M.S.H.K. DURANI vs VADULLA BALARAMA MURTHY

THIS is an appeal preferred by the 1st opposite party in O.P. No. 400/1996 questioning the order of the East Godavari District Forum dated 26.11.1997 in that O.P. preferred by the 1st respondent before us. Opposite Parties 2 and 3 in O.P. No. 400/1996 are respondents 2 and 3 in this appeal.

THE brief and undisputed facts are that the complainant participated in a public auction held on 27.10.1996 conducted by the appellant for sale of a tractor bearing Registration No. AHF 2211 with Engine No. 51228202350 and chassis No. 71210600782. THE complainant was the highest and successful bidder and paid the entire bid amount of Rs. 37,000/- by 30.7.1996. THE possession of the tractor was delivered to him but without the C-Book in respect of the tractor. THE complainant made several representations to the opposite parties including the appellant but that C-Book was not handed over to him. He addressed a letter dated 9.9.1996 to the 3rd opposite party (3rd respondent before us) and the 3rd opposite party replied that the appellant was the one to be approached for that purpose Having failed in his efforts to get the C-Book, he approached the District Forum for relief i.e., claiming loss of Rs. 300/- per day from 1.9.1996 to 27.11.1996 and also compensation for mental agony and a direction to the opposite parties to hand over the C-Book of the tractor in question. The appellant alone filed his version by way of a counter. He stated that one Sri D. Suryanarayana Murthy purchased the tractor by taking loan from the Primary Agricultural Co-operative Society Limited, G. Medapadu i.e., 3rd opposite party, and that the vehicle was hypothecated with the 3rd opposite party, and that because he committed default in payment of the instalments the 3rd opposite party took possession of the tractor and brought it to auction by handing it over to the appellant to hold the public auction. The appellant admitted in his counter that the complainant was the highest bidder and that the tractor was handed over to him on 20.7.1996 and that the balance amount was paid by him. He however sought to absolve himself from the handing over the C-Book by stating that the complainant knew that he had to collect the C-Book directly from the Secretary of the 3rd opposite party Society.

The District Forum on the facts of the case held that the complainant was entitled to receive the C-Book and that as the auction was held admittedly by the 1st opposite party i. e. appellant before us, he was under the duty to hand over the C-Book when the sale was confirmed in favour of the complainant. The District Forum further held that there was deficiency in service on the part of the opposite parties in not handing over the C-Book to the complainant when he paid the entire purchase amount as bid by him. In the result the District Forum allowed the complaint and directed the opposite parties to take steps jointly and severally to deliver the C-Book in original by effecting transfer or by obtaining a duplicate copy of C-Book duly endorsed in the name of the complainant and also to pay Rs. 10,000/- towards general damages and Rs. 1,000/- towards costs.

OPPOSITE Parties 2 and 3 i.e., respondents 2 and 3 before us, did not prefer any appeal questioning the said order of the District Forum and therefore, the said order had become final against them. Only the 1st opposite party preferred the appeal. The main contention advanced on behalf of the appellant is that he retired and therefore, he would not be in a position to deliver the C-Book to the complainant. But that was not the stand taken by him in his counter. Admittedly he was in service at that time. At any rate, he has no explanation whatsoever for not securing the C-Book before auctioning the tractor because he knew that once the sale confirmed he would have to hand over the C-Book along with the tractor. We, therefore, do not find any substance in this contention. The other contention advanced by the learned Counsel for the appellant is that the complainant was not a consumer because he himself stated in the complaint while explaining his loss that since the C-Book was not delivered to him he was unable to put the tractor for use and was unable to give it on hire. From that the Counsel wanted to draw the inference that the complainant was using the tractor for commercial purpose. No such contention was taken in the counter and it is not open to the appellant to raise this contention at this stage. Moreover, in the present case the question is whether there was deficiency in service on the part of the opposite parties in not handing over the C-Book having brought the tractor to sale. We, therefore, do not find any merit in this contention. The learned Counsel for the appellant also submits that it would be possible for the complainant to approach the Transport Authorities and obtain a duplicate C-Book. But we fail to see how this can be done because it is their responsibility to hand over the original C-Book alongwith transfer papers when they themselves brought the tractor to sale. After going through the record of the District Forum and the order of the District Forum carefully we do not find any merit in this appeal. The appeal is, therefore, dismissed. No costs. Appeal dismissed.