No. 5/29.06.2011.

HON’BLE JUSTICE SRI PRABIR KUMAR SAMANTA, PRESIDENT.

Revision Petitioner is present through Ld. Advocate Mr. S. K. Das.  O.Ps are absent on calls.  This revisional application is directed against the order No. 13 dated 30.08.2010 passed by the Executing Forum thereby dismissing the execution case No. 7/S/10.  The JDR No. 1 is the manufacturer of the mobile handset.  JDR No. 2 is the service center while the JDR No. 3 is the dealer of such mobile handset.  The complaint case arose out of sale of a defective mobile handset by the JDR No. 2.  It is not in dispute that after discovery of the defect in the mobile handset purchased by the Complainant the same was handed over to the JDR No. 2, the service center as per the direction of the JDR No. 3, the dealer for necessary repair.  It is also not in dispute that the defective mobile handset is still lying in the custody of the JDR No. 2.  The above complaint case has been allowed on contest against the JDR No. 1 and ex parte against the JDR Nos. 2 & 3 with cost of Rs.1,000/-.  The O.Ps have been directed to pay a sum of Rs.7,050/- to the Complainant along with compensation of Rs.2,000/- for such defective mobile handset within a period of 45 days from the date of making of the said order, in default of which the said amount will carry an interest @ 9% from the date of filing of the complaint case (i.e. 27.09.2008) till realization.  By the aforesaid order all the O.Ps have been jointly and severally made liable to pay the aforesaid awarded amount.

It appears from the impugned order that since the defective mobile handset is still lying in the custody of JDR No. 2 which has not been returned to the Complainant and the JDR No. 1 is ready and willing to pay to the Complainant the aforesaid awarded amount on condition of return of the said handset, the above execution case has been dismissed as the Complainant has failed to return the defective mobile handset to the JDR No. 1.

Upon reading of the award as passed by the District Forum below it is evident that all the JDRs are jointly and severally liable for payment of the aforesaid awarded amount to the Complainant since the defective mobile handset is lying in the custody of JDR No. 2 who has failed to handover the same to the Complainant in spite of request.  So the Executing Court ought to have proceeded against the JDR No. 2 for the purpose of recovery of the aforesaid handset in favour of the JDR No. 1 or alternatively for recovery of the awarded amount from the said JDR No. 2. 

For the reasons as aforesaid the impugned judgement and order No. 13 dated 30.08.2010 is set aside with a direction upon the Executing Court to proceed with the execution case from the stage prior to the making of the impugned order.  The execution case is accordingly sent back on remand to the Executing Forum below.  It is made clear that the Executing Court will proceed against the JDR No. 2 for the purpose of recovery of the aforesaid awarded amount along with interest if the defective handset is not returned to the Complainant within the reasonable time.