First Appeal No. 2008/885

(Arising from the order dated 17.08.2007 passed by District Forum(New Delhi) Kasturba Gandhi Marg, New Delhi, in Complaint Case No.1250/2006)

Royal Mobiles, … Appellant/OP

10/127, Malviya Nagar through Mr. Mohd. Irfan,

New Delhi advocate,

Through its Proprietor

Versus


1. Sh. Sundeep Gupta ... Respondent/Complainant.
R/o A-40, Vasant Marg, through Mr. Rajiv Khanna,
New Delhi advocate.

2. 4th Generation Mobile

Retailing & Broadband Services

Private Limited,

507, Ansal Bhawan,

Kasturba Gandhi Marg,

New Delhi.



3. Asian Electronics,

J-139, Rajouri Garden,

New Delhi



CORAM



Justice Barkat Ali Zaidi ... President

Sh. M.L. Sahni … Member

1. Whether reporters of local newspapers be allowed to see the judgment?



2. To be referred to the Reporter or not?

Justice Barkat Ali Zaidi, President(ORAL)

1. The respondent filed a complaint before District Forum alleging that he purchased a mobile set from OP No.2 (Appellant) which turned defective after few days. He approached OP No.2 for repairs but in vain. He therefore prayed the District Forum for directing the OPs to refund him the purchase amount of Rs.52,500/- and to take back the old set and also to pay compensation amount and cost of litigation. OPs did not appear before District Forum and the District Forum passed an award in favour of the complainant directing the OP No.2 to pay Rs.52,000/- to the complainant and an amount of Rs.4,000/- as compensation and Rs.1000/- as cost of litigation.

2. That is what brings the appellant OP No.2 here in appeal.

3. We have heard Mr. Mohd. Irfan, counsel for the appellant and Mr. Rajiv Khanna, Counsel for respondent No.1 complainant and have perused the written reply filed on behalf of respondent No.1 in this appeal.

4. It will appear from para No.4 of the written reply filed by respondent No.1 here and that of his affidavit filed before District Forum, that an agreement had been arrived at between the parties that the complainant respondent No.1 shall withdrawn the complaint filed by him before the District Forum, for the reason that the appellant company had replaced the old mobile set by supplying him a new mobile set bearing IMEI No. 355195008603119 on 22.03.2007.

5. On query respondent No.1 stated before us that he did not withdraw the case which is also his case in the written reply filed here, because the substituted mobile phone was also not functioning properly. The contention is unacceptable because the agreement arrived at between the parties had to be honoured and enforced. In accordance with the agreement, the complaint filed by the respondent No.1 should have been withdrawn. If the new mobile was also found defective another complaint should have been filed about the same and this complaint should not have been allowed to continue in violation of the agreement between the parties.

6. In these circumstances, no order for replacement of the mobile set or refund of the purchase amount could be passed and no compensation could be granted in this complaint and the complaint therefore have been dismissed.

7. Appeal is allowed and the complaint shall stand dismissed. No order as to costs.

8. FDR/Bank Guarantee, if any deposited by the appellant be released in favour of the appellant subject to complete of formalities.

9. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.

10. Announced on the 12th day of November 2009.