Tripura State Consumer Disputes Redressal Commission, Agartala.
Case No.RP.4.2019
- Maa Kamakhya Machineries,
Represented by Mr. Sanjoy Kanoo,
The Proprietor, Ullakh Market,
Near Railway Gate No.4, M.S. Road,
Guwahati, Assam, Pin – 781001,
District - Kamrup (Metro), Assam.
… … … … Revision Petitioner/Opposite Party No.1.
Vs
- Sri Dipak Chandra Kar,
Son of Late Makhan Lal Kar,
Resident of Shibnagar, College Road, P.O. Agartala College,
P.S. East Agartala,
District – West Tripura, Pin: 799004.
… … … … Respondent/Complainant.
- Shyam Sundar Roadways,
Represented by Branch Manager located at Santipara,
P.O. East Agartala,
District – West Tripura, Pin: 799001.
… … … … Respondent/Opposite Party No.2.
Present
Hon’ble Mr. Justice U.B. Saha
President,
State Commission
Dr. Chhanda Bhattacharyya,
Member,
State Commission
Mr. Kamalendu Bikash Das,
Member,
State Commission
For the Revision Petitioner: Mr. Mrinal Kanti Majumder, Adv.
For the Respondent No.1: Mr. Rupak Nama, Adv.
For the Respondent No.2: Absent.
Date of Hearing & Delivery of Judgment: 13.03.2020.
J U D G M E N T [O R A L]
U.B. Saha, J,
The instant Revision Petition is filed under Section 17 (i) (b) of the Consumer Protection Act, 1986 against the order dated 01.07.2019 passed by the learned District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No.C.C.25 of 2019 whereby and whereunder the learned District Forum passed order to the effect that the case will proceed ex parte against the opposite party no.1.
- Heard Mr. Mrinal Kanti Majumder, Ld. Counsel appearing on behalf of the petitioner (hereinafter referred to as opposite party no.1) as well as Mr. Rupak Nama, Ld. Counsel appearing for the respondent no.1 (hereinafter referred to as complainant). None appears for the respondent no.2 (hereinafter referred to as opposite party no.2).
- Brief facts needed to be discussed are as follows:-
The complainant filed an application under Section 12 of the Consumer Protection Act, 1986 for granting compensation on account of deliberate negligence and failure of rendering proper contractual service followed by unfair trade practice. It appears from the complaint petition that the complainant is a class-1 contractor by occupation and he is also having business of stone crusher and mixer machines. He has collected quotations from the different manufacturers for purchasing machineries like, jaw crusher machine, hollow drill rod, conveyor belt, air compressor etc. and as the rate quoted by the opposite party no.1 was finally accepted by the complainant, he placed order on 07.03.2018 for delivery of those machineries and also made payment of price amounting to Rs.2,61,500/- including GST and sent the same through RTGS to the Bank Account of the opposite party no.1 on 22.03.2018. After receipt of the consignment, it was found that the opposite party no.1 had supplied the defective non-operative air compressor. Thus, they had observed unfair trade practice due to deficiency of service rendered by the opposite party no.1 beyond the oral contract dated 07.03.2018. Accordingly, the complainant filed a complaint case being No.CC.32 of 2018 which was disposed of for non-prosecution. As there was no provision for restoration of the complaint case, the complainant subsequently filed another complaint case, which was registered as CC.25 of 2019 and accordingly, the learned District Forum issued notices upon the opposite parties, who are the revision petitioner and respondent no.2 herein.
- On 19.06.2019, the learned District Forum allowed time to the opposite party no.1 to file written objection. On 01.07.2019, the opposite party no.1 appeared by way of filing vokalatnama, but the learned District Forum passed an order to the effect that,
“ Learned Advocate for the Complainant and the O.P. No.2 are present.
The O.P. No.2 has prayed for time to file W.O.
Time as prayed for is allowed.
The O.P. No.1 today also does not take any step though notice was duly served to him.
On the previous dated also the O.P. No.1 took no step.
Conduct of the O.P. No.1 shows that the O.P. is not interested to contest the case.
So it is ordered that the case will proceed exparte against the O.P. No.1. To 16/07/2019 for filling W.O. by the O.P. No.2.”
Though the opposite party no.2 did not appear at all, on 26.07.2019, the opposite party no.1 filed an application seeking 15 days time, but the learned District Forum in its order dated 26.07.2019 stated that a petition has been filed on behalf of the opposite party no.2 praying for further time to file written objection, whereas, from the record it appears that the opposite party no.2 did not appear before the learned District Forum at any point of time. On 31.07.2019, the opposite party no.1 filed two petitions one petition is for 15 days time to file written objection and another is challenging the maintainability of the complaint petition, but the learned District Forum passed an order to the effect that “From the case record it reveals that the case has been ordered to be proceed exparte against the O.P. No.1 vide order dated 26/07/2019 as the O.P. No.1 had failed to submit W.O. inspite of availing several opportunities.” Thereafter also, the learned District Forum passed day to day order.
Being aggrieved by the order of the learned District Forum dated 01.07.2019 and subsequent thereto, the opposite party no.1 has filed the present Revision Petition for quashing the ex parte order passed by the learned District Forum as well as for not hearing.
- Mr. Majumder, Ld. Counsel for the petitioner-opposite party no.1, while urging for setting aside the order dated 01.07.2019 and the subsequent orders, would contend that learned District Forum failed to apply its mind so far the steps taken by the opposite party no.1. More so, when the opposite party no.2 did not appear at all, the learned District Forum recorded their appearance instead of appearance of opposite party no.1. He further submits that when the learned District Forum vide its order dated 31.07.2019 did not allow the petition filed by the opposite party no.1 on the ground that the case has been ordered to be proceeded ex parte against the opposite party no.1, but fixed the case on 14.08.2019 for hearing of both sides on the application filed by the opposite party no.1 challenging the maintainability of the complaint petition which by itself is an error.
- On the other hand, Mr. Nama, Ld. Counsel while supporting the order of the learned District Forum fairly submits that the opposite party no.2 did not appear before the learned District Forum at any point of time though the learned District Forum recorded its appearance.
- We have gone through all the orders passed by the learned District Forum including the order dated 01.07.2019, 26.07.2019, 31.07.2019 and the petitions filed by the opposite party no.1. According to us, the learned District Forum failed to exercise its jurisdiction vested on it and not only that, there was no application of mind while passing the order. As a result, though the opposite party no.1 was present before the learned District Forum on 01.07.2019, but the learned District Forum proceeded ex parte against the said opposite party. More so, when the opposite party no.2 did not take any step, but the said opposite party was allowed time to file written objection and the same is also an error. Hence, all the orders from 01.07.2019 to 27.11.2019 are hereby set aside so far the opposite party no.1 is concerned and the matter is remanded to the learned District Forum to hear the opposite party no.1 on his application challenging the question of maintainability of the complaint petition afresh as well as the application praying for time to file written objection also providing opportunity to the complainant. Before taking up of the matter, the learned District Forum shall issue notices upon the complainant as well as the opposite party no.1 so that they can appear and place their cases before the learned District Forum.
With the above directions, the instant Revision Petition is allowed. No order as to costs.
Send down the records to the learned District Forum, West Tripura, Agartala.
