Heard learned counsel for the appellants, learned counsel for respondent No.1 and learned counsel for respondent No. 2.

          None appears for respondent Nos.3 to 5 although notices against them are made sufficient.

2.      This is an appeal filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.

3.    The case of the complainant in brief is that the complainant being need of a tractor and trolley requested OP No.3 to finance who agreed to finance for the purchase of the same. Then the complainant alleged inter alia that with the help of OP No.3, he purchased Swaraj Tractor and Trolley from OP No. 1. Accordingly, the complainant  purchased the tractor  for Rs.3,19,465 and trolley for Rs.1,00,000/- all together Rs.4,19,465/- out of which OP No.3 sanctioned finance of Rs.2,70,000/-. Complainant alleged that he has paid Rs.1,26,918/- as margin money with the appellants. The complainant got delivery of the Tractor and Trolley on 27.6.2008 and found the Tractor was not performing well. After verification it was found that the manufacturing year of the Tractor of Swaraj is 2000 but the vehicle was sold on 27.6.2008 by  stating  it belonging to 2008 make. The complainant allegedly  informed OP Nos. 1 and 2, but they informed that to the knowledge of the complainant such old model, tractor has been supplied. When the complainant approached OP No.3 and on his advice complainant surrendered the tractor and trolley with OP No.3. The complainant alleged that since there is unfair trade practice by OP Nos. 1 and 2 with the knowledge of OP No.3, all are liable for deficiency of service and unfair trade practice.

4.      Per contra, OP Nos. 1 and 2 filed written version stating that they have sold the tractor and trolley in question to the complainant of year 2000 model but it was with the knowledge of the complainant because before sale the complaint has visited their workshop and accordingly agreed to purchase the said old model.  Further, it is averred in the written version that for such sale of old model tractor, they had made concession of Rs.1,26,918/- from the original value. It is further averred in the written version that the registration certificate of manufacturing year of the tractor shown as March, 2008 because  after the tractor was sold the manufacturing year becomes of that year when it is registered. However, it is stated that they have no any unfair trade practice or deficiency of service. They alleged that false case has been filed against them.

5.      OP No.3 filed written version by admitting that he has financed for the purchase of tractor and trolley  to the complainant. But he has no role so far sale of old model tractor. It is only the duty of concerned OP No.3 to  sanction finance for purchase of tractor and trolley and he has done so. For that also the complainant has deposited Rs.1,26,918/- as margin money to avail the loan. It is also stated by this OP that when the complainant alleged about defect of the tractor, he has expressed his  ignorance and directed to contact OP Nos. 1 and 2 for removal of defect. This OP admitted that since the complainant could not repay the loan due to defective tractor and he intended to surrender the vehicle the OP agreed to the same and on 13.7.2009, the vehicle was surrendered by terminating the contract. Since this OP has no role in the matter between the complainant and OP No.2, he submitted that the complaint is not maintainable against him. Accordingly, he submitted to exonerate from the liability.

6.      After hearing both parties the learned District Forum passed the following impugned order:-

                             “xxx   xxx   xxx

          In view of the above findings we allow the case of the complainant and direct the opposite party No.1 to replace the tractor and trolley as supplied to the complainant. In the event of non-replacement, the opposite party No.1 is to pay Rs.4,19,465/- to the complainant. At the same time, opposite party No.3 is directed to handover the Tractor and trolley to opposite party No.1 through the complainant on proper receipt in order to get back the loan dues against the said Tractor and trolley from the complainant. We further direct the opposite party No.1 to pay a sum of Rs.2000/- towards cost of the litigation to the complainant. The roder is to complied within three months from the date of receipt of this order. The case is disposed of accordingly.”

7.      Learned counsel for the appellant submitted that the learned District Forum has committed error in law by making him jointly liable with OP Nos. 1 and 2 although he has only role to finance the complainant for purchasing the tractor and trolley. Learned District Forum ought not to have entertained the dispute against him as the entire allegation of unfair trade practice was against the OP Nos. 1 and 2. It is false to say that he has instructed the complainant for purchase of tractor from OP Nos. 1 and 2.

8.      Learned counsel for the appellants submitted that the learned District Forum committed error in law to hold him responsible for non-payment of loan amount in all because due to defective tractor the complainant allegedly could not utilize the said tractor to get full amount of utility. Learned District Forum should have only directed OPs 1 and 2 to pay compensation as it is the allegation of the complainant that due to unfair trade practice and defect of the tractor he has made the tractor off road by not utilizing the same. Learned District Forum has also committed error in law by not considering the written version of the appellants where it is clearly stated that he has financed after deposit of margin money of Rs.1,26,918/- by the complainant and after payment of certain instalment further instalments were   to be paid. Learned District Forum ought to have held that OP No.3  have no role,  but OP No.1 who has entire responsibility being dealer of Swaraj Tractor. He further submitted that after surrendering of the vehicle the contract between the parties has been terminated and as such there is no relationship between the complainant and OP No.3 to direct the appellant to pay anything else. So he submitted to allow the appeal by setting aside the impugned order.

9.      Learned counsel for respondent No.1 submitted that learned District Forum has rightly assessed the evidence of both parties and finally made all the OPs jointly and severally liable to pay compensation with interest. He submitted that since OP No.3 has  motivated the complainant to purchase the tractor from OP No. 1 and also when OP No.3 advised the complainant to surrender the tractor, the necessary contract of OP No.3 has been rightly judged by the  learned District Forum  to have joint liability with OP Nos. 1 and 2. He further submitted that the unfair trade practice of OP Nos. 1 and 3 and said fact has been understood well by the learned District Forum. In such circumstances, he supports the impugned order.

