Dismissed

M/s. Creative Constructions v. The District Forum

Telangana HC21 Mar 2012WP/3891/2011

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the State Commission's dismissal of a petition for condonation of delay. The Court upheld the deemed service of notices sent by registered post which were returned with endorsements indicating the addressee was away, relying on Section 28A of the Consumer Protection Act and Section 27 of the General Clauses Act.

What did the court decide?

The writ petition and miscellaneous application were dismissed; no order as to costs.

M/s. Creative Constructions Vs The District Forum — Consumer Protection | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE V.V.S.RAO AND

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THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY

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WRIT PETITION No.3891 OF 2011

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March 21, 2012

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Between:

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M/s.Creating Constructions, represented by its Proprietor Muni Srinivasa Rao, S/o.Kalidasu Appa Rao

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... Petitioner

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And

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The District Forum, constituted under The Consumer Protection Act at Srikakulam, Represented by its Presiding Officer And others

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... Respondents

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THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY WRIT PETITION No.3891 OF 2011

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ORDER: (Per Hon’ble Sri Justice V.V.S.Rao)

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Mallareddy Babu Rao (the complainant), since no more, filed C.D.No.168 of 2005 before the District Forum, Srikakulam seeking a direction to the petitioner (opposite party) and its proprietor to execute registered sale deed for plot Nos.1 to 4 of Uma Shankar Lay-out in L.P. No.97/90 of Srikakulam. The notices were ordered to the opposite party. They returned unserved. The complainant, therefore, sought permission to publish notice in Telugu daily “Janatha” having circulation in the area. During the enquiry before the District Forum, the complainant marked four documents and also filed an affidavit. Considering these, the District Forum directed the opposite party to register sale deed and also pay Rs.50,000/- towards compensation and Rs.1,000/towards litigation expenses. Two months time was granted for complying with the order.

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The complainant took out proceedings under Section 27 of the Consumer Protection Act, 1986 (the Act) by filing P.P. No.33 of 2006. After receiving the notice the proprietor of the opposite party moved an application being I.A.No.17 of 2007 to set aside the order dated 27.2.2006 in C.D.No.168 of 2005 passed by the District Forum. The same was dismissed on 15.10.2008. The opposite party then preferred F.A. S.R. No.6188 of 2008. He also filed I.A.No.258 of 2009 for condonation of delay of 894 days in

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preferring the appeal. He took the pleas that he did not receive any notice and that publication in “Janatha” Telugu daily is not proper publication. On considering the submission, the learned Andhra Pradesh State Consumer Disputes Redressal Commission (the State Commission) dismissed the delay excuse petition on 29.12.2010. This order is assailed in this writ petition.

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The Counsel for the petitioner/opposite party submits that the District Forum cannot come to conclusion that the notice is deemed to have been served unless there is a specific endorsement on the returned postal cover that the opposite party refused to receive the notice.

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A perusal of Section 28A of the Act would show that when the notice sent by the District Forum/State Commission/National Commission is refused, it shall be construed that the notice is served. That is not a lone circumstance to draw an inference of deemed service of notice. In this case, as found by the State Commission, the postal covers were returned with endorsement that, “addressee away and the inmates had informed that they were unable to mention as to when he would come and they have repeatedly visited the house two to three times and hence returned”. This is also a circumstance which certainly falls under Section 28A(4) of the Act.

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In this connection, we may refer to the decision of the Supreme Court in C.C.Alavi Haji v Palapetty Muhamme d^[1] , wherein it was held that when a notice is sent by registered post and is returned with a postal endorsement ‘refused’ or ‘not available in the house’, it is presumed that the notice is served. The relevant observations are as follows.

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Section 27 of the General Clauses Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of

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the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement “refused” or “not available in the house” or “house locked” or “shop closed” or “addressee not in station”, due service has to be presumed (vide Jagdish Singh

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[2] [3] v. Natthu Sing h ; State of M.P. v. Hirala l and V.Raja [4] Kumari v. P.Subbarama Naid u ) . It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved.

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The address of the opposite party in C.D. No.168 of 2005 filed before the District Forum and in P.P. No.33 of 2006 remains the same. Admittedly the petitioner received notices in the penalty petition. It is rather curious that he did not receive the notice sent through the postal department. In that view of the matter, we are of considered opinion that the order passed by the State Commission does not suffer from any error apparent on the face of the record.

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The writ petition is, therefore, dismissed. The miscellaneous application shall stand dismissed. There shall be no order as to costs.

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________________________________ (G.KRISHNA MOHAN REDDY, J)

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March 21, 2012 YS

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