State Consumer Disputes Redressal Commission
M/S Shashi Films (P) Ltd. vs Rajinder Kaushal on 22 April, 2009
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. -------------- FIRST APPEAL NO.195/2007. DATE OF DECISION: 22.4.2009. In the matter of: M/S Shashi Films (P) Ltd., with its Registered Office at: House No.81, Sector 21-A, Chandigarh, through its Managing Director Sh. Aryavir @ Rinku. . Appellant/Opposite party. Versus Rajinder Kaushal son of Sh. Shankar Lal, C/O M/S Him T.V. Andhi Bhawan, Jakhu, Shimla-171001, H.P. . Respondent/Complainant. --------------------------------------------------------------------------------------------------------------- Honble Mr. Justice Arun Kumar Goel (Retd.), President. Honble Mr. Chander Shekhar Sharma, Member. Whether approved for reporting? Yes For the Appellant: Mr. Rakeshwar Lall Sood, Senior Advocate, With S/Shri Arjun Lall, Sanjiv Kumar and Rohit Thakur, Advocates. For the Respondent:Mr. S.D. Gill, Advocate, alongwith Mr. Rajinder Kaushal, respondent, who has been Identified as such by Mr. Gill. --------------------------------------------------------------------------------------------------------------- O R D E R:
Justice Arun Kumar Goel (Retd.), President (Oral).
1. This appeal is directed against the order passed by the District Forum, Shimla, in Consumer Complaint No.44/2004 on 31.7.2006. By means of impugned order complaint was allowed in the following terms:-
As a sequel of the above, we hereby allow this complaint and direct opposite party to replace the machine in question, i.e. D.V. Cam with Beta Cam V.C.R. machine as per quotation dated 26.04.2003, Annexure C-1, within a period of forty five days from the date of receipt of copy of this order and also to pay a sum of Rs.5,000/- as compensation to the complainant on account of deficiency in service and unfair trade practice. The complainant shall also return D.V. Cam machine to the opposite party on receipt of the aforesaid machine. The litigation cost is quantified at Rs.1500/- payable by opposite party to the complainant. It is made clear that in case the opposite party is not in a position to replace the machine as ordered supra, in that event, it shall be liable to refund the cost of the machine amounting to Rs.5,00,000/- alongwith interest at the rate of 9% per annum with effect from the date of filing of the complaint, i.e. 31.07.2006, till actual payment is made, subject to return of D.V. Cam machine. This order shall be complied with by the opposite party within a period of forty five days as ordered supra, from the date of receipt of copy of this order, failing which it shall also be liable to pay a further sum of Rs.5,000/- as punitive damages to the complainant. With these directions, the complaint stands disposed of accordingly. The file after due completion, and after supplying the copies of this order to the parties free of costs, be consigned to record room.
2. Before dealing with the contentions urged by learned Counsel for the parties in this case, facts regarding which they are not at variance need to be noted. Admittedly respondent had placed order with the appellant for the supply of equipment as detailed in Annexure R.1. Since respondent was being financed by Central Bank of India through its Shimla Branch, as such a sum of Rs.3,82,500/- being 50% of the cost price of the equipment was remitted by the bank to the appellant.. Copy of the letter dated 21.10.2003 which was forwarding letter alongwith bank draft of Rs.3,82,500/- is Annexure R.1 aforementioned. According to the appellant, after receipt of the amount vide Annexure R.1, it had delivered the goods in good condition and subject to satisfaction of the respondent, as such he prayed for payment of the balance amount vide Annexure R.2 dated 12.11.2003 addressed by it to the Senior Manager of the Financier bank i.e. Central Bank of India, Shimla. In this behalf it may be appropriate to observe that in Annexure R.2 there is specific mention of the receipt for having received the total equipment for which 50% advance was sent by the bank vide Annexure R.1. Financier bank after receipt of Annexure R.2, released the amount which is again not in dispute between the parties to this appeal.
3. Now the dispute starts. According to the respondent, besides other equipment ordered by him, he had placed order with the appellant for the purchase of Beta Cam V.C.R. at the cost of Rs.5,00,000/-. Respondent pleaded in the complaint that instead of Beta Cam V.C.R., valued at Rs.5,00,000/- appellant supplied D.V. Cam V.C.R. which was of much lesser value. Further case of the respondent is, that at the time of its delivery he was assured by the appellant that he will replace D.V. Cam V.C.R. then supplied with Beta Cam V.C.R, within one week as ordered by him. Receipt of other equipment as detailed in Annexure R.1 with the reply of the respondent is not in dispute. Thus, it was not only a case of deficiency in service, but appellant also indulged into unfair trade practice per the respondent.
