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Shubhash Kumar Sharma v/s Harish Chander Rawal

Company & Directors' Information:- S C SHARMA AND CO PRIVATE LTD [Active] CIN = U74899DL1948PTC001507

Company & Directors' Information:- SHARMA INDIA PRIVATE LIMITED [Active] CIN = U74999UP2008PTC035620

Company & Directors' Information:- K P SHARMA (INDIA) PVT LTD [Strike Off] CIN = U51109WB1988PTC045569

Company & Directors' Information:- SHARMA CORPORATION PRIVATE LIMITED [Active] CIN = U51909WB2017PTC220657

Company & Directors' Information:- P C SHARMA AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U45201DL1981PTC012750

Company & Directors' Information:- J. R. SHARMA & COMPANY PRIVATE LIMITED [Strike Off] CIN = U24211DL1966PTC004602

Company & Directors' Information:- HARISH INDIA PRIVATE LIMITED [Active] CIN = U29299MH1959PTC011457

Company & Directors' Information:- HARISH AND COMPANY PRIVATE LIMITED [Converted to LLP and Dissolved] CIN = U45201RJ1995PTC010374

Company & Directors' Information:- M K SHARMA AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74994DL1982PTC014090

Company & Directors' Information:- HARISH KUMAR AND CO PRIVATE LIMITED [Active] CIN = U17120MH1960PTC011894

Company & Directors' Information:- SHARMA AND SHARMA PRIVATE LIMITED [Active] CIN = U74900DL2015PTC276949

Company & Directors' Information:- SHARMA & CO. PVT LTD. [Strike Off] CIN = U28991WB1949PTC018064

    Revision Petition No. 3315 of 2018

    Decided On, 04 February 2020

    At, National Consumer Disputes Redressal Commission NCDRC


    For the Petitioner: Pawan Kumar Ray, Advocate. For the Respondent: ----------

Judgment Text

1. This Revision Petition has been filed under Section 21(b) of The Consumer Protection Act, 1986, hereinafter referred to as the ‘Act’, challenging the Order dated 05.10.2018 passed by The State Consumer Disputes Redressal Commission, Uttarakhand, hereinafter referred to as the ‘State Commission’, in F.A. No. A/14/202 arising out of the Order dated 02.09.2014 in C.C. No. 354/2013 passed by The District Consumer Disputes Redressal Forum, Haridwar, hereinafter referred to as the ‘District Forum’.

2. The Complainant before the District Forum, Mr. Harish Chander Rawal, is the Respondent herein, and is hereinafter being referred to as the ‘Complainant’.

The Opposite Party before the District Forum, Mr. Subhash Kumar Sharma, Contractor, R. K. Construction, is the Petitioner herein, and is hereinafter being referred to as the ‘Contractor’.

3. Heard the learned Counsel for the Contractor on admission, and perused the material on record including inter alia the Order dated 02.09.2014 of the District Forum, the impugned Order dated 05.10.2018 of the State Commission and the Memorandum of Petition.

4. The short point in this case is that, as alleged by the Complainant, the Contractor received an amount of Rs.3,83,500/- for construction of a second floor on his residential house, but left the construction incomplete and did not settle the accounts.

The Complainant filed a Complaint before the District Forum on 27.08.2013 alleging ‘deficiency in service’.

5. The District Forum heard both sides, appraised the evidence, and, vide its Order dated 02.09.2014, allowed the Complaint.

Compensation quantified at Rs. 6,00,000/- was awarded to the Complainant, to be paid by the Contractor within one month of the Order.

6. The Contractor filed an Appeal on 24.09.2014 under Section 15 of the Act before the State Commission.

7. The State Commission dismissed the Appeal vide its impugned Order dated 05.10.2018.

The said Order is reproduced below for ready perusal.

Final Order / Judgement

Called out repeatedly at intervals.

There is none to represent the appellant. Respondent is present in person.

Heard. Perused complete record of the case.

It transpires from the record that the appellant did not turn up on several dates. On 03.11.2016, clear order was passed that in case the appellant does not turn up on the next date and does not make good the payment of costs by the next date, appropriate order would be passed against him.

For the last so many dates, appellant did not turn up.

