Sri Shyamal Gupta, Member

This Appeal is filed by Sri Bhagbat Goswami, the Appellant herein aggrieved with the Order dated 31-01-2018, passed by the Ld. District Forum, Purulia in complaint case no. 26/2017.

For the purpose of earning money for livelihood, the Appellant approached the Respondent No. 1, who was the authorized dealer of Eicher Tractor.  As he did not have sufficient cash, as per agreement, the Appellant handed over his old trekker (value Rs. 1,20,000/-) and also paid Rs. 50,000/- to the Respondent No. 1.  Subsequently, on receipt of financed amount from the Respondent No. 2, the Respondent No. 1 delivered one Tractor.  It is claimed that the Appellant paid a further sum of Rs. 30,000/- to the Respondent No. 1 towards registration and insurance charges in respect of the said tractor.  Allegedly, though the Respondent No. 1 handed him the insurance certificate, it did not handover the registration certificate to him.  Further allegation of the Appellant is that on 11-02-2017, the Respondent No. 1 forcefully took away the said tractor from his driver.  It is claimed by the Appellant that although he paid more money than what was agreed upon between them, the Respondent No. 1 took such coercive measure to squeeze him illegally. 

In its WV, the Respondent No. 1 submitted that the value of the Tractor together with trailer and some accessories was Rs. 8,54,987/-.  On 29-09-2014, the Appellant paid Rs. 22,000/- as advance and on good faith, the Respondent No. 1 handed over the tractor, trailer and other accessories to the Appellant on the very same day.  Thereafter, on 01-03-2016, the Appellant paid Rs. 4,20,139/- through the Respondent No. 2. Despite repeated requests, the Appellant has not paid the balance consideration amount.  This Respondent, in such a situation, presented the cheque that was issued by the Appellant to the bank.  However, the same got dishonoured due to insufficient fund.  Therefore, one criminal case was filed against the Appellant under the N.I. Act. This Respondent disputed the authenticity of the document dated 25-09-2014 relied upon by the Appellant in support of his claim that along with cash worth Rs. 50,000/-, he also handed over his old trekker. 

The Respondent No. 2, on the other hand, submitted that no allegation has been made against it by the Appellant in his petition of complaint.  It is further stated that the Appellant did not pay due EMIs in time.  Therefore, arbitration proceedings was drawn up against the Appellant.

Decision with reasons

Heard all sides and gone through the documents on record.

It appears from the petition of complaint that the instant complaint case was filed against various alleged arbitrary acts of the Respondent No. 1 in connection with the subject tractor in question.  Further, the complaint case was filed before initiation of the arbitration proceedings by the Respondent No. 2 against the Appellant. Accordingly, strong objection from the end of the Respondent No. 2 as regards maintainability of the complaint case notwithstanding, we find no substance in it.

We, however, wish to put on record our utmost dismay over non-availability of requisite documents from the end of the Appellant and Respondent No. 1 which prevented us from deciding the fate of the Appeal on merit.

First, on one hand, it is claimed by the Respondent No. 1 that it sold the Tractor along with trolley, hal, hood etc. at a total consideration of Rs. 8,54,987/- and on the other, on perusal of the copy of Sale Invoice dated 29-09-2014, we find that the Respondent No. 1 only sold the Tractor and total cost of the same was Rs. 6,68,517/-.  In absence of relevant copies of Invoices, we are unable to figure out if at all the above mentioned accessories were sold to the Appellant by the Respondent No. 1.

Second, it is claimed by the Appellant that he delivered his old Trekker and cash worth Rs. 50,000/- to the Respondent No. 1 on 25-09-2014. Though the Respondent No. 1 challenged the very authenticity of the same, no such concerted effort was made from the end of the Appellant to prove the said document following due process of law. 

Third, the Respondent No. 1 though claimed that on 27-02-2017, it was agreed between the Appellant and the Respondent No. 1 that the former would pay an additional sum of Rs. 90,257/- to compensate the financial loss being suffered by the latter, no tangible proof is forthcoming before us to ascertain such fact. 

Fourth, no copy of the repossession notice, seizure list is placed on record to show that it was done in accordance with law.

Fifth, it transpires from the money receipt dated 07-03-2016 that the Respondent No. 1 received a sum of Rs. 30,000/- from the Appellant to facilitate registration and insurance of the subject tractor. Though an insurance policy was issued, registration of the tractor has not been done as yet for some obscure reasons.  There is no explanation as to why the Respondent No. 1 did not discharge its responsibility or return the money that it took from the Appellant for this purpose.

On due consideration of the pros and cons of the case, it appears to us that for the purpose of proper adjudication of the case, consideration of above facts is extremely crucial. 

Accordingly, we deem it appropriate to remand the case to the Ld. District Forum for fresh adjudication of the same.  The impugned order is hereby set aside.  Consequent thereof, the Appeal stands allowed in part.  Parties to appear before the Ld. District Forum on 10-05-2019.