CONTROL ZEE (P) LTD. vs P.ABDUL SAMAD

THE opposite parties 1 to 3 in O.P. No. 275/94 on the file of the Consumer Disputes Redressal Forum, Kozhikode are the appellants.

THE complainant sought for a direction to opposite parties 1 to 3 to refund Rs. 87,800/- through with interest and also for damages of Rs. 50,000/-. THE allegation was the opposite parties 1 to 3 received Rs. 63,800/- for supply of a computer, the first opposite party received Rs. 24,500/- for supplying laser printer, and the opposite parties 1 to 3 agreed to supply the same as per the specification in Exbts. A1 and A3 series quotation. THE grievance of the complainant was that the computer supplied was not in accordance with the specification as agreed. Consequently the complainant could not functioning the same, therefore, the complainant wanted return of the amount received by the opposite parties. Opposite parties 1 to 3 in their version among other contentions sought to maintain, that the opposite party No. 4 placed an order for a computer, a laser printer and a UPS with them, that the opposite party No. 1 is only a booking agency of M/s. Sterling Computers Pvt. Ltd., Madras who are the manufacturers of the computers and UPS, that they forwarded the order to the M/s. Sterling Computers Pvt. Ltd. and that for the alleged defect the said M/s. Sterling Computers Pvt. Ltd., Madras, being the manufacturer of the computer and UPS is a necessary party to proceeding and the complaint is bad for non-joinder or necessary parties. THEy also raised other contentions also. The 4th opposite party did not file any version. The complaint was once disposed of by the District Forum making a direction to refund the purchase price of the equipment mentioned above, against which the opposite parties 1 and 3 preferred Appeal No. 1320/95. My learned predecessor allowed the appeal on condition of payment of costs and also deposit of 1/3 of the amount directed to be returned by the District Forum. This Commission observed that it would be open to the complainant or opposite parties 1 and 3 to move the District Forum for getting the manufacturer impleaded if they are so advised. After remand on opposite parties 1 and 3 complying the condition in the remand order the matter was restored and the District Forum examined the complainant as P.W. 1, marked Exbts. A1 to A4 and then made the direction to the first opposite party to pay a sum of Rs. 74,500/- to the complainant with interest at 15% and Rs. 3,000/- towards costs. The said direction is again challenged by the opposite parties 1 to 3 in this appeal.

What is urged by the learned Counsel for the appellant is, though the second opposite party moved a petition to implead two persons of whom the second one was the said M/s. Sterling Computers Pvt. Ltd., Madras, the District Forum did not implead the Sterling Computers instead the District Forum proceeded to deal with the matter as if the Sterling Computers need not be in the party array. It is also urged, in the nature of the context expert evidence was necessary but the same was not secured. The learned Counsel submitted that the very records produced on behalf of the complainant itself would show, that the 1st opposite party is only a booking agent of the M/s. Sterling Computers Pvt. Ltd. and in such circumstance the Sterling Computer was a necessary party that was why in the remand by this Commission gave liberty to the complainant as well as opposite parties 1 and 2 to get the manufacturer impleaded. The District Forum since neither has posted the matter for taking steps regarding non-joinder not has considered the application for impleading has travelled beyond the scope of the remand and, therefore, according to the learned Counsel that by itself would vitiate the order of the District Forum. On the other hand the learned Counsel for the respondent/complainant sought to support the order of the District Forum maintaining since the contract was between the complainant and the opposite parties the District Forum was right in proceeding with matter and making a direction as it did.

PARAGRAPH 5 of the version of the opposite party Nos. 1 to 3 has a specific contention that the complaint is bad for non-joinder of necessary parties, and as per the said contention the defect of non-joinder is stated to be on account of non-impleadment of M/s. Sterling Computers Pvt. Ltd. In this connection Exbt. A2 has relevance which states that the first opposite party acknowledges receipt of Rs. 15,828/- drawn in favour of their principal Sterling Computers Pvt. Ltd., Madras. The said document itself would go to show that the first opposite party was only acting on behalf of his principal Sterling Computers Pvt. Ltd., Madras and that being the position, according to the learned Counsel for the appellants the Sterling Computers Pvt. Ltd. was a necessary party in resolving the dispute. In the context of para 5 of the version of the opposite parties 1 to 3 and also Exbt. A3 to which advertance has already been made the necessity of impleadment of M/s. Sterling Computers Pvt. Ltd. should have been considered. When a party has taken a defect of non-joinder of necessary parties normally there must be a posting for taking steps to cure the defect of non-joinder. Apart from the same a petition is seen moved by the first opposite party consistent with the liberty given by the order of remand. The grievance of the appellant that inspite of the aforesaid circumstances failure to consider the said application in the aforesaid backdrop would vitiate the decision is sound, in the context of para 5 of the version and the direction in the remand. It was obligatory for the District Forum to have considered the impleading petition before proceeding to adjudicate upon the complaint. No mention is seen made in the impugned order as to the order of remand in Appeal No. 1320/95. When such is the situation we have no other option but to set aside the impugned order and remit the matter before the District Forum.

IN the result the appeal is allowed, the impugned order is set aside and the matter is remitted to the District Forum which shall restore the complaint to file and consider the petition moved by the second opposite party dated 18th March, 1998 and thereafter proceed to dispose of the matter afresh in accordance with law and what is stated in this order. The appellant/opposite party Nos. 1 to 3 and the complainant shall appear before the District Forum on 20.9.1999. On receipt of the order the District Forum shall is sue notice to the 4th opposite party who has not entered appearance in this appeal. Alongwith the copy of this order the office will send records of the District Forum expeditiously to the District Forum. Appeal allowed.