KUNDA KUMAR KUMAI
This is an appeal u/s 41 of the C. P. Act, 2019 preferred against the order dated 19/04/2023, passed by the Ld. DCDRC, Malda, in CC/161/2022.
Brief fact of the Appellant’s Case is that the Respondent Nos. 1 & 2/Complainants, intended to purchase a new vehicle from the Appellant No.1, but the Appellants cleverly offered a Policy to exchange the old car, being no. WB02X-9342 of the Respondent No.1/Complainant, with a new vehicle, after set off of the price of the old vehicle, from the purchase price. In this regard, they paid the balance amount and the Appellants took over the old car from them and handed over the new vehicle to them. But the Appellants failed to transfer the name of the ownership of the old car. It was later learnt by the Respondents/Complainants that the old vehicle was plying within the territory of Kolkata and a Case was initiated for which the Respondent No.1 was liable for the Case, initiated against the old car. In order to save themselves the Respondents/Complainants issued a Legal Notice dated 09/05/2022 and another Legal Notice dated 31/05/2022, but there was no response. Finding no alternative, they filed this Complaint with the Ld. DCDRC, Malda with necessary prayers.
The Appellants failed to appear before the Ld. Lower Commission following which the Case was heard ex-parte.
After going through the evidence of the Respondent No.2/Complainant and the documents filed by him and hearing them the Ld. Lower Commission passed the impugned order, directing the Appellants jointly and severally to change the name of the Respondent/Complainant, from the documents of vehicle bearing no. WB02X-9342 within one month from the date of the impugned and also to pay compensation as well as litigation cost to the tune of Rs.2,50,000/- (Rupees two lakhs fifty thousand) only, failing which the Respondents/Complainants would be competent to initiate proceeding u/s 72 of the C. P. Act, 2019 and initiate criminal proceedings before the proper Forum.
Being aggrieved by the above order the Appellants preferred this instant appeal on the ground, that despite appearing before the Ld. Lower Commission on the date of passage of the impugned order i.e., on 19/4/2023 and expressed their intention to contest the Case by filing a written version and a petition to remove the Case from the Ex-Parte Board by serving a Copy to the Advocate of the Opposite Side, but the same was not received by the Ld. Commission and the impugned order thereby suffered from illegality and irregularity.
Decisions with Reasons
Ld. Advocate for the Appellant at the time of final hearing, submitted that the Appellants were deprived from contesting the Case, before the Ld. Lower Commission, as they had appeared before the Ld. Lower Commission with the written version as well as a petition praying for removing the Case from the Ex-Parte Board on 19/04/2023 when the impugned order had been passed. The endorsement on the Petition by the Ld. Advocate for the other side, regarding receipt of the Copies of the Petition as well as the written version, clearly endorses the appearance of the Appellants on that date, keen to contest the claim. Moreover, the Case suffered from addition of Respondent No.1/Complainant, as she was not a necessary party. That apart, the Case also suffered on the point of limitation, as the limitation had arisen on 05/11/2018 whereas the Case before the Ld. Lower Commission had been filed in the last part of 2022. Furthermore, the letter dated 12/04/2022, clearly showed that the Respondent No.1/Complainant, had visited the RTO, Malda on 18/11/2018, days after the purchase on 06/11/2018, for changing the ownership and therefore the Appellant should not be liable for the non-transfer of the name by the RTO, Malda. He, therefore, prayed for allowing the appeal and setting aside the impugned order. He has also relied in the judgement passed in Suo Motu Writ Petition (C) No. 3 of 2022 of the Hon’ble Supreme Court of India, Punjab Urban Planning and Development Authority Vs. Vidya Chetal by the Hon’ble Supreme Court of India in SLP (C) No.4272 of 2015 with SLP (C) No.5237 of 2015 and Lucknow Development Authority Vs. M. K. Gupta reported in (1994) 1 SCC 243.
Ld. Advocate for the Respondents/Complainants on the other hand, countered the arguments that the Appellants had failed to discharge their duties towards the transfer of the name in the old vehicle of the Respondent No.2/Complainant, thereby causing deficiency in service as well as unfair trade practices. He, therefore, prayed for upholding the impugned order and dismissing the instant appeal.
Without going into the merits of the Case, it transpires from the submission of the Ld. Advocate for the Appellant, that he appeared before the Ld. Lower Commission on 19/04/2023, the date of passing of the impugned order, appears to be substantiated by the fact that the endorsement in the copy of the written version as well as the petition, shows receipt of the copies on 19/04/2023. It may be argued that this could be a private management between the two Ld. Advocates, but it appears that as the Respondent No.2/Complainant is also an Advocate, it is difficult to believe that, such type of arrangements could have been possible. Under the circumstance, when the Appellants have challenged the veracity of the Respondents/Complainants’ Case, this appears to be a good ground to remand the Case for a fresh trial after accepting the written version and the supporting evidence from both the sides and pass a fresh judgement. As a result, the instant appeal succeeds.
It is therefore,
ORDERED
That the instant appeal and the same is allowed on contest, but without cost.
The impugned order is hereby set aside and the Ld. DCDRC, Malda is directed to comply with the directions stated in the body of the judgement and pass a fresh judgement.
Copy of the order be sent to the parties free of cost.
Copy of the order be sent to the Ld. DCDRC, Malda for necessary information and action.
Statutory fees be returned from whom received.
Jt. Registrar, Siliguri Circuit Bench of WBSCDRC to do the needful.
