A.M. MATHEW vs M.PRADEEP KUMAR

THE second opposite party in O.P. No. 349/96 on the file of the Consumer Disputes Redressal Forum, Kollam is the appellant.

THE complainant alleged before the District Forum that the complainant booked the Drama of the first opposite party ''Soumyasagaram'' for staging the same on 14.3.1993 at 11.30 p.m. in connection with the festival of the temple. THE complainant and the second opposite party on behalf of the first opposite party entered into Exbt. A1 agreement for the said purpose and the second opposite party received an amount of Rs. 200/- as advance. THE grievance of the complainant is, as per the agreement the first opposite party did not perform the Drama on 14.3.1995. THE complainant alleged, that would constitute deficiency of service and, therefore, wanted relief. THE complainant produced Exbt. A1 and gave evidence as P.W. 1. THE second opposite party gave evidence as R.W. 1. On a consideration of the said evidence the District Forum found deficiency of service and directed the second opposite party to return the advance amount with compensation of Rs. 3,000/- with costs Rs. 250/-. The said direction is challenged by the second opposite party in this appeal. The first respondent/complainant and the second respondent/the first opposite party though were served from this appeal they remain absent. Thereupon the appellant''s learned Counsel is heard.

It is argued by the learned Counsel that a direction as the impugned one could not have been rendered by the District Forum making the agent liable for the amount in view of Section 230 of the Indian Contract Act. He made reliance on the decision of the Supreme Court in Marine Container Service South Pvt. Ltd. v. Go Go Garments, AIR 1999 Supreme Court 80, in support of the said argument.

THE impugned order shows, that the complainant ought relief on the basis of Exbt. A1 agreement. THE photo copy of the agreement was placed before us by the learned Counsel for the appellant. It is not disputed by the learned Counsel, that the agreement was signed by the complainant on the one hand and the second opposite party on behalf of the first opposite party and signed accordingly. Section 230 of the Indian Contract Act states, that in the absence of any contract to that effect an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them unless either the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad or where the agent does not disclose the name of his principal or where the principal, though disclosed, cannot be sued. With due regard to the scope of said section, since the contract in question does not fall in any one of the aforesaid clauses, in the facts and circumstance of this case, the agent the second opposite party/appellant could not have been made personally liable for the breach of contract. The Supreme Court has held in the decision referred to early, AIR 1999 Supreme Court 80, that in a proceeding under the Consumer Protection Act, 1986 the agent is entitled to the protection under Section 230 of the Indian Contract Act. In view of the above position since admittedly the second opposite party entered into an agreement as an agent on behalf of the first opposite party, and in the context of the nature of the agreement entered into as Exht. A1, the second opposite party cannot be held to be personally liable. Therefore, the direction made against the second opposite party has to be vacated. In that view the appeal has to be allowed.

IN the result, the appeal is allowed, but in the circumstance there will be no order as to costs. Appeal allowed.