ADVAITH MARKETING PRIVATE LIMITED vs J.USHA

SINCE common questions of law and facts are involved in these two appeals, these appeals are disposed of by a common order.

OPPOSITE Party (for short "O.P.") No. 1 in the complaints filed before the District Forum has filed these two appeals challenging the common order of the District Forum allowing the complaints of the complainants. The parties in these appeals are referred as they were arrayed before the District Forum. The facts in these cases are as follows: The complainants are the employees of Bharat Electronics Limited, Bangalore, and they are the members of the Bharat Electronics Co-operative Society Limited (hereinafter referred to as the "Society"). The Society had formulated a Scheme under which the members of the Society may purchase two wheelers by borrowing money from the Bank of Maharashtra, Malleshwaram Branch, Bangalore (for short the "Bank"), since the Bank agreed to sanction loan to the members of the society.

O.P. No. 1 is the Authorized Dealer of Kinetic Honda two wheelers. O.P. No. 2 is the agent of O.P. No. 1 for supply of two-wheeler vehicles of different companies to the members of the Society. The Society for and on behalf of its members placed orders with O.P. No. 2, which is the agent of O.P. No. 1 for supply of 388 two-wheeler vehicles. Pursuant to the said order, 328 vehicles were supplied by O.P. No. 2 to the members of the Society. Out of 328 vehicles, 60 vehicles were supplied by O.P. No. 1 to the members of the Society through O.P. No. 1 Out of 60 vehicles O.P. No. 1 has issued Sales Certificates in respect of 58 vehicles and in respect of the remaining two vehicles, O.P. No. 1 has not issued the Sales Certificates, since the Managing Partner of O.P. No. 2 one Mr. Ravi died. The complainants are the unfortunate persons who could not get the Sales Certificates issued by O.P. No. 1 in order to get the vehicles registered in their favour, even though the two-wheeler vehicles were delivered to them. The sale consideration in respect of the vehicles supplied to the members of the Society has been paid by the Bank to O.P. No. 2. The complainants have been re-paying the loan borrowed by them from the Bank in instalments every month.

THE complainants have made several demands to get the Sales Certificate issued by O.P. No. 1 to get the vehicles registered in their favour. But O.P. No. 1 did not take steps to issue the Sales Certificate on one ground or the other. This has made the complainants to file the complaints before the District Forum alleging "Deficiency in Service". On the complaints filed by the complainants, Notices were served on the O.Ps. in complaint No. 310/2003. Pursuant to the said Notice in the said case, O.P. No. 1 had appeared through its Counsel, whereas O.P. No. 2 did not appear and, therefore, it was placed ex parte. The complainant in the said complaint filed affidavit by way of evidence and produced 30 documents, whereas O.P. No. 1/appellant has not produced any documents before the District Forum except filing the affidavit. On the Notice issued by the District Forum in complaint No. 413/2003, O.P. Nos. 1 and 2 did not appear, though they were served, and hence they were placed ex parte.

THE District Forum on the assessment of evidence before it allowed both the complaints and directed the appellant to issue letter confirming sale of two wheelers, i.e., Kinetic Honda two wheelers, to the complainants with cost of Rs. 300 in each case. This order is under challenge by O.P. No. 1 in these two appeals. The learned Counsel appearing for the appellant contended that since there is no privity of contract between the complainants and the appellant, the District Forum was not right in allowing the complaint of the complainants. The appellant has not disputed the fact that O.P. No. 2 is its agent. It is also not disputed that the appellant has supplied 60 Kinetic Honda ZX vehicles to the members of the Society which includes the complainants through O.P. No. 2. It is also not the case of the appellant that the Bank has not paid the sale consideration to O.P. No. 2 for and on behalf of the members of the Society. The only defence taken by the appellant is that there is no privity of contract between the complainants and the appellant. When the appellant has not disputed that O.P. No. 2 is its Agent and through which the appellant has supplied 60 Kinetic Honda ZX two-wheeler vehicles to the members of the Society, it is not open for the appellant to say that there is no privity of contract between the complainants and the appellant. When the Bank has paid the full consideration in respect of the 60 vehicles to O.P. No. 2, which is the agent of the appellant, the payment made to the agent is deemed to be the payment made to the appellant. Further, the appellant has issued Sales Certificates in respect of 58 vehicles, whereas in respect of the two vehicles, which were delivered to the complainants, the appellant has denied the issue of Sales Certificates. The reason for not issuing the Sales Certificates only in respect of the complainants is not known. Further, the appellant also not has put forth any acceptable explanation for not issuing the Sales Certificates in favour of the complainants.

THE complainants have issued a Legal Notice to the appellant. In the reply notice sent by the appellant, the complainants have been called upon to make the entire payment within seven days from the date of receipt of the Reply Notice. If at all if there is no privity of contract between the complainants and the appellant, there is no reason for the appellant to issue reply notice to the complainants calling upon them to pay the entire payment towards the sale consideration of the two wheelers. In all probability, the Agent who received the sale consideration might have not paid the entire sale consideration to the appellant. If there are any such dues from O.P. No. 2 to the appellant, it is open for the appellant to recover the same from O.P. No. 2 in the manner known to law. But O.P. No. 2 having received the full consideraion as an agent of the appellant, the appellant cannot deny the issuance of Sales Certificate in favour of the complainants. In order to show that the appellant is not justified in taking the stand that there is no privity of contract, it is useful to refer to the Warranty Registration Card and Warranty Card which are produced as Document Nos. 1 and 2 before the District Forum. Warranty Registration Card and the Warranty Card have been signed by the appellant. If there is no privity of contract, there was no need for the appellant to issue the Warranty Registration Card and Warranty Card in favour of the complainants. THE complainants have also produced documents to show that the entire sale consideration has been paid in respect of the two vehicles in question. THE vehicles were also got insured with the New India Assurance Company Limited. THErefore, we are of the considered view that the appellant is not justified in not issuing the Sales Certificate in respect of the vehicles in question.

IN Complaint No. 310/2003, the appellant has filed the affidavit by way of evidence but has not produced any documents to establish that O.P. No. 2 is not its agent. IN complaint No. 413/2003, though the appellant is served with the notice it did not appear before the District Forum and it was placed ex parte. IN the absence of any such denial of the averments made in the said complaint, it is not open for the appellant to challenge the Order impugned in these appeals. In the instant case, non issuance of Sales Certificate virtually has prevented the complainants to get the vehicles registered in the office of the Regional Transport Officer under the provisions of the Motor Vehicles Act. The complainants are not in a position to use the vehicles, as the vehicles were not registered in the office of the Regional Transport Officer. By taking all these facts into consideration the District Forum ought to have awarded compensation in favour of the complainants. But since the complainants have not filed any appeals as against the impugned order claiming compensation, we do not propose to consider whether the complainants are entitled to compensation or not.

In the result, we pass the following order : The appeals are dismissed with cost of Rs. 2,000 payable by the appellant to each of the complainants. Appeals dismissed.