2014(2) ALL MR (JOURNAL) 31


Country Vacation International Holiday Club Vs. Mr. Delano Azavedo & Anr.

First Appeal No. 692 of 2011

13th December, 2012

Petitioner Counsel: Mr. ANAND DUBEY
Respondent Counsel: Mr. RONAK SHAH

(A) Consumer Protection Act (1986), S.15 - Appeal - Against ex-parte order passed by District Forum - Service of notice by Forum rightly effected - Address of appellant on said notice was correct - Postal acknowledgement also received back - Contention that signature on postal acknowledgement was not of any of appellant's employees, not acceptable - Appellant willfully remained absent before District Forum - Ex-parte proceeding proper. (Para 4)

(B) Consumer protection Act (1986), S.15 - Appeal - Delay of 48 days in filing - Appellant stating to have come to know about decision of District Forum by a news item - However, he applied for certified copy after 26 days after receiving the knowledge - Thus, appellant was not diligent in prosecuting the remedy - Delay however condoned on ground of mercy to offer an opportunity. (Para 4)

(C) Consumer Protection Act (1986), S.2 - Consumer complaint - Opponent club is service provider having a chain of hotels and resorts throughout the country - Parties entered into agreement for enjoyment of facilities - Opponent allegedly did not provide facilities, nor did it refund amount paid by complainant - Nothing brought on record to show that service was provided and agreement was obeyed - Opponent even remained absent before Forum - Such practice by corporate sector cannot be encouraged - Complaint allowed. (Para 4)


Mr. S.B. MHASE, Hon'ble President :- Heard Mr.Anand Dubey, Advocate for the appellant and Mr.Ronak Shah, Advocate for the respondent.

2. The order dated 31/03/2011 passed in consumer complaint No.448/2010 by District Forum, Pune has been challenged by the original opponent. The original complainant is the respondent. At the stage of admission, we heard finally with consent of both the parties.

3. The original complainant has filed complaint stating that he has deposited amount of Rs. 5 Lakhs on 28/11/2008 and there was an agreement executed with the opponent providing a Membership of 30 years and per year two major persons and two children will be given facility to stay in the Resort owned and possessed by the appellant through out the country. It was further agreed that the plot of 5000 sq.ft. was to be given to the complainant and stamp duty and registration charges were recovered from the complainant and thus, amount of Rs. 75,000/- was paid to the opponent. Since, facilities as per the agreement were not provided for and the amount paid was not refunded, the complaint was filed. Admittedly, the appellant is a service provider and they have a chain of Hotels and Resorts through out the country.

4. In spite of service of notice by the District Forum, appellant/org. opponent remained absent and not participated in the proceeding before the District Forum. It is only after the order was passed against the appellant, the appellant has filed present appeal along with delay condonation application. There was delay of 48 days and therefore, by way of mercy to offer an opportunity, we have condoned the delay. On merit in the said delay condonation application we have observed that service of the notice by the District Forum was rightly effected. Address of the appellant/org. opponent was rightly shown in the said notice and it is the appellant who has willfully remained absent. Now the affidavit has been filed to the extent that signature of the postal acknowledgement was not of any of the employees. What we find that the notice was rightly addressed and it was served. Even the address in the appeal memo is the same. So far service is concerned, the postman has given the envelope to the concerned person and signature is there. Such ground was not taken in delay condonation application and in appeal memo. Therefore, said affidavit has no value. Since, appellant is being commercial concern, providing service, it is not possible to identify its employees. But Postman will never give envelop to any stranger. If such type of excuses are accepted, it will be very easy for such appellant to protract the case and invite remand. We cannot go into the controversy whether signature is of their employee or not. When we find that the address of the appellant is correct and notice has been correctly sent and there is postal acknowledgement received back, District Forum has rightly proceeded ex-parte. Secondly, even assuming for a moment that the appellant came to know about the decision of the District Forum by a news item published in Daily 'Sakal' dated 04/06/2011 then, the appellant should have immediately applied for certified copy within a period of one or two days therefrom. However, the appellant applied for certified copy on 30/06/2011 practically after 26 days after receiving the knowledge. That shows that the appellant was not diligent in prosecuting the remedy.

5. Apart from that so far as payments which are concerned, they are supported by the documents. There is nothing brought on record along with appeal memo to demonstrate that service was provided and the agreement was obeyed by the appellant/org. opponent. He is only trying to seek remand of the case. The very purpose of remaining absent in the District Forum is to harass the complainant by inviting a remand order on the point of opportunity of natural justice. This is a regular practice followed by the Corporate Sector which we have noticed in the Consumer Fora. We do not want to encourage such type of practice. Even it is possible for the appellant to bring on record what are the services rendered by them. However, nothing has been brought on record. It is a simplicitor attempt to invite remand. We do not find any merit in the appeal. Hence, we pass the following order :-

-: ORDER :-

1. Appeal is hereby rejected.

2. No order as to costs.

3. Copies of the order be furnished to the parties.

Appeal dismissed.