4. Another fact that needs to be mentioned here is that the bank had admittedly released the balance 50% in terms of Annexure R.1 after receipt of communication regarding delivery of the entire equipment from the appellant to the respondent on 20.11.2003.
5. While contesting the complaint, stand of the appellant throughout was that it had supplied the entire equipment including Beta Cam V.C.R. instead of D.V. Cam V.C.R as alleged by the respondent. Further according to the appellant while furnishing Annexure R.2, receipt of the supply of goods was provided by it to the Bank, who only on being satisfied regarding delivery of the entire equipment as contained in Annexure R.1 had released the balance 50% of amount in question. After hearing the parties, District Forum below allowed the complaint in the aforesaid terms. Hence this appeal.
6. This appeal was heard on 7.4.2009 when following order was passed by us because it was felt that in order to do complete justice between the parties as well as to give quietus to this litigation and above all for coming to a correct conclusion in this appeal, summoning of the Branch Manager of the Central Bank of India, Shimla, alongwith original record of this case particularly Annexures R.I to R.3 was considered necessary:-
Present: Mr. R.L. Sood, Sr. Advocate with S/Sh. Arjun Lal, Vikas Rajput, and Sanjeev Kumar Advocates for the appellant.
Mr. S.D. Gill, Advocate for the respondent.
Arguments have been concluded in this case.
According to us dispute in this case is within very narrow compass. Reason being that according to appellant it had supplied the goods for which it had submitted the quotation. He had received 50% from the financier bank of the respondent as advance, and the balance 50% was payable by the said banker on delivery of the ordered goods to the satisfaction of the respondent. There is material on record to suggest that after receipt of the advance, goods in terms of the letter with which advance was remitted by the banker were later on supplied by the appellant. Thereafter it had intimated the banker/financier of the respondent regarding not only delivery of the goods, but also about satisfaction of the respondent. It was only then that the balance 50% amount of the entire ordered goods was made.
This is the cumulative effect of a combined reading of Annexures R.1 to R.III filed with its reply by the appellant.
Before dictating the order, we fell it necessary for doing complete justice between the parties, as well as for giving quietus to this litigation and above all for coming to a correct conclusion, that Branch Manager of the bank concerned needs to be summoned alongwith the original record relating to the loan in question including Annexures R.1 to R.III and all other documents attached with these annexures. Though this was objected to on behalf of the respondent.
However we feel that neither we are bound by the rules of procedure nor by rules of evidence. Only prevailing consideration under the Consumer Protection Act, 1986 while adjudicating the disputes between the litigants like parties in this appeal is, that justice being administered evenhandedly to both the parties based on equity, fair play, good conscious and natural justice without being guided by the rules of procedures or the evidence.
In view of the aforesaid, the Branch Manager of the Central Bank of India, Branch Office Shimla is directed to produce original loan file of M/s Him Televisions, Andhi Bhawan, Shimla. While sending notice to the Branch Manager office is directed to send copies of Annexures R-I to R-III, and he is further directed to bring the original/office copies of these documents alongwith accompanying receipts/documents as well as the original file)s) containing those. Notice for appearance to the Branch Manager alongwith aforesaid record be issued, returnable for 22.4.2009. While summoning the Branch Manager of the bank, copy of this order will be attached by the office.
7. Today Mr. Shalender Kumar, Chief Manager of the Shimla Branch of Central Bank of India has appeared alongwith original record. Original record has been examined by us as also by learned Counsel for the parties. It was on the basis of the contemporaneous official record of the bank, Mr. Kumar submitted that as per settled banking norms, practice and procedure, the balance 50% amount in this case could only be released in favour of the appellant after receipt of the entire equipment in terms of Annexure R.1. He further informed us that in the absence of proof of delivery there was no question of bank having released the balance amount.
8. According to learned Senior Advocate Mr. Sood, appearing for the appellant, District Forum below gravely erred in ignoring Annexures R.1 and R.3 which were issued by none else than the Central Bank of India, Shimla branch.
Further according to him, issuance of these letters cannot be allowed to be disputed by the respondent. And in case equipment in terms of Annexure R.I had not been supplied by his client to the respondent as set out in para-6 of the complaint, which position was disputed by the appellant, then in the ordinary course of things, conduct of the respondent would have been to have informed the bank regarding supply of D.V. Cam V.C.R. instead of Beta Cam V.C.R. actually ordered, value whereof was Rs.5,00,000/-. We specifically asked learned Counsel for the respondent as to what action did his client take in this behalf when he was supplied D.V. Cam V.C.R. instead of Beta Cam V.C.R. ordered by the respondent. By referring to Annexure C.3, Mr. Gill forcefully urged that his client had only signed the same and it is a credit memo and there is no receipt in it.
