MANAGER, ASHOK PIPE UDHYOG vs SALOOK RAM

M/s. Ashok Pipe Udhyog appeal against the order of the District Forum, Hind allowing the complaint and directing the payment of Rs. 6000/- to the respondent which was alleged to have been withheld.

MR. S.D. Bansal the learned Counsel for the appellant has first placed in the fore-front his stand that the respondent did not come within the definition of a consumer and in any case no defect in the goods supplied was even alleged to make out a cause of action within the consumer jurisdiction. For the limited purpose of adjudicating on the aforesaid submission it is unnecessary to delve into the facts and merits too deeply. It suffices to mention that on the respondent''s own showing he had merely entered into an agreement with the appellants to purchase an Eicher tractor from them. The somewhat vague allegation was that he was orally assured by the appellants to assist him in getting a loan sanctioned from a bank. Further the curious allegation in the complaint was that the appellants did deliver over a tractor apparently of value of Rs. two lacs to him on mere payment of Rs. 24,000/-. Accordingly he paid the said amount without obtaining any receipt whatsoever or any entry in the books of accounts of the appellants. Further allegation was that after about 1 months the appellants informed him that his loan from the bank could not be sanctioned and so the tractor was returned by the complainant to the appellants, who however paid a sum of Rs. 18,000/- and orally promised to return the balance amount of Rs. 6,000/- only, which however was not done. On these allegations the complaint was filed.

On notice being issued the appellants put in a preliminary written statement categorically taking the stand that the respondent did not come within the definition of a consumer and claimed that the said issue be decided first before any averments by way of reply on merits are put in by the appellants.

THE District Forum somewhat summarily took the view that the respondent had paid Rs. 24,000/- as part payment of the alleged sale price of the Either tractor that therefore became a consumer qua the appellants. Somewhat curiously without affording any opportunity to the appellants for defending the complaint on merits or allowing them to lead any evidence in defense the District Forum concluded on the mere basis of the affidavit of the complainant without further documentary proof that Rs. 24,000/- in fact had been paid originally and Rs. 18,000/- had been repaid and the balance of Rs. 6,000/- had been withheld. Relief was consequently granted in the terms noticed at the very outset. There is patent merit in the stand taken of behalf of the appellants that even on the respondent''s own pleadings he would not come within the definition of a consumer stricto-sensu and in any case no cause of action in the consumer jurisdiction had been made out. This is apart from the patent fact on the record that the appellants were not given the least opportunity of defending the case on the merits and the Judgment under appeal can not be sustained on that short ground as well.

WHAT first deserves highlighting is the fact that the respondent did not in the least either plead or press he that had hired any services extended out by the appellants. The firm case sought to be laid was with regard to the alleged agreement to sell the goods and the withholding part of an amount alleged to have been paid without any receipt or documentary evidence. Even at the appellate stage Mr. Rajesh Choudhary, learned Counsel for the respondent did not in any way suggest that the present pleadings could even remotely bring the matter within the parameters of hiring of services. Once the aforesaid conclusion has been arrived at it would seem somewhat plain that the respondent would neither come within the definition of a consumer nor did he even allege any defect in the goods, for which he could possibly claim relief in the consumer'' jurisdiction. Even accepting the pleadings of the respondent it would appear that at best there was a bailment of the tractor on the payment of Rs. 24,000/- which was allegedly contingent on a bank loan to be sanctioned in favour of the respondent. It is common ground that no bank loan was in fact sanctioned and no sale of a particular tractor which transferred the property therein from the appellants to the respondent ever took place at all. In fact it had to be conceded on behalf of the respondent that no transfer of title of a tractor in favour of the respondent ever took place nor there was any registration of the vehicle in his name which under the Motor Vehicles Act is the only and conclusive proof of the sale or ownership of a vehicle. Admittedly there is not a title of documentary evidence either with regard to the payment of Rs. 24,000/- nor with regard to the alleged repayment of Rs. 18,000 / - and the remaining balance of Rs. 6,000/-. In this context it seems to inevitably follow that there was in essence never any effective sale of a tractor to the respondent which would bring him within the definition of a consumer and the alleged transaction is entirely a complicated rigmarole of allegations which can not be accepted at their face value in the absence of any written document with regard to the alleged payment or repayment etc. It has therefore to be concluded that the respondent does not stricto-sensu come within the ambit of a consumer even on the basis of his own pleadings as spelt out in the complaint.

APART from the above in the context of the purported purchase of goods a cause of action in the consumer jurisdiction arises primarily on the basis that the goods were defective. It is significant that on the present pleadings there is not even a hint or a suggestion that the tractor bailed out to the respondent was in any way defective. Indeed it would appear that he had the user of the somewhat valuable machinery for a period of 1 months. On his own showing, as to what were the terms or conditions in a context where the respondent himself states that he had used the tractor for 1 months are left entirely to one''s imagination. Consequently it equally seems to follow that the averments in the complaint did not disclose any cause of action to bring it within the ambit of the definition of a complaint in clause (c) of Section 2(1) of the Act.

APART from the aforesaid discussion the matter is equally concluded in favour of the appellants by the precedent of the Delhi State Commission in 1993 C.P.C. 747, M/s. Manu Bhai v. M/s. Maruti Udhyog Limited and Others. A reading of the said judgment would disclose that the reliance was rightly placed on the binding precedent of the National Commission in M.N. Narsima Reddy v. M.D. Maruti Udhyog Ltd. and Others, First Appeal No. 67 of 1990, decided on the 20th of December, 1990 and again on Maruti Udyog Ltd. v. Kodaikanal Township and Others, Revision Petition No. 50 of 1992, decided on the 12th of October, 1992 and M/s. Modern Autotmobiles v. Dr. Hari Mohan Swami, First Appeal No. 5 of 1992, decided on the 7th of December, 1992. It is unnecessary to advert in detail to the aforesaid binding precedent of the National Commission which appear to cover the matter entirely on all fours against the respondent. It again bears repetition that the judgment of the District Forum suffers from fatal flaw in view of the admitted fact, that the appellants were not even given an opportunity to put in their pleadings on merits and they rightly requested that the treshold question of the consumer status of the respondent be decided first was virtually taken against them and post-haste decision on merits also was given in favour of the respondent without the least opportunity to the appellants to deny and rebut the somewhat sketchy allegations in the complaint.

In view of the aforesaid discussion it has to be held that the respondent neither comes within the ambit of a consumer nor did the pleadings in the complaint disclose a consumer''s dispute in the context of the allegations of a purchase of goods.

FOR the foregoing reasons this appeal has to be allowed and we are constrained to set aside the order of the District FORum. This would not however in any way preclude the respondent from seeking his remedy before a Civil Court of competent jurisdiction. Indeed it further appears to us that in view of the fact that the allegations in the complaint are sought to be hotly controverted on behalf of the appellants the same can be hardly adjudicated within the summary consumer jurisdiction and must necessarily be relegated to a proper trial in a Civil Court. The parties are however left to bear their own costs. Appeal allowed.