ORDER ON MEMO DT. 25-02-08 OF JDr<br /> <br /> This is a memo filed by the counsel for Jdrs on 25-02-08 stating that decree-holder has delivered the machinery without the items as per the enclosed list in all worth Rs. 1,03,150/- and so till the finalization of the matter the amount deposited may not be released to the decree-holder. Along with this memo a list is enclosed showing shortage of items/parts of the machinery.<br /> <br /> 2. Dhr in her affidavit filed as objection to the memo has stated that Jdr No-1 has been ordered to pay the compensation of Rs. 3,18,000/- and cost of Rs. 2,000/-. Accordingly the Jdr has deposited Rs. 40,000/- on 28-03-07, Rs. 20,000/- on 26-04-07, Rs. 20,000/- on 23-05-07 and Rs. 1,00,000/- on 27-07-07 all through DDs. In the meanwhile decree holder filed application U/s. 27 of C.P. Act for issuing Warrant against Jdr No-1 for not making full payment of decreetal amount, accordingly this Forum issued Show-Cause Notice to the Jdr which was returned un-served on several times after taking several steps.<br /> <br /> In the meanwhile at the request of Jdr.No-1 and his counsel, the case was compromised to the extent of Rs. 80,000/- out of Rs. 1,60,000/- balance amount. Accordingly the memo of settlement was also filed. Jdr came to the spot and took all the materials pertaining to the property under this E.P. but in-respect of property received, Jdr.No-1 did not gave any receipt and without informing her/decree-holder the Jdr.No-1 took-over all the property in rude and ugly manner and intentionally he has filed the memo with invoice stating that some materials are not received, only in-order to put her to hardship and to harass her as she being helpless lady to resist the arrogant activities of the Jdrs. The Jdr is not having any rights to raise any objections before the court. Hence for all these reasons the decree holder has sought for closing the E.P. by rejecting the memo of the Jdr.<br /> <br /> 3. The complaint of the complainant M/s. Kumar Industries through its Proprietor Smt. Padma (Dhr) filed in DCFR.No. 35/98 was originally dismissed on 14-11-99 by this Forum which order was set-aside by the Hon’ble State Commission in Appeal No. 404/2000 and remitted back to this Forum for fresh disposal according to law. Accordingly, after enquiry this Forum vide its order dt. 29-11-05 allowed the complaint of the complainant and directed OP.No-1/JDr-supplier to refund Rs. 1,68,330/- being the price of the Lathe Machine & accessory, paid by the complainant through KSFC. She was also awarded a global compensation of Rs. 1,50,000/-. Thus OP.No.1/Jdr.No-1 was ordered to pay a total sum of Rs. 3,18,330/- to the complainant/decree-holder within in a period of three months from the date of receipt of copy of the order, together with Rs. 2,000/- towards cost & other expenses. Complainant was also directed to return the Lathe Machine (purchased by her) to the OP.No-1 on the receipt of said amount.<br /> <br /> 4. Thereafter the decree-holder filed the present E.P. No. 11/06 for recovery of the decreetal dues. The Jdr/Op.No-1 appeared through counsel and sought time on the ground that being aggrieved by the orders of Karnataka State Commission and National Redressal Commission, they have filed Special Leave Petition before the Hon’ble Supreme Court, New Delhi on 23-12-06 in SLP (C) Diary No. 34245/2006 and expecting favourable order from the Apex Court. After taking sufficient adjournment the Jdr/OP-1 failed to produce Stay order or any Order from the Hon’ble Supreme Court and so this E.P. proceeded further, during which period the Jdr.No-1 deposited some amount vide memos on different dates. <br /> <br /> 5. On 23-05-07 the counsel for Jdr filed memo that Sales Representatives of Jdr has brought Purchaser of the machine from Bangalore, as the matter is settled Jdr will hand over the entire purchase amount (of the machinery) to the decree-holder. On 20-07-07 has deposited DD for Rs. 1,00,000/- towards part payment of decreetal amount through memo dt. 20-07-07. However due to non-payment of balance amount the decree-holder filed an application U/s. 27 of C.P. Act for issuing Arrest Warrant against Jdr.No-1. During the proceedings on this application, on 30-01-08 the counsel for Jdr submitted that there is likelihood of settlement of E.P. out of Forum and the Decree-holder who was present also submitted regarding offer of settlement by Jdr and so the case posted to 05-02-08 for reporting settlement. Subsequently on 21-02-08 both the parties and their counsel present. Jdr paid entire balance of decreetal amount to the Dhr who received the same and this E.P. was kept pending till next date for closing of EP as decree holder had to hand over the Lathe Machine to the Jdr as per order under E.P. accordingly the case posted to 22-02-08 for reporting. On 22-02-08 the counsel for Jdr sought time for reporting regarding delivery of handing over of machine by the Dhr. The case again adjourned to 25-02-08. On 25-02-08 the counsel for Jdr filed the present memo stating delivery of the machine to the Jdr by Dhr with shortage of item as shown in the enclosed list and so till finalization of the matter the amount deposited in the Forum may not be released to the decree holder. Thereafter the case adjourned to 10-03-08 for objection and hearing on the memo. Thereafter on 19-03-08 the counsel for Dhr filed memo with affidavit of Dhr as objection to the memo of the Jdr dt. 25-02-08, then the case posted to 28-03-08 for hearing on the memo of Jdr.<br /> <br /> 6. In-spite of granting sufficient time to the Jdr for hearing on his memo to substantiate short delivery of the machine (as per the list of the items enclosed to the memo) the Jdr and his counsel remained absent through-out right from 28-03-08 to 23-06-08 as could be seen from the order sheet. On 23-06-08 the proxy counsel for Jdr sought time for hearing on the memo on that day. The counsel for Dhr filed memo in-addition to objection filed by Dhr stating that Dhr has already received the amount. Then the case adjourned to 24-06-08 for hearing on the memo of Jdr. On 24-06-08 the proxy counsel for Jdr submitted that it be taken as heard and so accordingly it was taken as heard on the memo filed by the counsel for Jdr.<br /> <br /> 7. As stated above the Jdr who has filed the memo regarding shortage of machinery parts while taking delivery of the machine from the Dhr as per the enclosed list, but has not substantiated by any co-gent & convincing material in that regard. Even the Jdr remained absent through-out when the case was posted for hearing on his memo right from 28-03-08 till 23-06-08. On 23-06-08 the proxy counsel for Jdr sought time for hearing and on 24-06-08 the adjourned date of hearing, the proxy counsel submitted that it be taken as heard and accordingly it was taken as heard on the memo of Jdr. When the Jdr who has filed the memo regarding short delivery of some parts of the machinery by the Dhr, has failed to substantiate the same by co-gent & convincing material by remaining absent through-out, then we have no other go than to say that the Jdr.No-1 has failed to prove the memo filed by him regarding short delivery of parts of the Lathe Machine. Under these circumstances the memo is fit to be and the same is hereby rejected.<br /> <br /> 8. The Dhr in her memo dt. 23-06-08 has stated she has received the amount under E.P. and sought for closing of the E.P. Hence this E.P. is closed as E.F.S.<br /> <br /> (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 30-06-08)<br /> <br /> Sd/- Sd/- Sd/-<br /> Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. N.H. Savalagi,<br /> Member. Member. President, <br /> Dist.Forum-Raichur. Dist-Forum-Raichur Dist-Forum-Raichur.