Mukhtar Aalam vs Chet Ram Rotha

THIS revision petition has been filed by the petitioner against the order dated 4.4.2013 passed by the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla (in short, ''the State Commission'') in Appeal No. 185 of 2012 Mukhtar Alam Vs. Chet Ram Rotha by which, while allowing appeal partly, order of District Forum allowing complaint was modified.

BRIEF facts of the case are that Complainant/respondent sent five consignments of apple to OP/appellant for sale on commission basis in the year 2008. After sale, OP sent invoices after deducting expenses and commission and Rs.6,13,081/ - was payable to the complainant, but OP has not paid any amount. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that complainant had taken advance of Rs.2,50,000/ - from OP, but has not sent even a single box of apple during the apple season of 2008. It was further submitted that disputed questions were involved; hence, District Forum had no jurisdiction to deal with the complaint and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to pay Rs.6,13,081/ - with 9% p.a. interest and further awarded Rs.25,000/ - as compensation for harassment and Rs.5,000/ - as cost of litigation. Appeal filed by OP was partly allowed by learned State Commission vide impugned order and directed OP to pay Rs.3,63,081/ - instead of Rs.6,13,081/ - against which, this revision petition has been filed along with application for condonation of delay.

HEARD learned Counsel for the parties finally at admission stage and perused record. Petitioner has filed application for condonation of delay of 38 days in which he mentioned that he received certified copy on 18.5.2013, but as some material documents were not available for filing revision petition certified copy of documents were collected on 14.8.2013 and afterwards revision petition was filed on 4.9.2013. As there is delay of only 38 days and has been reasonably explained, I allow application for condonation of delay and delay stands condoned.

LEARNED Counsel for the petitioner submitted that inspite of no proof of supply of apples to the petitioner by respondent, learned District Forum committed error in allowing compliant and learned State Commission further committed error in allowing appeal only partly; hence, revision petition be allowed and impugned order be set aside and complaint be dismissed. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

AS per complainant, five consignments of apple were sent by complainant to OP. Perusal of copies of GR reveals that in Gr. No. 7779 consignor is Anil Bag and consignee is MAS, whereas in other three GR Nos. 7879, 7869, 7878 consigner and consignee are CRB. In all these GRs consignment has been sent from Delhi to Calcutta. These three GRs also does not contain consignments to OP. To prove consignment by complainant to OP from Shimla to Calcutta GRs should have shown complainant as consignor and OP as consignee that too from Shimla to Calcutta, but none of the GRs depict consignment of goods from Shimla to Calcutta that too by complainant to OP. In such circumstances, by no stretch of imagination it can be presumed that complainant dispatched five consignments of apple to OP from Shimla to Calcutta. Learned Counsel for the petitioner has also placed reliance on judgment of Delhi High Court in Bips Systems Ltd. Vs. Tata Infotech Ltd., 2012 6 AD(Del) 130 in which suit was dismissed as no documentary evidence was produced by plaintiff to prove delivery of goods to defendant. He also placed reliance on judgment of Delhi High Court in Harish Mansukhani Vs. Ashok Jain, 2009 2 AD(Del) 30 in which suit was dismissed in the absence of proof with the plaintiff by way of acknowledgement from the side of defendant pertaining to receipt of goods.

OP in the written statement specifically pleaded that he has not received even single box of apple inspite of making payment of Rs.2,50,000/ - as advance and has also stated that all bills C2 to C6 are fake. Perusal of aforesaid computer generated bills reveal that they do not bear signatures of OP and in the absence of any proof that these bills were generated by OP, no reliance can be placed on these bills and learned District Forum has committed error in allowing complaint on the basis of aforesaid bills and GRs and learned State Commission further committed error in dismissing appeal partly. In the light of judgment of Hon''ble Delhi High Court in Kusum Kund Durga Vs. Kalra Papers (P) Ltd., 2013 1 AD(Del) 532 in which similar defence was taken by defendant that no goods were supplied to him and bills were fake. Aforesaid bills and GRs do not inspire confidence and in such circumstances, it cannot be presumed that apples were supplied by complainant to OP for sale on commission basis.

IN the light of above discussion, impugned order is liable to set aside.

CONSEQUENTLY , revision petition file by the petitioner is allowed and order dated 4.4.2013 passed by learned State Commission in Appeal No. 185/2012 Mukhta Alam Vs. Chet Ram Roth and order of District Forum dated 20.03.2012 passed in Complaint No. 271/2009 Chet Ram Rotha Vs. Mukhtar Alam is set aside and complaint stands dismissed with no order as to costs.