Sri Shyamal Gupta, Member

This Appeal is directed against the Order dated 14-01-2015, passed by the Ld. District Forum, Paschim Medinipur in C. C. No. 88/2014, whereby the complaint case has been allowed ex parte against the OPs.  Being aggrieved by and dissatisfied with the same, OP No. 1 thereof has preferred this Appeal.

Case of the Complainant, briefly narrated, is that, he purchased one Laptop on 12-11-2012.  Allegedly, the said Laptop developed certain problems for which he got the same repaired through the authorized service centre of the Laptop maker, but to no good.  Ultimately, the said Laptop was taken by the Service Engineer of M/s Adams, Kharagpur on 05-12-2013, but till date the same has not been returned to him.  Legal notice issued in this respect also went in vain.  Hence, the complaint case.

Since none of the OPs appeared before the Ld. District Forum, the case was decided ex parte.

Point for determination is whether the impugned Order warrants our intervention over any sort of jurisdictional error, or not.

Decision with reasons

The case of the Appellant/OP No. 1 is that the impugned Order was passed without effecting due service of Notice upon him.  It is further stated that, he being an erstwhile employee of the Appellant Company, cannot be impleaded in the case in his personal capacity.  Also, pointing out that M/s Global IT Net, which actually rendered due service in respect of the subject Laptop has not been made a party to the complaint case, it is averred that the complaint case is bad for non-joinder of parties. Accordingly, he prayed for setting aside of the impugned Order.

Ld. Advocate appearing on behalf of the Respondent No. 1 stoutly defended the impugned Order and prayed for upholding the same.

The first issue needs to be decided is whether due service was effected upon the Appellant, or not.  It is stated in the impugned Order that each of the OPs received notice issued by the Ld. District Forum.  However, perusal of the daily orders pertaining to the concerned complaint case reveal that save and except the OP No. 3, service was not effected upon any other OPs.  It is clear, therefore, that the instant complaint case was proceeded with without due service of notice upon each of the OPs notwithstanding it is the basic tenet of Law that due service must be effected upon each of the Opposite Parties before proceeding further with the case. This is a clear pointer as to the procedural flaw on the part of the Ld. District Forum which renders an Order bad in law. 

Further, we notice that the Respondent No. 1 filed the complaint case against the employees of concerned companies which is not permissible.  It is patent that unless the company, the principal entity, is made a party to the case by virtue of its distinct legal and juristic capacity, the subsidiary entity, the individual, cannot be held liable. It is the settled position of law that Company should be treated as the principal offender and when it is in existence, its non-impleadment will create an incurable dent in the trial. 

No justification has been shown as regards non-inclusion of M/s Global IT Net either, who rendered due service in respect of the Laptop in question.  Also, we find that the maker of the Laptop, i.e., M/s HCL Infosystems Ltd. has not been made a party to the complaint case.

In view of afore mentioned inherent defects with the complaint case, we afraid, the impugned order passed by the Ld. District Forum cannot be upheld. 

Appeal, thus, succeeds.

Hence,

O R D E R E D

that A/982/2015 be and the same is allowed against the Respondents without any cost.  The Respondent No. 1  would be at liberty to file a fresh case before the Ld. District Forum after curing the defects as pointed out hereinabove, if he desires so.  The impugned Order is hereby set aside.