State Consumer Disputes Redressal Commission
Amit Enterprises vs Balram Gaur on 18 August, 2015
M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PLOT NO. 76, ARERA HILLS, BHOPAL (M.P.)
FIRST APPEAL No.1195 /2011.
DECIDED ON : 18.8.2015.
M/s Amit Enterprises,
Banapura,
Through - Proprietor,
Amit Paliwal,
Add - Main Road, Banapura,
Tehsil - Seoni Malva,
District Hoshangabad (M.P.).
....APPELLANT.
VERSUS
1. Shri Balram Gour
s/o Shri Keshav Gour,
Add - Rajora Kurmi,
Tehsil - Seoni Malva,
Distt. Hoshangabad (M.P.).
2. Sudarshan Industries,
Through - Director,
Vikaram Nagar Golana,
Tehsil Badnagar,
District Ujjain (M.P.).
....RESPONDENTS.
BEFORE:
HON'BLE SHRI JUSTICE RAKESH SAKSENA, PRESIDENT
HON'BLE SMT. NEERJA SINGH, MEMBER
HON'BLE MEMBER SHRI SUBHASH JAIN, MEMBER
COUNSEL APPEARING FOR THE PARTIES :
SHRI DEEPESH SHUKLA, LEARNED COUNSEL FOR APPELLANT.
SHRI BALRAM GOUR / RESPONDENT NO.1 IN PERSON.
MS. MONA PALIWAL, LEARNED COUNSEL FOR RESPONDENT NO.2.
- 2-
ORDER
The following order of the Commission was delivered by Rakesh Saksena, J. :
Appellant / Judgement Debtor has filed this appeal under Section 27A of the Consumer Protection Act, 1986 against the order dated 31.5.2011 passed by the District Forum, Hoshangabad in Execution Case No.27/2007.
2. In short, the facts of the case are that complainant / respondent no.1 filed the complaint against the appellant stating that he purchased a thresher from appellant for Rs.47001/-, but the said thresher did not work properly. The mechanic who examined the thresher informed that there was some manufacturing defect in it. On complaint being made, the appellant exchanged the said thresher with another, but the new thresher was also defective. Since the appellant did not give defect free thresher complainant filed complaint case No.50/2004 in the District Forum for refund of the price of the thresher and compensation.
3. The appellant opposed the allegations made in the complaint stating that the complainant purchased another thresher for Rs.85,000/- also but did not pay the price.
4. The Forum by order dated 12.4.2007 allowed the complaint and directed appellant to pay to complainant Rs.47001/- with interest at the rate of 6% per annum from 1.3.2004 till payment, Rs.7000/- by way of compensation and Rs.1000/- as costs. Forum further directed that if the order was not complied with within 30 days, the rate of interest would be 8% per annum. While passing the above order, the Forum also directed complainant to return the disputed and
- 3- another thresher to appellant / judgement debtor, if in his possession. Since appellant preferred no appeal against the said order, it became final.
5. For execution of the said order, the complainant filed execution No.8/2007 in the Forum. On 16.11.2007, in the execution proceedings complainant / decree holder expressed that there was only one thresher in his possession which he was ready to return. The counsel of judgment debtor also agreed to pay the decreetal amount to complainant. However on the same day, later on counsel of the judgement debtor stated that the complainant had two threshers in possession, therefore, both should be returned. On 23.11.2007 the complainant produced one thresher in the Forum, but the counsel for judgement debtor demanded that complainant should return two threshers. The complainant however, remained firm that there was only one thresher with him.
6. The judgement debtor then filed a separate execution case, registered as Execution No.27/2007 stating in view of the Forum's order complainant should return two threshers. The complainant maintained that he had only one thresher which he was ready to return. The Forum taking into consideration the order of the Forum held that there were strong grounds to hold that the complainant had only one thresher, and dismissed the execution filed by the judgement debtor on 31.5.2011. The appellant / judgement debtor has therefore, filed this appeal challenging the said order. Learned counsel for the appellant / judgement debtor submitted that the appellant had given two threshers to complainant, therefore, in view of the main order passed by the Forum on 12.4.2007 he was entitled to receive both the threshers. In respect of the second thresher worth Rs.85000/-, which appellant gave to complainant, he had already filed the civil suit in the Court of Third Additional District Judge, Hoshangabad which was pending as Civil Suit No.3B/2008. Therefore, the -4- finding given by the Forum in execution case No.27/2007 that there were reasonable and strong grounds to hold that complainant had only one thresher was prejudicial to him. Even the Forum in its final order had observed if complainant had two threshers he would return them to appellant. Learned counsel expressed appellant's readiness to pay the amount as awarded by the District Forum if one thresher was returned to him by the complainant. He, however, submitted that finding recorded by the executing court about the second thresher deserved to be set-aside since in respect of the second thresher the civil suit was pending.
7. Balram Gour / decree holder, who is present in person stressed that he had only one thresher which he was ready to return.
8. From perusal of the order dated 12.4.2007 passed by the Forum it is apparent that the Forum gave no firm and unequivocal finding about the fact whether complainant had only one thresher or had two threshers. The Forum gave an ambiguous finding that if complainant was in possession of the disputed thresher and also another thresher he shall return the same to judgement debtor. The Forum however, in Execution Case No.27/2007, to some extent, exceeded and observed that there were strong and sufficient grounds to hold that complainant had only one thresher, and dismissed the execution filed by the appellant.
9. At this stage, it is significant to note that for recovery of the second thresher or its price, civil suit no.3B/2008 filed by the appellant is pending in the Civil Court. This position has not been disputed by the respondent / complainant / decree holder. In these circumstances, in our opinion, it was not just and proper for the Forum to have recorded a finding that complainant had no -5- other thresher. Though we do not approve the nature of finding given by the Forum in the order dated 12.4.2007, but at the face, in our opinion, it indicated that Forum itself was not clear as to how many threshers were in possession of the complainant and, therefore, left the option with the complainant to return either one or two threshers, if he had. In these circumstances, in the execution proceedings the Forum had no other option except to accept the version of the complainant / decree holder. Since complainant stated that he had only one thresher, for the purpose of the proceedings before the Forum, it has to be deemed that he had only one thresher which he has been directed to return.
10. For the aforesaid reasons, the finding recorded by the Forum in the order dated 31.5.2011 that there was sufficient ground to hold that complainant had only one thresher is set-aside. The question about the second thresher, in respect of which the civil suit is pending before the Civil Court is kept open to be decided by the Civil Court.
11. At this stage, learned counsel for the appellant / judgement debtor submitted that if the complainant / decree holder delivers the possession of one disputed thresher to him, he would comply the order passed by the Forum on 12.4.2007 and pay all the dues to complainant in terms of the said order. The complainant / Balram Gour also expressed his readiness to deliver possession of disputed thresher to appellant / judgement debtor.
12. Accordingly, it is directed that respondent / Balram Gour shall produce the disputed thresher before the District Forum on 28.9.2015 or any other date fixed by Forum for delivering the same to appellant and on the same day the appellant shall deposit the amount due in terms of the order dated 12.4.2007 in the Forum for payment to complainant. Both the parties shall appear before the District Forum, Hoshangabad on 28.9.2015.
- 6- The appeal stands disposed of in terms indicated hereinabove.
(Justice Rakesh Saksena) (Smt. Neerja Singh) (Subhash Jain)
PRESIDENT MEMBER MEMBER
Phadke