A Case to Note

Consumer Voice - - Dismissed By Default? -

The above-men­tioned or­der had been passed in the mat­ter of In­dian Machin­ery Com­pany ver­sus An­sal Hous­ing and Con­struc­tion Com­pany which had come be­fore the Supreme Court (civil ap­peal no. 557 of 2016) and was de­cided in Jan­uary 2016.

This case had ear­lier come in re­vi­sion be­fore the Na­tional Com­mis­sion in 2013 from Delhi State Con­sumer Dis­putes Re­dres­sal Com­mis­sion. The com­plainant had won the case against An­sal Con­struc­tions Ltd and an or­der was passed in favour of the com­plainant. The An­sals were di­rected by the dis­trict fo­rum to de­liver the pos­ses­sion of the flat on de­posit­ing of the bal­ance amount with them with­out for­fei­ture of any amount. The An­sals pre­ferred an ap­peal be­fore the State Com­mis­sion, though it was dis­missed. Against this or­der, they filed a re­vi­sion pe­ti­tion be­fore the Na­tional Com­mis­sion for set­ting aside the or­der of State Com­mis­sion.

In­ter­est­ingly, when In­dian Machin­ery Com­pany dis­closed that this was their sec­ond com­plaint be­fore the con­sumer fo­rum be­cause the first com­plaint was dis­missed on de­fault on ac­count of of non­ap­pear­ance,

Points to Note

There is no pro­vi­sion for fil­ing a com­plaint for the same cause on the same is­sue once the com­plaint has been dis­missed in de­fault for non-pros­e­cu­tion. How­ever, at the same time, there is no pro­hi­bi­tion also for the same in Con­sumer Pro­tec­tion Act. The pro­hi­bi­tion clause of Or­der 9, Rule 9 (1) is not ap­pli­ca­ble to con­sumer matters since con­sumer

fo­rums fol­low sum­mary pro­ce­dures and not CPC. The apex court in a num­ber of cases has di­rected that in­ter­pre­ta­tion of clauses should be made look­ing into the pur­pose of the law, and Con­sumer Pro­tec­tion Act be­ing a con­sumer wel­fare act, the con­sumer should not be de­prived of nat­u­ral jus­tice. Rules 15 (6) made by Na­tional Com­mis­sion do not pro­hibit a sec­ond com­plaint if dis­missed in de­fault.

This is a well-set­tled law and has been re­in­forced through var­i­ous judge­ments in var­i­ous courts of law. The sum­mary pro­ce­dure is to be fol­lowed by con­sumer fo­rums, this be­ing prop­erly laid

Ques­tion be­fore the Com­mis­sion

Now, be­fore the is­sue could be de­cided on merit, the over­rid­ing ques­tion be­fore the com­mis­sion was to de­cide whether the sec­ond com­plaint on the same fact could be main­tained un­der the given cir­cum­stances. Ini­tially it was held that there was no pro­vi­sion in the law for a sec­ond com­plaint on the same facts once it was dis­missed in de­fault.

To main­tain that the sec­ond com­plaint was ac­cept­able, the mat­ter of New In­dia As­sur­ance Com­pany ver­sus R Srini­vasan was re­ferred to by the court. The Supreme Court had an­swered two vi­tal ques­tions in a land­mark judge­ment in this case: a) whether con­sumer fo­rums could re­store a case that was dis­missed in de­fault and b) whether a party could in­sti­tute a fresh suit/file a fresh com­plaint if a case was dis­missed in de­fault with­out deal­ing with it on mer­its and not re­stored by the court to its orig­i­nal stage.

Jus­tice S S Ah­mad and Jus­tice D Wad­hwa held: “…in the ab­sence of the com­plainant, the court or ju­di­cial body will be well within the ju­ris­dic­tion to dis­miss the com­plaint for non-pros­e­cu­tion. So, it would also have the in­her­ent power and ju­ris­dic­tion to re­store the com­plaint on good cause be­ing shown for non-ap­pear­ance of the com­plainant.”

Thus, the court or ju­di­cial body can dis­miss the com­plaint in de­fault and also re­store it if non­ap­pear­ance is jus­ti­fied. down un­der Sec­tion 13 of the Act CPC is not ap­pli­ca­ble. In view of this, pro­hi­bi­tion con­tained un­der Or­der 9, Rule 9 (1) has no rel­e­vance at con­sumer fo­rums.

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