9. However, in the bank record which was perused by learned Counsel for the parties as well as by us, there is endorsement below the signatures of the respondent Received all the items are in my custody. Again below this endorsement, there are signatures of the respondent which were not disputed at the time of hearing of this appeal by him after having seen the Bank record. In the face of this factual position, stand of the respondent that Annexure C.3 is only a credit memo and not receipt of the equipment mentioned in it and the same being in possession of the respondent is factually incorrect being contrary to this document. Here, the well known maxim in law that men may lie, documents would not, is fully applicable.
10. In support of this appeal, learned Senior Counsel had raised number of pleas viz., respondent was not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act. 1986, the documents filed with the complaint were not worthy of credence; and District Forum below fell into error by passing the impugned order after relying on those documents. Further according to the appellant, the stand regarding having been delivered only D.V. Cam and not Beta Cam V.C.R. and/or any assurance having been held out as alleged in para-6 of the complaint, was specifically disputed in its reply by the former. Best course open for the respondent was to have filed a rejoinder and having said something on factual matrix. There is no such thing. Mr. Sood also pointed out that holding everything against his client for the sake of argument without admitting, even then the impugned order is liable to be set aside. This is a case of no evidence, and at the same time it is also a case where documents Annexures R.I to R.3 were completely misread besides having not been properly appreciated by the District Forum below.
11. We do not propose to deal with these submissions for the simple reason that we are satisfied on the basis of the above discussion as well as from the bank record which was admitted by the parties, that the respondent had received Beta Cam V.C.R. of the value of Rs.5,00,000/- from the appellant and his stand to the contrary was factually incorrect. Now the opposition on behalf of his client to direct the bank for producing record on 7.4.2009 can also be well understood.
12. Passing of the aforesaid order, summoning of bank record was felt necessary by us for our satisfaction as well as for coming to a correct conclusion that it was summoned. That being the position, we are of the view that no benefit can be derived from Annexure C.3 by the respondent and we are further satisfied that the bank as already observed would and in fact had released the amount only after being satisfied on the basis of the receipt from the respondent, that he had received the equipment and it was in his custody.
13. At this stage, learned Counsel for the respondent submitted that his client has been wronged by the appellant and in fact was cheated by the appellant when he assured that Beta Cam V.C.R. will be supplied within one week, and till such time he should manage with D.V. Cam V.C.R. We are of the view that in case this was the factual position, nothing prevented the respondent to have at least immediately informed his financier-bank not to release a single penny in view of this situation despite his having mentioned about the receipt of equipment and the same being in his custody. Or atleast he should have got something in writing from the appellant keeping in view the price of Beta Cam and D.V. Cam. Per Mr. Gill, price of D.V. Cam was about two lacs i.e. 40% of the Beta Cam V.C.R.
14. In these circumstances, we are more than satisfied that the complaint was wholly misconceived because the appellant had supplied the goods and the respondent had received those including Beta Cam V.C.R. and not D.V. Cam V.C.R. as alleged by him. Once this conclusion is arrived at, the decision of this complaint need not detain us.
15. No other point was urged.
In view of the aforesaid discussion, we are of the view that this appeal deserves to be allowed. Ordered accordingly and as a result of it order passed by the District Forum below in Complaint No.44/2004 on 31.7.2006 is hereby quashed and set aside, and consequently the said complaint is dismissed, leaving the parties to bear their own costs.
All interim orders passed from time to time in this appeal shall stand vacated forthwith.
Learned Counsel for the parties have undertaken to collect authenticated copy of this order free of cost from the Court Secretary in accordance with Rules.
Shimla, April 22, 2009.
( Justice Arun Kmar Goel ) (Retd.) President /BS/ ( Chander Shekhar Sharma ) Member.
First Appeal No.195/2007.
22.4.2009.
Present: Mr. Rakeshwar Lall Sood, Senior Advocate, With Mr. Rohit Thakur, Advocate, For the appellant.
Mr. S.D. Gill, Advocate, For the respondent, alongwith Mr. Rajinder Kaushal, who has been identified as such by Mr. Gill.
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Vide separate order of the date, appeal is allowed, impugned order set aside and consequently the complaint is dismissed, leaving the parties to bear their own costs.
( Justice Arun Kumar Goel ) (Retd.) President ( Chander Shekhar Sharma ) /BS/ Member.