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In the Matter of: M/s Sunjay Biotech Solution Private Limited, Mumbai v/s M/s. Navdeep Bioceuticals, Hiltop Industrial Estate, District Solan

    First Appeal No.352 of 2009
    Decided On, 26 August 2011
    At, Himachal Pradesh State Consumer Disputes Redressal Commission Shimla
    By, THE HONOURABLE MR. JUSTICE CHANDER SHEKHAR SHARMA
    By, PRESIDING MEMBER & THE HONOURABLE MRS. PREM CHAUHAN
    By, MEMBER
    For the Appellant: Ms. Suvrata Sood, Advocate. For the Respondent: Nipun Dwivedi, Advocate.


Judgment Text
Chander Shekhar Sharma, Presiding Member, J.

1. This appeal is directed against the order of the District Forum, Solan, passed in Consumer Complaint No.131/2008, dated 10.7.2009, whereby the complaint of the complaint was allowed and the opposite party was directed to replace the instrument within 15 days. It was further directed that in case the opposite party fails to replace the said instrument, then they were directed to refund the entire amount of Rs.1,69,000/- alongwith interest @ 9% per annum from the date of filing of the complaint i.e. 8.8.2009 till making full payment of the aforesaid amount and the damages to the tune of Rs.1500/- were also awarded alongwith litigation cost of Rs.1,000/-. Factual matrix of the case are that the complainant is a manufacturer of pharmaceutical formulations and opposite party is manufacturing concern of pharmaceutical instruments. Complainant had placed order for the purchase of various instruments vide order No.HR/PROJ/06-07, dated 30.1.2007 for an amount of Rs.10,40,000/- which includes sales tax @ 4%. Further averments in the complaint are to the effect that the complainant had paid an advance of Rs.26,000/- vide DD of Indian Overseas Bank, Panchkula payable at Mumbai, dated 31.1.2007 and as per terms and conditions of the purchase order, it was agreed by the opposite party that 10% amount can be retained by the complainant against performance guarantee of the instrument which was to be released after being satisfied relating to the functioning of the instruments. It was also pleaded that one of the Cyber UV-VIS Spectrophotometer was not functioning properly since its installation, as such result of output which expected was much below from the standard instrument. Complainant had immediately informed the opposite party telephonically as well as through e-mail dated 2.5.2008 and requested them to rectify or change the instrument. Thereafter, opposite party had sent their representative to rectify the problem but the complainant was not satisfied and he again complained through e-mail dated 20.5.2008. However, opposite party had assured the complainant through e-mail to resolve the matter on priority basis. Opposite party had failed to do so inspite of various requests made by the complainant to rectify or change the instrument and thereafter legal notice was also issued to the opposite party by the complainant and opposite party was requested to rectify the problem or to change the defective instrument or to pay the cost of instrument after deducting 10% cost which was retained by the complainant i.e. Rs.1,69,200/-. As such deficiency of service on the part of opposite party as pleaded. In this background complaint under Section 12 of the Consumer Protection Act, 1986 was filed for deficiency of service on the part of the opposite party.

2. In the present complaint notice of the complaint was issued to the opposite party through registered AD and the case was fixed for service of the opposite party on 24.10.2008 and the opposite party was proceeded against ex-parte by the Forum below which fact is apparent from the order dated 24.8.2008 passed by the District Forum below, whereby the Forum below had observed that notice to the opposite party was issued on 29.8.2008 and registered AD has not been received back delivered or otherwise and period of more than one month is over and as such presumption is available that notice must have been delivered to the opposite party, as such opposite party was proceeded ex-parte in the case and thereafter case was fixed for ex-parte evidence.

3. Brief resume of evidence led by the complainant in the present case is that the complainant in support of his case has filed his own affidavit and placed reliance upon various documents, Annexures C.1 to C.6. Annexure C.2, C.4 and C.5 are the legal notices served in this case to the complainant and annexure C.1 is the copy of purchase order and Annexure C.3 is the reply sent through e-mail and Annexure C.6 is the reply sent by the opposite party to the legal notices.

4. In this Case, we have heard learned Counsel for the parties and have also gone through the record of the case minutely. Mrs. Suvrata Sood, learned Counsel for the appellant argued that in the present case the order of the presumed service dated 24.10.2008 is not legally sustainable since it has caused grave mis-carriage of justice to the appellant and it is against the principles of natural justice since on the first date of hearing opposite party was proceeded ex-parte and as such order of the Forum below in allowing the complaint is not legally sustainable. She has also raised a point that in the present case the opposite party is the agent of the complainant and he is not the manufacturer, as such the Forum below had wrongly allowed the complaint against the appellant.

5. After hearing the learned Counsel for the parties and after going through the record of the case minutely, we are of the considered view that there is no merit in the present appeal and it deserves to be dismissed. Reason being that in the present case there is no illegality in the order of the Forum below dated 24.10.2008 whereby opposite party was proceeded ex-parte. Since this order is in conformity with the provisions of Section 28A of the Consumer Protection Act, 1986 which provides for presumption of deemed service in case registered AD is not received back undelivered or otherwise even after a period of one month when it was sent to the addressee. It is apparent from the copy of the postal registered receipt which is on record that the summons to the opposite party were sent on 29.8.2008 through registered AD and this case was fixed for service on 24.10.2008 which was a period admittedly fixed after a period of more than one month and it is very clear that this registered AD letter has not been received back undelivered or otherwise even after a period of more than one month, hence Forum below had rightly raised a legal presumption under Section 28A of the Consumer Protection Act, 1986 of deemed service on the part of the opposite party and opposite party was rightly proceeded against ex-parte. Provisions of Section 28A, relevant portion thereof is extracted hereinbelow for ready reference:-

'28A. Service of notice, etc………………………'Provided that where the notice was properly addressed, pre-paid and duly sent by registered post acknowledgment due, a declaration referred to in this sub-section shall be made notwithstanding the fact that the acknowledgment has been lost or mislaid, or for any other reason, has not been received by the District Forum, the State Commission or the National Commission, as the case may be, within thirty days from the date of issue of notice'.

In the present case, this fact is clearly proved on record from the affidavit of the complainant that the instrument Cyber UV-VIS Spectrophotometer which was purchased from the opposite party immediately after its purchase had developed some defect and was not in working order, as such complainant had even contacted the opposite party on phone and also sent various legal notices, Annexure C.2, C.4 and C.5 and even e-mail Annexure C.3 was also sent, despite of her making complaint to the opposite party, the instrument was not rectified or changed as requested by the complainant. As such the complainant in the case has been able to prove deficiency of service on the part of the opposite party and the Forum below had rightly allowed the complaint there is no legal

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infirmity in the order of the Forum below which is a reasoned one since the complainant’s evidence in the present case stand un-rebutted. However, there is no force in the plea of the learned Counsel for the appellant that the appellant is the agent of the complainant through whom orders are being placed as there is not an iota of evidence on record which proves this fact. As such this plea deserves to be rejected having no force.No other point was urged. In view of the aforesaid discussion, and fact and circumstances of the case, there is no merit in this present appeal and consequently this appeal is dismissed. No order as to costs. All interim orders passed from time to time in this appeal shall stand vacated forthwith. Copy of this order be sent to the parties free of cost as per rules.
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