KAILASH THAKUR vs M/S. BHIRACHI COMPUTERS

Heard.

Petitioner/Complainant has filed a consumer complaint before the District Forum stating that for the purpose of earning his livelihood he had applied to the District Industries Centre under the Prime Minister''s Employment Scheme for opening an institute of computer education. Thereafter on approval of his application, Dena Bank has sanctioned a loan of Rs.1 lac. To start his institute, petitioner contacted Respondent/Opposite Party and got a quotation on 15.3.2005 for about Rs.79,500/- for supply of computer and other items. Thereafter, petitioner made request to the bank for issuing a cheque for a sum of Rs.79,500/- in the name of respondent and said cheque was deposited in the bank account of the respondent. However, respondent did not give him the articles as asked for. Thus, alleging deficiency on the part of the respondent, consumer complaint was filed before the District Forum.

Respondent did not appear before the District Forum and as such was proceeded exparte.

District Forum vide order dated 01.10.2007, allowed the complaint and directed the respondent to pay a sum of Rs.79,500/- along with interest @ 11% P.A. from the date of receipt till payment. Respondent was also directed to pay to the petitioner Rs.50,000/- towards mental torture and was also burdened with litigation cost of Rs.1,000/-.

Respondent preferred an appeal before the State Commission against the order of the District Forum.

The State Commission vide impugned order dated 19.08.2011 allowed the appeal and set aside the order passed by the District Forum.

Now petitioner has filed the present revision petition before this Commission.

Notice of this revision petition was issued to the respondent but respondent could not be served. Later on, petitioner filed an application for substituted service and as such respondent was served by publication but did not appear inspite of publication. Accordingly, on 20.11.2014 respondent was proceeded exparte by this Commission.

It is submitted by learned counsel for the petitioner that short controversy in this case is as to whether petitioner has received the payment in question from the respondent or not.

It is pointed out by learned counsel for the petitioner, that before the State Commission, respondent has placed on record photo copy of the Bill, Annexure-R/3 for the first time alleging that he has made the payment in question to the petitioner. It is pointed out by learned counsel for the petitioner that the copy of this bill was not filed before the District Forum. Further, it is submitted that on 29.4.2011, as per the proceedings of the State Commission, following order was passed by it; " 29.04.2011-The appellant is directed to produce the original bill book containing copy of the bill Annexure R/3 filed by the appellant. List on 24/6/2011 ."

Thus, State Commission without taking into consideration the original bill book decided the mater which is patently illegal. The State Commission ought to have complied with its own order dated 29.4.2011. Under these circumstances, the impugned order is liable to be set aside.

As apparent from the original record of the State Commission, on 29.4.2011, the State Commission has directed the respondent-herein to produce the original bill book containing copy of the Bill Annexure-R/3 filed by him. However, without getting the original bill book on record, the State Commission proceeded with the matter. It is thus manifestly clear that the State Commission has committed jurisdictional error in deciding the appeal without getting the original bill book as directed by it. Under these circumstances, the impugned order cannot be sustained and the same is set aside. The matter is remanded back to the State Commission to decide the

appeal filed by the respondent, afresh after getting the original bill book containing the copy of the Bill Annexure-R/3 filed by the respondent and thereafter decide the matter in accordance with provisions of law after hearing both the parties.

The State Commission shall make an endeavour to dispose of the appeal preferably, within one year from the date of receipt of copy of this order.

Petitioner is directed to appear before the State Commission on 7 September, 2015. th

Dasti.