Perusal of the order dated 04.08.2016 passed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No. 1830 of 2016; Sh. Subhash Kumar Sharma Vs. Sh. Harish Chander Rawal, reveals that the revision petition filed by Sh. Subhash Kumar Sharma, Proprietor, R. K. Constructions, was allowed, thereby setting aside the order passed by this Commission and restoring the appeal, subject to the payment of costs of Rs.10,000/-. The order makes mention of the fact that learned counsel for the parties have assured the Hon’ble National Commission that they will not seek unnecessary adjournments in the appeal. The amount of costs, as imposed by the Hon’ble National Commission, has not been paid by the appellant to the respondent as yet.

Keeping in view the aforesaid circumstances, we are of the definite view that the appeal deserves dismissal on the aforesaid scores. Accordingly, appeal is dismissed with no order as to costs.

(as per the translated copy furnished with the Petition)

8. A copy of the Order dated 04.08.2016 of this Commission in R.P. No. 1830 of 2016, which has been referred to by the State Commission in its impugned Order, was not filed by the Contractor with his Petition.

The relevant order-sheets of the State Commission were also not filed by the Contractor, even after an explicit Order dated 06.05.2019 of this Commission.

9. It can however be gathered from what has been stated in the Memorandum of Petition and from what has been recorded by the State Commission in its Order of 05.10.2018 that the Appeal before the State Commission was earlier dismissed in default on 29.03.2016, the said Order of the State Commission was set aside by this Commission vide its Order dated 04.08.2016 in R.P. No. 1830 of 2016 subject to cost of Rs.10,000/-, and the case was remanded back to the State Commission.

10. On 05.10.2018, when the State Commission passed its impugned Order, the Contractor was not present or represented before the State Commission, the Complainant was present in person. The State Commission noted that on several earlier dates also, the Contractor was not present or represented before the State Commission. It also noted that the cost of Rs.10,000/- had not been paid by the Contractor to the Complainant. It further noted that on an earlier date, 03.11.2016, a clear order was passed that if the Contractor did not turn up on the next date and did not make the payment of cost by the next date, appropriate order would be passed.

11. Evidently, the State Commission has dismissed the Appeal on considering that:

[a] the cost of Rs. 10,000/-, as the condition attached for setting aside its earlier Order of 29.03.2016 to dismiss the Appeal in default, had not been paid to the Complainant, despite sufficient opportunity; and

[b] the Contractor was repeatedly absenting himself from the proceedings before the State Commission, including on 05.10.2018 when the State Commission dismissed his Appeal.

12. The right to appeal also has the concomitant responsibility of its professional conduct.

In the instant case, the Appeal was first dismissed in default, then restored subject to cost, the said cost was not paid, the Contractor repeatedly absented himself from proceedings before the State Commission including on 05.10.2018 when the State Commission passed its impugned Order.

13. The Statement of Objects and Reasons of the Act says of “speedy and simple redressal to consumer disputes”. The case was filed before the District Forum in 2013, the District Forum passed its Order in 2014, the Appeal was filed before the State Commission in 2014, we are now in 2020.

14. After an Order was passed by the District Forum, unprofessional conduct of the Appeal before the State Commission, repeated non-appearance, non-payment of the cost imposed, causing impediments and delay, putting the Complainant to continuing trouble and prejudice, is not viewed favourably.

15. An Order was passed on merit by the District Forum on contest. The Appeal was unprofessionally conducted. Sufficient opportunity, and more, has been provided to the Contractor before the State Commission. To yet again remand the case back to the State Commission would, in the present facts and situation, put the Complainant to yet further trouble and prejudice, be a travesty of justice. The State Commission’s impugned Order calls for no interference.

16. With the above discussio

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n, the Revision Petition, being patently ill-conceived and totally bereft of merit, is dismissed, with stern advice of caution to the Contractor through imposition of cost of Rs. 10,000/- to be deposited in the Consumer Legal Aid Account of the District Forum within four weeks of the pronouncement of this Order. The State Commission’s impugned Order dated 05.10.2018 is affirmed, the District Forum’s Order dated 02.09.2014 sustains. 17. In case of failure or omission in timely compliance, the District Forum shall undertake execution, for ‘Enforcement’ under Section 25(3) and for ‘Penalties’ under Section 27 of the Act, as per the law. 18. Let a copy each of this Order be sent to the District Forum and to the Complainant by the Registry within seven days of its pronouncement.<