BAJRANG BALI BRICK KILN COMPANY vs SATYAVEER ARYA

JUSTICE M.R. Agnihotri, President-In this appeal filed by M/s. Bajrang Bali Brick Kiln Company, Ladwa, order of the learned District Forum, Hisar dated 17th of October, 1994, has been challenged mainly on the ground that the complaint filed by the respondent-Satyaveer Arya, Advocate, Hisar has been allowed without first ensuring the service of the complaint on opposite party No. 2 Mr. Suresh Kumar and without affording to the appellants-opposite party an adequate opportunity of producing their documentary evidence on record, as also without deciding the questions regarding the maintainability of the complaint as the dispute between the parties being a complicated one deserved to be decided only by a Civil Court.

BRIEFLY stated, respondent-Satyaveer Arya, an Advocate of Hisar approached Mr. Makhan Lai and Mr. Suresh Kumar-opposite parties No. 1 & 2 for the supply of bricks required for the construction of certain buildings. For that purpose, he made advance payment on 16th of December, 1991 and entered into an agreement with the opposite parties. According to the complainant, opposite parties No. 1 & 2 Makhan Lai and Suresh Kumar, were the partners of M/s. Bajrang Bali Brick Kiln and were responsible for the delivery of 7,00,000 bricks to him, but only 40,000 bricks were supplied by them by 16th of December, 1992 and that too of sub-standard quality. Aggrieved against this non-performance of the contract, the complainant approached the District Forum for the refund of the amount of Rs. 4,62,000/- with interest and costs etc. Notices were issued by District Forum to the opposite parites Nos. 1 and 2 but the registered letter issued to Mr. Suresh Kumar-opposite party No. 2 was received back by the Registry of the District Forum as undelivered, with the report that he was not available at the said address. Without taking any further step to effect service on the unserved opposite party-Suresh Kumar, learned District Forum proceeded ex-parte against him, as would be evident from para 3 of the impugned order dated 17th of October, 1994 itself, as reproduced below :- "Notices were issued to both the respondents by way of registered letters and the said letters issued to M. Suresh Kumar- respondent No. 2 has been received back undelivered with the report that he is not available at the said address. He has not as yet moved into the matter though according to complainant as well as Mr. Makhan Lal respondent No. 1 he is a partner of firm B.B. Bricks Kiln Company and as such proceeded ex-parte."

So far as the appellant Makhan Lai opposite party No. 1 is concerned, he filed his reply raising number of preliminary objections as well as by contesting the complaint on merits. In nutshell, it was pleaded that the complainant was not a consumer and he had no locus-standi or legal right to maintain the complaint before the District Forum as the alleged dispute was in the nature of commercial transaction arising out of the breach of contract. It was further pleaded that the writing dated 16th of December, 1991 was a forged document and was never executed by the opposite party nor was the amount of Rs. 4,90,000/- as alleged by the complainant ever received by him. Proceeding further it was also pleaded, that a false and frivolous complaint under Sections 467, 468 and 402 of the Indian Penal Code had also been filed by the complainant with the same cause of action and subject matter of litigation. It was also pleaded that the relations of the complainant with the opposite party being very friendly and cordial in the past, it was a breach of confidence on the part of the complainant, who had taken away the entire documents i.e. bill books and ledger etc., which werestill in his possession and he was mis-using the same. Finally, it was also pleaded that the District Forum had no jurisdiction to entertain the complaint since the dispute did not fall within the definition of "consumer" and the matter being complicated one involved serious questions of law and fact, which could be properly adjudicated only by the Civil Court. Learned District Forum after considering the matter allowed the complaint by coming to the conclusion mat against the supply of 7,00,000 bricks for a consideration of Rs. 4,90,000/- only 40,000 bricks had been supplied and as such after deducting its price amounting to Rs. 28,000/-, the opposite parties were directed to refund the amount of Rs. 4,62,000/-.

Challenging the aforesaid order of the learned District Forum, learned Counsel for the appellant has vehemently contended before us, that the impugned order deserves to be set-aside on the short ground that it has been passed ex- parte against opposite party No. 2 Mr. Suresh Kumar, partner of M/s. Bajrang Bali Brick Kiln Company even though he was never served by the District Forum. According to the learned Counsel had Suresh Kumar been served, he would have filed the written statement and contested the complaint by proving that amount of Rs. 4,90,000/- was never paid by the complainant to the opposite party as there was no documentary evidence with regard to the execution or withdrawal of such amount from any bank etc. On the other hand, learned Counsel for the respondent Mr. Satyaveer Arya, Advocate has vigorously pleaded mat even if Suresh Kumar was not served as recorded by the learned District Forum in para 3 of the impugned order itself, yet Makhan Lal-opposite party No. 1 was there on the record to contest the complaint.

AFTER hearing the learned Counsel for the parties, we are of the considered view that the learned District Forum has committed a procedural irregularity in adjudicating the complaint without first ensuring the service of the complaint on Suresh Kumar-opposite party No. 2, who was admittedly a partner of M/s. Bajrang Bali Brick Kiln Company. Without going into the merits of the case and commenting upon the maintainability or otherwise of the complaint, we allow the appeal and set-aside the order dated 17th of October, 1994 of the learned District Forum, Hisar. The case is accordingly remanded back to the learned District Forum for a fresh decision in accordance with law after ensuring service on the parties and affording them opportunity for filing their written statement and producing their evidence. In the circumstances of the case, there shall be no order as to costs. Appeal allowed.