Partly allowed

Kishore Laxminarayan Mantri and Others v. Prabhawati Vijay Kulkarni and Others

Bombay HC18 Mar 2013WP/2011/2013

Case brief

AI extract

What is this about?

The High Court set aside the District Consumer Forum's order dismissing a First Appeal in default. Despite the petitioners' non-appearance on multiple dates due to their advocate's scheduling issues and failure to deposit legal aid costs, the Court exercised discretion to restore the appeal, imposing a conditional order to pay Rs. 5,000 costs and a Rs. 500 deposit.

What did the court decide?

The order dismissing the appeal in default is set aside; First Appeal A/948/2008 is restored; petitioners directed to pay Rs. 5,000 costs and Rs. 500 deposit.

Kishore Laxminarayan Mantri and Others Vs Prabhawati… — Consumer Protection | Bombay HC (2013)

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1 2011.2013 WP

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 2011 OF 2013

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1] Kishore S/o Laxminarayan Mantri, Age 35 yrs, Occu. Business, R/o Veer Hanumantwadi, Motinagar Gate, Motinagar, Latur.

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2] M/s Gaurav Builders and Developers, Main office ETD Complex, Maniknagar, Airport Road, Taroda (Bk), Nanded.

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3] M/s Gaurav Builders and Developers, Regd. Office, Akashdeep Apt. Veer Hanumantwadi, Motinagar Gate, Motinagar, Latur. .. Petitioners

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Versus

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1] Sau. Prabhawati w/o Vijay Kulkarni, Age 40 yrs, Occu. Service, R/o Kalamandir, Nanded.

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2] Sau. Sunanda W/o Maroti Dande, Age 35 yrs, Occu. Service, R/o Mantri Colony, Gaurav Nagar, Taroda (Bk), Nanded.

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3] HDFC House, Ravishankar Shuka road, VIP road, Civil Lines, Nagpur, Branch Office, Hingoli.

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2 2011.2013 WP

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4] Sarpanch/ Gramsevak, Village Panchayat Taroda (Khurd) Tq. & Dist. Nanded. .. Respondents

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Shri Amit S. Deshpande, Advocate for petitioners Shri M.B. Vaishnav, Advocate for respondent No. 1

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CORAM : S. V. GANGAPURWALA, J. DATE : 18th MARCH, 2013.

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ORAL JUDGMENT :

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. Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing.

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The Petitioners had filed an appeal before the State Redressal Consumer Commission, Mumbai Bench at Aurangabad against the order of the District Consumer Forum. The said appeal is dismissed in default. The said order of dismissing the appeal is assailed in this petition.

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Shri Deshpande, learned counsel for the petitioners submit that the Advocate for the petitioners could not attend the State Redressal Consumer Commission because of his difficulty. The petitioners also complied the order of the State Redressal Consumer Commission directing to deposit Rs. Two lakhs.

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3 2011.2013 WP

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According to the learned counsel, non appearance on the said date was not intentional, but due to the personal difficulty of the Advocate, the Advocate could not attend.

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Learned counsel for the respondent No. 1, supports the order and submits that on nine dates the petitioners remained absent. No plausible reason is given by the petitioners for remaining absent on these nine occasions. According to the learned counsel, even cost of Rs. 500/- is not deposited to Legal Aid account, as directed vide order dated 24/03/2012.

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It appears that the appeal came to be dismissed in default for not taking steps to serve the notice to respondent No. 1. It appears that the State Redressal Consumer Commission had directed the petitioners to deposit cost of Rs. 500/- which was not deposited.

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The litigant cannot made to suffer because of the inability of the Advocate concerned to attend the Court proceedings. Petitioners have also deposited Rs. Two lakhs with the District Consumer Forum, as per the order passed by the State Redressal Consumer Commission. Considering the nature of the dispute

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4 2011.2013 WP

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and the reasons given by the Advocate of the petitioners, I am inclined to afford one more opportunity to the petitioners. However, the petitioners also deserve to mulct with costs.

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7. In the light of above, I pass following order.

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ORDER

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A] The impugned order dismissing the appeal in default is set aside, and First Appeal A/948/2008 is restored to its original position, on condition that the petitioners shall pay costs of Rs. 5,000/- (Rs. Five thousand only) to the respondent No. 1 in addition to Rs. 500/- which was directed to be paid by State Redressal Consumer Commission. The said costs be paid to the respondent No. 1 within three weeks from today.

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B] The parties shall appear before the State Redressal Consumer Commission, Mumbai Bench at Aurangabad on 08/04/2013.

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C] In case the costs is deposited with the State Redressal Consumer Commission, Mumbai Bench at Aurangabad. The respondent No. 1 is entitled to withdraw the same.

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. Rule is made absolute in above terms.

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[ S. V. GANGAPURWALA, J. ]

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SDM*/March-2013

Kishore Laxminarayan Mantri and Others v. Prabhawati Vijay Kulkarni and Others

Case brief

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Kishore Laxminarayan Mantri and Others v. Prabhawati Vijay Kulkarni and Others

Case brief

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What did the court decide?

What the court decided

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