KUNDAN KUMAR KUMAI

This is an appeal preferred under Section 41 of the Consumer Protection Act 2019, against the order dated 04/07/2022, passed by the Ld. DCDRC, Malda in Case No.  CC/130/2022.

Brief facts of the appellant’s case are that, the appellant had placed an order for supply of dish wash, bleaching powder, white phenyl, black phenyl, toilet cleaner, glass cleaner, detergent powder to the respondent, who is carrying on business in e-commerce platform. In this regard the complainant had paid Rs. 8,10,000/- (Eight lakh ten thousand) only, but after opening the cartons, found that the products were of substandard quality. The appellant prayed to the respondent, for either taking back the products or returning the paid amount. The appellant also issued a legal notice, but no reply was received from the respondent side. He then filed this instant case before the Ld. DCDRC, Malda, who dismissed the case vide the impugned order, at the stage of admission itself.

Being aggrieved by the impugned order, the appellant preferred this appeal on the ground that the Ld. DCDRC, Malda, failed to appreciate the appellant’s case and therefore, erred while passing the impugned order on the ground of facts as well as law.

The respondent appeared to contest this appeal and filed a WNA, in this respect.

Decision with reason

Ld. Advocate for the appellant has submitted in addition to his WNA, that the Ld. DCDRC, Malda, failed to appreciate that a Consumer could be a firm also, as per Section 2(31) of the CP Act 2019. He has also relied on the judgment passed by the Hon’ble NCDRC, New Delhi, in Revision Petition No. 610 of 2016 between Vinod Kumar Kucchal Vs. M/S TDI Infrastructure Ltd. on 09/02/2018, that the commercial purpose, in a case should be decided at the end of a trial.

Ld. Advocate for the respondent has also submitted, that the case filed by the appellant was false and frivolous and the same had been dismissed, when the appellant had filed a case earlier on 28/04/2022 and the instant appeal was the replica of the earlier case and therefore, the principles of res judicata was attracted.

As far as the factual aspect, of this dispute, is concerned, there appears to be no factual dispute, as the case was decided against the appellant, only on the ground of the principles of res judicata being attracted. The only dispute that needs to be settled is, whether the principle of res judicata would bar the second case, leading to the impugned order.   

On perusal of the impugned order, it transpires that both the cases, had been dismissed during the stage of admission, itself, indicating that the case had been disposed of at the preliminary stage and not on merits. The principles percolating from the judgment passed by the Hon’ble NCDRC, New Delhi, in Revision Petition No. 610 of 2016 between Vinod Kumar Kucchal Vs. M/S TDI Infrastructure Ltd. on 09/02/2018, clearly lays down that a commercial purpose, should be decided at the end of the trial. In the instant case as earlier stated, the same was not done and the case had been dismissed firstly at the admission stage itself and the impugned order under challenge had been disposed on the ground that the order passed in the earlier case would act as a res judicata. Even though the principles of res judicata, would be attracted to the Consumer Protection Act, as it is a universal principle applicable to all the statute and has been held by the Hon’ble Division Bench of the High Court of Karnataka (Circuit Bench at Dharwad), in Ajjappa Venkappa Shelwadi & others Vs. The Manager Syndicate Bank & Another, reported in 2011 3 AIR (Kar) (R) 196. But that application should only happen in cases, which have been disposed of on merits and not interfered by the appellate courts, leading the order to achieve finality.  In the instant case as neither of the orders were passed on merits or on contest, and with the principles of the order passed by the Hon’ble NCDRC, New Delhi, in Revision Petition No. 610 of 2016 between Vinod Kumar Kucchal Vs. M/S TDI Infrastructure Ltd. on 09/02/2018, indicating that the commercial angle be decided at the end of trial, which has not been fulfilled in the instant case and therefore, the principles of res judicata would not be attracted, leading to the interference of the impugned order passed by the Ld. DCDRC, Malda, from this end.

As a result, the instant appeal succeeds.

It is therefore,

ORDERED

That the instant appeal be and the same is allowed on contest but without costs.

The impugned order is hereby set aside with the direction that the parties be allowed to contest the case in CC/130/2022, and to pass a fresh judgment on merits after giving opportunities to submit their written version and evidence thereafter.

Copy of the order be handed over to the parties free of cost.

Copy of the order be also sent to the Ld. DCDRC, Malda for necessary compliance.