DOOARS TRANSPORT Vs. MEDOCHEM LABORATORY PVT LTD

JUDGEMENT

(1.) Brief facts of the case leading to this appeal are that Medochem Laboratory Pvt. Ltd. , complainant for short, booked two consignments on 28.9.1989 and 10.11.1989 with Dooars Transport Company, opposite party No.1, from Delhi to Gaya. Requisite freight charges were paid. The total value of the consigned goods was Rs.25,779.37. The goods failed to reach the destination. The complainant wrote three letters one after the other dated 15.3.1990,19.6.1990 and 12.7.1990 in order to find-out the fate of the goods, but failed to elicit any reply. The complainant, therefore, claimed price of the goods together with the interest and compensation. One Mr. Prem Shankar Khandelwal, Advocate entered appearance on behalf of the both the opposite parties i. e. respondent-Company, opposite party 1 and Mr. A. K. Mittal Proprietor thereof opposite party 2. The Advocate filed his Power of Attorney and took time to file written version of the opposite party. On the adjourned date again Mr. Khandelwal appeared for the opposite parties and sought a copy of the complaint which was supplied to him and he was given further time to file a written version. Thereafter none appeared for the opposite parties and the complainant filed affidavit of Mr. N. B. Bansal, MD of the complainant Company, The complaint was allowed and the opposite parties directed to pay Rs.20,799.37 together with 18% interest from the date of booking till date of payment besides Rs.2,500/- on account of compensation and costs by order dated October 6,1993 by District Forum-I.

(2.) It appears that the order was not complied with and the complainant filed an application under Sec.27 of the Consumer Protection Act. The District Forum issued notice in the said application. Counsel for the opposite parties appeared and it was contended by the opposite parties that the complaint was barred by limitation. The said application of opposite parties was, however, rejected by the District Forum by order dated 29.7.1997 on the ground that the objection regarding limitation might and ought to have been taken in the main complaint. The main order having not been appealed against become final and objection regarding limitation could not be entertained at that belated stage. Certified copy of the order rejecting the said miscellaneous application alongwith a duplicate copy of the final order dated 6.10.1993 passed in the main complaint were furnished to the opposite parties on 30th July, 1997, The present appeal was filed against the order passed in main case on 28.8.1997.

(3.) We have heard Mr. K. K. Nagpal, learned Counsel for the appellant, Ms. Vipin Gupta for the respondent and have carefully gone through the records. The order appealed against is dated 6.10.1993/27.10.1993. The present appeal was filed on 28.8.1997, after nearly four years. The plea is that Mr. P. S. Khandelwal, Advocate engaged by the opposite parties did appear and filed his Vakalatnama before the District Forum but failed to file the written version which had otherwise been prepared and was ready. It is further alleged that Mr. Khandelwal failed to intimate amout further proceedings to the opposite parties, appellant herein, with the result that it became aware of the ex-parte order only during the proceedings under Sec.27 when they approached the District Forum for re-opening the matter on the question of limitation but their application was dismissed. It was at that stage that the appellants obtained duplicate certified copy of the order passed in the main complaint and filed the present appeal. No application for condonation of delay has been filed alongwith the appeal. This is, therefore, a case where admittedly the opposite party was served. They engaged a Counsel and entered appearance. The Counsel appeared on two dates mentioned in the earlier part of this order and on his request the case was adjourned to enable opposite parties to file their written version. No written version was, however, filed. In these circumstances, the District Forum had no choice except to proceed ex-parte and decide the case. It was clearly the duty of the opposite parties to keep a track of the case and to file their written version on the date fixed by the District Forum. Clearly the District Forum was under no legal obligation to send a further notice to the opposite parties upon the failure of their Counsel who had filed his power of attorney on behalf of the opposite parties. Mr. Nagpal contended that the appellants should not be made to suffer owing to the inaction or misconduct on the part of their Counsel and the interest of justice required that the impugned order be set aside and the case remanded for fresh decision according to law. There is no denying the fact that the law leans against ex- parte decisions but in the peculiar facts and circumstances which stand admitted, the opposite parties had been duly served, they appeared through Counsel and took a couple of dates for filing their written version and they failed to enquire from the District Forum about the date of the complaint until proceedings under Sec.27 were initiated against them. The plight of the complainant can be well imagined. This is also not a case where the party may have been diligently following up the case but through alleged mis-conduct on the part of the Lawyer, the ex-parte order may have been passed against them. On the contrary, the opposite parties did not bother about the proceedings taken in the complaint about which they stood squarely informed. The appellant cannot, therefore, shift the blame on their Lawyer. It is also significant that Mr. Khandelwal has not filed any affidavit owning responsibility of not informing his clients.