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MADRAS HIGH COURT
AR. Lakshmanan Dr., J.
INDIAN BANK & FOUR ORS.—Petitioners
versus
DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, MADRAS & ANR.—Respondents
C.R.P. No. 1140 of 1991 — Decided on 28.6.1996
Counsel for the Parties :
For the Petitioners:Mrs. Rita Chandrasekaran, Advocate.
For the Respondents:Mr. D.I.J. Rajkumar, Advocate.
The Consumer Protection Forum has the implied power to set aside an ex parte order under Section 13(2) and 13(4) of the Consumer Protection Act and Rules 8(8) and 8(9) of the Tamil Nadu Consumer Protection Rules.
Headnote:
CONSUMER PROTECTION ACT - SETTING ASIDE EX PARTE ORDER - FORUM HAS IMPLIED POWER TO SET ASIDE EX PARTE ORDER - SECTION 13(2) AND 13(4) OF THE ACT - RULES 8(8) AND 8(9) OF THE TAMIL NADU CONSUMER PROTECTION RULES - FORUM HAS INCIDENTAL AND ANCILLARY POWER TO SET ASIDE EX PARTE ORDER - COURT CAN EXERCISE POWERS UNDER ARTICLE 227 OF THE CONSTITUTION TO CORRECT ERROR IN EXERCISE OF JURISDICTION.
Fact of the Case:
The Indian Bank filed a civil revision petition against the order of the District Consumer Disputes Redressal Forum, Madras, refusing to entertain their petition to set aside an ex parte order. The bank argued that the Forum had the implied power to set aside the ex parte order under Section 13(2) and 13(4) of the Consumer Protection Act and Rules 8(8) and 8(9) of the Tamil Nadu Consumer Protection Rules.
Finding of the Court:
The court held that the Forum had the implied power to set aside the ex parte order as it had the power to decide a complaint ex parte under Rules 8(8) and 8(9) of the Rules. The court also held that it could exercise powers under Article 227 of the Constitution to correct error in exercise of jurisdiction.
Issues: Whether the Forum had the power to set aside the ex parte order.
Ratio Decidendi: The court relied on Section 13(2) and 13(4) of the Consumer Protection Act and Rules 8(8) and 8(9) of the Tamil Nadu Consumer Protection Rules to hold that the Forum had the implied power to set aside the ex parte order. The court also held that it could exercise powers under Article 227 of the Constitution to correct error in exercise of jurisdiction.
Final Decision: The court allowed the civil revision petition and directed the Forum to take the petition on file and decide it on merits after affording opportunity to both parties.
AR. Lakshmanan Dr., J.—The above civil revision petition has been filed by the Manager, Indian Bank, High Court Extension Counter, Madras, on his behalf and on behalf of the Indian Bank, under Article 227 of the Constitution of India against the order dated 8.4.91 in O.P. No. 86 of 1991 passed by the District Consumer Disputes Redressal Forum, Madras (hereinafter referred to as the Forum), refusing to entertain the petition filed by the Indian Bank for setting aside the order passed on 1.4.91 setting the petitioners ex parte.
2. The 2nd respondent filed a complaint before the Forum alleging wrongful dishonouring of a cheque issued by him on his personal S.B. Account No. 5891/25 with the Indian Bank, High Court Extension Counter, Madras. The said cheque was drawn in favour of M/s. Kilburn Reprographics Limited for Rs. 10,762.11 on3.9.90. Aggrieved by the dishonouring of the cheque dated 3.9.90, the 2nd respondent filed O.P. No. 86 of 1991before the Forum to award a sum of Rs. 30,000 /- with interest @ 18% per annum from the date of plaint till the date of realisation or such other sum as compensation for the injury suffered by him due to the negligence of the Indian Bank authorities, and also for costs and other reliefs.
3. On receipt of the complaint, the Forum issued a notice to the Indian Bank fixing the date for enquiry as 29.3.91 at 10.30 a.m. The petitioners were directed to appear before the Forum either by themselves or through their authorised agents along with evidence, documents, etc., failing which the Forum will proceed to settle the dispute in question on the basis of the evidence produced by the complainant/2nd respondent and on merits.
4. According to the petitioners, the Indian Bank Manager along with their Advocate went to the Forum premises on 29.3.91 and the Forum was found to be locked as that day was declared to be a holiday on account of Good Friday. The next working day was 1.4.91. The petitioners Counsel by way of abundant caution went to the Forum office at 12.00 noon on 1.4.91 to verify the exact date of hearing. He came to know that the petitioners were set ex parte and the complaint was posted for hearing 4.4.91 for filing an affidavit of service. Immediately thereafter, the matter was mentioned in the open Court and a request was made to set aside the order setting the petitioners ex parte. Thereafter, again time was granted to the 2nd respondent to file affidavit of service and the matter was adjourned to 4.4.91. Again, on 4.4.91, the petitioners’ Counsel requested the Forum to set aside the order passed on 1.4.91. However, the matter was adjourned to 8.4.91 as both parties were not present for the hearing. On 8.4.91, the petitioners’ Counsel again pleaded for setting aside the order dated 1.4.91 and filed a petition for setting aside the order dated 1.4.91 setting the petitioners ex parte.
5. It is also stated that 1.4.91 was closing of the financial year since 31.3.91 happened to be a holiday and the Nationalised Banks did not transact business and all the petitioners were very busy with the closing of accounts for the financial year. Therefore, it is contended, that the absence of the petitioners and their Counsel on 1.4.91 before the Forum was neither wilful nor wanton. The petition filed by the petitioners for setting aside the order dated 1.4.91 was taken up for hearing on 8.4.91 and the same was returned with the following observations :
“1. There is no provision under the Consumer Protection Act, 1986, to maintain this petition for setting aside the ex parte order in question and also Code of Civil Procedure is not applicable to it.
2. The averments in the petition cannot be looked into for want of power to this Forum.”
Aggrieved by the aforesaid order of returning the petition to set aside the ex parte order, the petitioners have approached this Court under Article 227 of the Constitution.
6. It is contended by the learned Counsel for the petitioners that the Forum has erred in rejecting
