BHUPENDRA SURANI Vs. STARLIGHT SYSTEMS PVT LTD

JUDGEMENT

(1.) This is an application for restoration of the complaint which was dismissed on 24.9.2010. The grounds on which the application has been filed are that consequent to declaration of bankruptcy of the complainant by Hong Kong Court, the trustees appointed by the Hong Kong Court had instructed the complainant/ applicant not to appear before the Commission and also not to instruct any attorney or legal representative to appear on his behalf. Accordingly the complainant did not appear on 6.8.2010, though his attorney Shri Sanjay Khemka had appeared. It is further stated in the application that the applicant wanted to withdraw the complaint with bona fide intention to avoid litigation as the Respondents had initiated arbitration proceedings. It is further submitted that the complainant could not appear on 6.9.2010 for making statement to continue with the present complaint on account of illness due to which he was unable to travel and appear in this Commission. It is further stated that Shri Sanjay Khemka, Special Power of Attorney of the complainant had wrongly noted the date as 28.9.2010 and intimated the same to the complainant on account of which, he had arrived in Delhi on 28.9.2010 and did not appear on 24.9.2010. This according to the complainant, occurred on account of some mistake or inadvertence. It is further pointed out that cost of Rs. 15,000 had been deposited on27.9.2010. In the circumstances, it is submitted that the order of dismissal of the complaint for want of appearance on 24.9.2010, be set aside and the complaint be restored.

(2.) Counsel for the complainant/ applicant has relied upon the facts disclosed in the application. Counsel appearing on behalf of the opposite party has stated that he has nothing to argue in the matter and appropriate orders deemed fit to be passed.

(3.) It appears that the complainant had been declared bankrupt by Court of Hong Kong vide order dated 13.1.2010 and trustees have been appointed in respect of the properties of the complainant. Letters dated 4.8.2010 and 27.8.2010 support the case of the complainant that the trustees had asked the complainant not to withdraw the complaint. However, these facts were not placed by Shri Sanjay Khemka, Special Power of Attorney of the complainant before this Commission on 6.9.2010 and the matter was adjourned to 24.9.2010. On24.9.2010, neither Shri Sanjay Khemka nor the complainant appeared in spite of repeated assurance of Shri Sanjay Khemka on 6.8.2010 and 6.9.2010 that the complainant shall appear in the Commission and withdraw the complaint. Besides this, the complainant had also not deposited the cost of Rs. 15,000. The complaint was accordingly dismissed. According to the complainant, there was some mistake or inadvertence on the part of Shri Khemka in noting down the date as 28.9.2010 instead of 24.9.2010. Strictly speaking this cannot be considered to be inadvertence but it is a case of lack of diligence and negligence on the part of Shri Sanjay Khemka in recording the date. Be that as it may, in the facts and circumstances, we are inclined to set aside the order dated 24.9.2010, for which the complainant has to bear cost of Rs. 25,000. The complainant has already deposited Rs. 25,000 in the Commission, out of which Rs. 10,000 shall be given to the opposite party as cost and Rs. 15,000 shall be transferred to the Consumer Legal Aid Account of this Commission. Besides this, if the complainant has not paid Rs. 5,000 to the opposite party as ordered on 6.9.2010, the same be paid before the next date of hearing and compliance be reported.