Justice S.K. Kulshreshtha, President (Oral):

1. This appeal under Section 15 of the Consumer Protection Act. 1986 (hereinafter referred to as 'the Act'), is directed against the order, dated 11.11.2009, passed by the District Consumer Disputes Redressal Forum, Indore in case No. 236/09.

2. The respondent-complainant had Tiled complaint against the Appellant No. 1 Fenny Constructions and other appellant-opposite parties, alleging that they were partners. In connection with the complaint notices were issued by the District Forum by order date, 19.2.2009 and the case was fixed on 24.3.2009. Proceedings of 24.3.2009, reveal that notices had not been issued and that direction was given for issuing them and the case was fixed on 7.5.2009. On 7.5.2009, the case was posted on 29.5.2009 for awaiting service. On 29.5.2009, it was recorded that acknowledgement was not received from any of the opposite parties and the case was posted for awaiting service on 29.6.2009. On 29.6.2009, the proceedings record that the registered A/D notice was received back with the remark that the opposite party Nos. 3, 4 and 5 had been received back with the endorsement that despite knowledge of the registered A/D letter they had not appeared to receive it. District Forum then proceeded against all the appellant opposite parties, ex parte.

3. The contention of the learned Counsel for the respondent-complainant is that the notice having been refused by respondent No. 2 would be notice to all the respondents, as they were partners of the firm. Learned Counsel for the appellants submits that Fenny Constructions is a Private Limited Company, of which appellant No. 2 is Director and appellants 3, 4 and 5 have nothing to do with the said Company, therefore, to draw a negative assumption that because there has been refusal by appellant No. 2-Mahendra Jain, it would be notice to all the five appellant-opposite parties, cannot be accepted.

4. Apparently, appellant No. 3, 4 and 5 were not served, though on account of refusal of notice, service was valid against appellant No. 2-Mahendra Jain, the fact that others have not been served could not have been overlooked. Proceedings dated 29.6.2009 say that opposite party Nos. 3. 4 and 5 had not been served and their notices have been received back. Since the notices have been received- back, presumption of service could not have been raised. Thus, they could not have been made jointly and severally liable along with other opposite parties.

5. We find that the

case should be remanded to the District Forum for trial in accordance with law. The appeal is accordingly allowed, the impugned order is set aside and it is directed that the parties shall appear before the District Forum, Indore on 11th October, 2010. Appeal allowed.