is further contended that Dr. Abhyankar prayed for a decree for specific performance of agreement or in the alternative claimed the reliefs of Rs. 2,00,000/- towards the cost of incomplete construction. It is also alleged that the Civil Court was moved by Dr. Abhyankar for grant of injunction against this applicant. It is also stated that in the suit, Dr. Abhyankar also applied for appointment of a Court Receiver. The applicant, therefore, submitted in this proceeding that being fully aware of the pendency of the civil suit and the prayers made therein, the complaint No. 252/91 was filed by the complainant on 11.11.91 before this Commission and thus misled the State Commission. It is, therefore, prayed that the order passed by this Commission mentioned above dated 5.11.1992 be set aside.
2. On receipt of the aforesaid application, we issued notice to Dr. H.G. Abhyankar and heard Shri Surana learned Advocate for the present applicant, Shri Rajendra Bartakke and Shri Pradhan, Advocate and Shri Abhyankar in person.
3. In the mean time, the complainant Dr. Abhyankar had approached this Commission u/Sec. 27 of the Consumer Protection Act, 1986 for action against the opposite party in Misc. Application No. 18/92. Shri Abhyankar had also started execution proceedings before the Civil Court at Pune against the present applicant and the Civil Court had proceeded for the attachment of the applicant’s property and, therefore, considering the emergency, we also heard Misc. Application No. 18/93 together with Misc. Application No. 49/93.
4. According to Shri Surana, Advocate for the present applicant, Dr. H.G. Abhyankar suppressed the material facts from this Commission as a result of which the ex-parte order came to be passed against his client. Shri Surana has placed on record the copy of Special Civil Suit No. 1413/91 at Ex. ‘A’ filed by Dr. Abhyankar in which the present applicant Shri Rajendera Bhartakke is one of the defendant. It is important to note that the subject matter of the property in the aforesaid Civil Suit and the property described in Complaint No. 252/91 is the same. The reading of the said claim clearly shows that Dr. Abhyankar interalia has prayed for a decree of specific performance of contract dated 12.7.1989 and 22.6.1991 in respect of the same property. In the alternative the complainant has also prayed for the possession of the apart ment in question. Alongwith the aforesaid plaint, Shri Surana has annexed at Ex. ‘B’, a copy of the application for ad-interim injunction u/p 39, Rules 1 and 2 of the CPC. At Ex. ‘C, there is a copy of an application for appointment of Receiver under Order 40, Rule 1 of C.P. Code. At Ex. ‘E’, there is the copy of the written statement filed by applicant in Complaint No. 252/91. At Ex. T’, there is postal acknowledgment from this Commission having received the said written version sent b Advocate of this applicant. Similarly, at Ex. ‘G’, there is postal acknowledgement duly signed by D
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