2014(6) ALL MR (JOURNAL) 76
CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA STATE, MUMBAI
R.C. CHAVAN AND DHANRAJ KHAMATKAR, JJ.
Mr. Krishna Milan Shukla (Baba) Vs. Mr. Tanaji Haribhau Mahabare & Ors.
First Appeal No.804 of 2012,Miscellaneous Application No.254 of 2012
15th July, 2014
Petitioner Counsel: SHEKHAR B. PRABHAVALKAR
Respondent Counsel: M.B. GAWADE, MANOJ CHATAGE
(A) Consumer Protection Act (1986), S.28A - Service of notice - Validity - Any partner may receive a notice on behalf of partnership firm and that would be a valid service. (Para 4)
(B) Consumer Protection Act (1986), S.24A - Delay condonation application - Delay of 530 days in preferring appeal - Ground taken that applicant came to know about impugned order when a non-bailable warrant issued against him - Applicant had knowledge of complaint proceeding - Postal acknowledgement receipt showing that notice was received by applicant - Even notice was published in newspaper - Applicant, however failed to participate in proceeding without any sufficient justifiable reasons - Hence, delay condonation application dismissed. (Para 4)
Mr. R. C. CHAVAN, Hon'ble President :- We have heard Adv. Shekhar B. Prabhavalkar on behalf of the Applicant/Appellant and Adv. M. B. Gawade alongwith Adv. Manoj Chatage on behalf of the Non-Applicant/Respondent No.1. With the help of learned counsel present before us, we have also carefully perused the material placed on record.
2. This is an application for condonation of delay of 530 days in filing an appeal against an order dated 12/01/2011 passed by the Additional District Consumer Disputes Redressal Forum, Thane in Consumer Complaint No.153 of 2009, directing amongst others, the Applicant/Appellant to comply with certain things. Applicant/Appellant herein was the Opponent No.6 in the complaint proceeding before the District Forum. Applicant/Appellant came to be impleaded in the array of Opponents because he was a partner of M/s. Buildtech Engineering Consultant Developers. There is no dispute between the parties as regards the fact that Applicant/Appellant is a partner of M/s. Buildtech Engineering Consultant Developers. Non-Applicant/Respondent No.1 (original Complainant) seems to have executed some agreement with M/s. Valji Patel & Company - Non-Applicant/Respondent No.2 (original Opponent No.1). Though the consumer complaint does not expressly speak about payment made to the partnership firm of which Applicant/Appellant is a partner, there are receipts of payments made to M/s. Buildtech Engineering Consultant Developers, of which the Applicant/Appellant is a partner, which have been placed on record. Applicant/Appellant did not appear before the District Forum. District Forum had allowed an application for substituted service of notice by paper publication. However, it is not a case of the Applicant/Appellant that he never received any notice issued by the District Forum nor it is his case that he was not residing or carrying on his business on the address mentioned in the complaint. He states that M/s. Buildtech Engineering Consultant Developers did not carry on its business on the address mentioned in the complaint. The District Forum proceeded to hear the complaint after the notice was published in the newspaper and came to hold against the Applicant/Appellant as well. Aggrieved thereby, Applicant/Appellant seeks to file an appeal after condonation of delay. Applicant/Appellant states that he came to know about impugned order only when a non-bailable warrant of arrest was issued against him by the District Forum in an execution proceeding.
3. Non-Applicant/Respondent No.1 has strongly opposed the application for condonation of delay. He states that Applicant/Appellant had a knowledge of the complaint proceeding and the grounds made out in the application for condonation of delay are not correct. It is also pointed out on behalf of the Non-Applicant/Respondent No.1 that there are several criminal complaints pending against the Applicant/Appellant.
4. We have perused the record of the District Forum which shows that there is a postal acknowledgement receipt showing that notice issued by District Forum was duly received by M/s. Buildtech Engineering Consultant Developers on 14/09/2009. Postal acknowledgement receipt shows that notice was addressed to present Applicant/Appellant. It appears that inspite of such postal acknowledgement receipt being on record, by way of abundant precaution, Applicant/Appellant was served with a public notice through paper publication. However, that does not wash out postal acknowledgement receipt which shows that notice had been received by Mr. Krishna Milan Shukla - the Applicant/Appellant herein. Any partner may receive a notice on behalf of the partnership firm and that would be a valid service. Applicant/Appellant may have very strong grounds to challenge the order passed by the District Forum. However, that does not justify delay of 530 days in preferring the appeal. Since, in our view, Applicant/Appellant had knowledge of complaint proceeding filed before the District Forum and he failed to participate in the proceeding without any sufficient justifiable reasons, the application for condonation of delay stands dismissed. Consequently, the appeal does not survive for consideration. Parties shall bear their own costs.
5. At this juncture, learned counsel for the Applicant/Appellant prayed that operation of this order may be stayed for a period of six weeks since the Applicant/Appellant would like to challenge this order by preferring a revision before the Hon'ble National Commission. His request is granted. Consequently, operation of this order is stayed for a period of six weeks. Appeal stands disposed of accordingly.