ANVARUL HAK vs AVDESH KUMAR

SRI Avadesh Kumar, respondent went to the District Forum, Sidharthanagar through Complaint Case No. 107/1994. The allegations were that the appellant/opposite party SRI Anvarul Hak was paid Rs. 15,000/- as advance for supplying A-1 bricks. In spite of demand, request and subsequent notice neither the amount was refunded nor the bricks were supplied, therefore, he claimed in the alternative supply of bricks or refund of the advance amount with interest. The said claim has been decreed and one of the reliefs i.e., refund of Rs. 15,000/- with 12% interest with effect from 3.9.1991 was decreed along with Rs. 1,000/- as special compensation.

MR. R.K. Gupta, learned Counsel for the appellant and MR. Anil Kumar Chaubey, learned Counsel for the complainant have been heard at length and entire record has been thoroughly scrutinized. The contentions raised by Mr. Gupta and the replies advanced by Mr. Chaubey shall be referred to instantly.

The first argument of Mr. Gupta was that there was no deficiency in service inasmuch as at best the contractual obligation was involved and its non-fulfilment could not permit a complaint to be entertained and decided under the Consumer Forum. Mr. Chaubey replies that there cannot be a better proof of deficiency in service and unfair trade practice.

IT may be pointed out that a clear finding has been recorded by the learned District Forum believing the complainant''s version about the payment of advance money for supply of bricks. The complainant filed his affidavit and also the receipt for the sum of Rs. 15,000/- indicating balance of Rs. 3,000/- which was payable on supply of the bricks. He also relied upon the noting on the letter-head of Sana Bricks Field on 30.9.1991 mentioning therein supply of 30,000/- bricks (A1) to Sri Avadesh Kumar, complainant. What is astounding is that the appellant Sri Anvarul Hak filed his written statement but did not file his affidavit. He did not file anyone else''s affidavit and no document was filed. IT was, however, good on the apart of the District Forum to have given opportunity as and when prayed on behalf of Sri Anvarul Hak so that he could file his affidavit and evidence if any but the efforts of the District Forum failed and no evidence was forthwith coming on behalf of Sri Hak. In this view of the matter, it is a case where finding can safely be recorded that the appellant did not controvert the allegations of the complainant by filing affidavit or evidence of any type whatsoever. A legal objection raised by Mr. Gupta is that the judgment was signed by the President on 16.12.1997 but the column meant for the Lady Member was not signed on that date but she proceeded to sign the judgment on 16.10.1998 observing that the record came to her only on that date.

ACCORDING to Mr. Gupta this is violation of the provisions contained in the Section 14A of COPRA. Mr. Chaubey has refuted the said argument. The certified copy filed along with the memo of appeal indicates that an application was moved only on 9.11.1998 and the certified copy was delivered on 19.11.1998. The Lady Member has signed after observing that the record was received by her on 16.10.1998. The appeal has been filed calculating the limitation with effect from the date 16.10.1998. There has been full compliance of the law. A Member concurring with the President''s view though signed on a subsequent date indicates pronouncement of judgment on the day the Member signed agreeing with the President''s view. There is no error in the procedure either. The last argument of Mr. Gupta was that rate of interest is very high though it was objected seriously by Mr. Chaubey. It was further pointed out that special cost of Rs. 1,000/- was not payable under any circumstances. Mr. Chaubey, however, says that cost should have been allowed because the decree was passed only as against the appellant who was opposite party No. 1. There is force in the argument of Mr. Chaubey that cost should have been allowed but simultaneously it is held that the sum of Rs. 1,000/- should not have been allowed as special compensation.

IN view of what has been held above, the appeal succeeds in part. While the order of the District Forum for refund of Rs. 15,000/- is maintained but the interest is reduced from 12% to 9% which will be payable with effect from 3.9.1991 till the date of payment which should be within two months from today. A sum of Rs. 1,000/- which has been directed to be paid as special compensation shall be payable as cost for the lower Court and this Court.

LET copy of this order be made available to the parties as per rules. Appeal partly allowed.