Director Forest Research Institute vs SUNSHINE ENTERPRISES

THE prayer made in this miscellaneous petition by opposite party No. 1 in the complaint case is for recalling the Order dated 18.4.96 passed by this Commission allowing the complaint filed by Director, Forest Research Institute, Dehradun, against opposite party No. 1 relating to the supply of defective machinery to the complainant. This Commission directed the first opposite party to pay a sum of Rs. 8,33,806/ - as representing the amount paid by the complainant to the opposite party No. 1 by way of cost of the machinery which had been found to be defective besides directing payment of interest at the rate of 18% per annum from 2nd April, 1992 the date on which the complainant had paid the amount besides costs of the petition fixed at Rs.5,000/ -. The defective equipment was directed to be returned by the complainant to the 1st opposite party if and when the first opposite party made arrangement to take over the same from the complainant after remitting of the amounts directed to be paid to the complainant under the said Order.

THE grounds alleged for recalling the Order dated 18.4.96 are that the complaint case was posted before this Commission on 10.4.96 and the opposite party No. 1 sought adjournment on 3.4.96 since the partner who was in -charge of the firm''s business was suffering from typhoid and medically advised one month''s rest, that the non -appearance of the first opposite party is not intentional or deliberate and the same was on genuine and bona fide reason, and that the National Commission wrongly decided to proceed ex -parte against the opposite party No. 1 and passed an order in favour the complainant. The copy of the Order dated 18.4.96 is stated to have been received on 23.5.96 and the application for recalling the order was filed on 9th July, 1996. The complaint by Director, Forest Research Institute related to the supply of faulty Automatic Weather Station by the first opposite party. The equipment was supplied in the year 1992 and a sum of Rs.8,33,806/ - was paid in full and final settlement of the payment of various invoices/bills of the opposite parties. The case set up in the complaint was that the working of the system was demonstrated on 26th March, 1992 but this system, according to the complainant, developed various problems immediately there - after from April, 1992, that the computer system installed was not working with the result that it was not possible to get the recorded output for the module, that the printer which had been fixed with the tower had stopped functioning, that it was neither giving any reading nor the printed output, that various other defects occurred in the functioning of the system and that though some replacement of the parts was made by the opposite party No. 1 but the Weather Station was not working free of faults which were not rectified despite complaints. Ultimately the complainant filed the complaint praying for directions to the opposite parties to pay back Rs. 8,33,806/ - the amount paid towards the cost of the equipment, to pay 20% interest and to pay compensation to the Institute for jeopardising its research work at the rate of Rs. 50,000/ - per month from the date of purchase to date. Notice of the filing of the complaint was issued and served on the opposite parties. Reply on behalf of the first opposite party was filed on 21st May, 1995. Reply on behalf of the second opposite party was filed on 8th April, 1995. The case was listed for hearing on 24th January, 1996. It is apposite to reproduce the order passed by this Commission on that date: "A telegram has been received this morning by the Registry from the Advocate for the 1st respondent in this case which reads as follows: ''Regret Sunshine Enterprises O.P. No. 65 of 1994 due to illness of family member. Pray short adjournment case posted on 24th January, 1996. Request reposting after 3 weeks written request follows.'' We are unable to regard the reasons stated in the telegram as valid or adequate for granting the adjournment. However, since after going through the complaint petition we are prima facie of the view that the 1st opposite party will have to be heard before a conclusion is reached in the case, we do not wish to decide the case ex -parte against the opposite party. Hence, for the purpose of giving the 1st opposite party a last opportunity of being heard in the case we adjourn the case to Monday, the 11th March, 1996 making it clear that no further adjournment will be granted. Intimate the 1st opposite party about the revised date fixed for hearing of this case."

Notices were issued to the opposite parties that the case would be heard on 11th of March, 1996 but as there was to be no sitting on that date, a revised notice was issued intimating to the parties that the case would be heard on 10th of April, 1996. When this case came up for hearing on 10th April, 1996 there was no appearance on behalf of the first opposite party. No request for adjournment had been received on behalf of the 1st opposite party. This Commission noticed the order passed on 24th January, 1996 and as there was no appearance by or on behalf of the 1st opposite party, this Commission was left with no option but to proceed ex -parte against the 1st opposite party. The complainant was given an opportunity to file his proof affidavit within one week and the petition was posted for final disposal on 18th April, 1986. On 18th April, 1996 after considering the material including the affidavit filed on record the complaint was allowed as noticed earlier.

IN the application which is now filed by the first opposite party for recalling the order dated 18th April, 1996, the only ground that is stated is that: "that the case was posted on 10.4.96 and the opposite party No. 1 sought adjournment on 3.4.96 since the partner who is in -charge of the firm''s business was suffering from typhoid and medically advised one month''s rest". It is not disclosed in the application or in the affidavit in support thereof as to how the adjournment was sought on 3.4.96. There is neither any application of the first opposite party dated 3rd of April, 1996 on the record of this Commission nor even any telegraphic intimation dated 3rd April, 1996. As there was no appearance by or on behalf of the 1st opposite party on 10.4.96, the only course open to this Commission was to proceed ex -parte. We did not decide the complaint case on 10.4.94 but adjourned it to 18.4.96. The first opposite party has been grossly negligent in not finding out as to what transpired on 10.4.96 either themselves, or through their Counsel on record. They took no steps to put in appearance on 10.4.96. This Commission had earlier granted on 24.1.96 last opportunity to the 1st opposite party. The Counsel for the first opposite party admitted that the first opposite party was duly served of the notice dated 8th of March, 1996, fixed the hearing of the case on 10th of April, 1996. As the first opposite party failed to appear despite service of the notice and the last opportunity having been given in the order dated 24.1.96, there is absolutely no ground for recalling the order dated 18.4.96. Even otherwise, the Consumer Protection Act, 1986, has not given any power to this Commission for review of its orders. The application is dismissed without any order as to costs. Application dismissed.