10.    Learned counsel for respondent No.2 submitted that learned District Forum has committed error in law by not assessing the material produced by the complainant. According to him, the registration certificate clearly shows that the manufacturing year of the tractor was 2008 and the allegation of the complainant in this regard is totally false. He further submitted that for the selling of the tractor there is concession in payment of given for Rs.1,26,918/- which has been duly credited to the complainant’s loan account, thus  shows the  indulgence of the complainant to purchase the tractor in question and there is no unfair trade practice on the part of this OP. Hence, learned District Forum committed error in law by not appreciating this factual aspect while making this OP jointly liable with other OPs. He further submitted that the complainant himself failed to prove the sale of old model tractor and when complainant has failed to prove same, the learned District Forum  ought to have considered this aspect. However, he admitted that he has not filed the appeal but he sincerely took step to exonerate them from the liability as fixed by the  learned District Forum.

11.    Considered the submission of learned counsel for the appellants and perused the DFR including the impugned order.

12.    It is the complainant to prove the case of deficiency of service and unfair trade practice on the part of the OPs.

It is admitted fact that the complainant has purchased the tractor and trolley being financed by OP No.3. It is also not in dispute that the OP No.3 appellant financed Rs.2,70,000/- to purchase the tractor. It is also not in dispute that the tractor and trolley both are sold on Rs.4,19,456/- out of which the margin money of Rs.1,26,918/- was  deposited by the complainant.

13.    Complainant in order to prove the case has produced  document on record. The copy of the invoice memo shows that complainant has purchased the tractor and trolley from OP No.1 but no where it is  found to which year the engine number and chassis number belongs to as the chassis number and engine number have been only  mentioned in the invoice. The said invoice related to dated 26.6.2008. It is also found from the challan that on 10.7.2008 said engine and chassis of Swaraj Tractor has been delivered. The registration certificate shows that there is mention of engine and chassis number but the year of making is not mentioned  against engine and chassis concerned. In the right side of the registration certificate, it is found that registration was made on  27.6.2008 and  year of manufacturer is written as  June, 2008. So definitely this manufacturing year is related to the registration of the tractor. Besides, respondent No.1 has admitted in their written note of argument at Para  - 6  which is as follows:-

                             “xxx   xxx   xxx

            That the appellant has suppressed the material  facts before this Hon’ble Commission with regard to Agreement etc. it is a fact that the Appellant directed for signature on volume of papers without saying about it and now cannot take the plea of some Arbitration Clause etc. which is without the knowledge of the Respondent No.1. Moreover, there is n bar under the provisions of the C.P.Act, 1986 to approach the Forum below for redressal of consumer disputes and accordingly the Respondent No.1 took the privilege of the said provision making no wrong in it. Besides the same, the Respondent No.1 being at Berhampur in the State of Odisha cannot be a subject to avail the Arbitration clause at Mumbai. It is wrong to say that the Respondent no.1 is defaulter in loan repayment and the same has never been uttered before the Court below.

xxx   xxx   xxx”

14.    When the facts are admitted that he has sold the old model tractor and knowledge of the complainant is totally denied by the complainant, there is reason to believe that  OP No.1 has sold the old model  tractor which gave defect. At the same time, he admitted to have extended concession by depositing the money in the account of OP No.3. Of course, OP No.3 admitted that this amount is the margin money paid by the complainant and complainant also admitted said fact of deposit of such amount to avail the loan. So, payment of concession  in consideration without any agreement there to in writing and latter on taking a plea that with knowledge of complainant it was sold  is deficiency in service and unfair trade practice on the part of OP No.1. In this regard, there is already vivid discussion made by the learned District Forum and the view of learned District Forum in this regard is found to be correct.

15.    The next question arises whether the appellants can be saddled with joint liability with OP No.1. It is clear from the materials on record and the pleadings that OP No.3 has financed for purchasing the tractor and trolley which was sold by OP No.1 by adopting unfair trade practice. When OP No.3 came to know about this aspect from the complainant, it took plea that  this matter is between the complainant and OP Nos. 1 and 2 and he has no business except extending finance for the tractor and trolley. The sale of old model tractor showing  it  as new model at the instance of  OP No.1 cannot be said to be the intention of OP No.3 although he has accepted the margin money from the complainant as finance.

16.    Be that as it may, the learned District Forum has not discussed in detail about this aspect. Therefore, the learned District Forum has committed  error by not distinguishing the liability of  different OPs rather it is found from the written version that OP No.3 advised to surrender the tractor and trolley to end the contract, so that the liability for payment of fiancé amount on the complainant would not be multiplied. In fact, complainant has admitted the same. Therefore, surrendering the vehicle with OP No.3 cannot be taken as conspiracy with the OPs 1 and 2.

17.    Be that as it may, learned District Forum in its impugned order has not distinguished the role of different OPs but all the OPs are made responsible for the loss caused to the complainant. When the contract between OP No.3 and complainant has come to an end,  there is no liability fixed with OP No.3, thus  the finding of  learned District Forum in this regard is  interfered and as such, the liability of OP No.3 appellant is set aside.

18.    Therefore, the direction of the learned District Forum that OP No.3 shall handover the tractor and trolley to OP No.1 through the complainant is set aside. Rest portion of the impugned order is confirmed.

The appeal is disposed of accordingly. No cost.

          DFR be sent back forthwith.

Statutory amount deposited be refunded to the appellants with interest accrued thereon, if any on proper identification.

Supply free copy of this order to the respective parties.