1. First Appeal No.695 of 2003 has been filed by Social Action on Vulnerable Environment (SAVE) against the following:-
1. Natraj Borewell, Lajpat Nagar New Delhi
2. Indian Bank Connaught Circus, New Delhi,
3. Water Development Society, Hyderabad.
2. This appeal is against the order of AP State Consumer Disputes Redressal Commission passed on 1.7.2002 in CD No.43 of 1995. Respondent No.1, Natraj Borewell was the original complainant before the State Commission. The appellant Social Action on Vulnerable Environment (SAVE) together with Indian Bank and Water Development Society (WDS) were the OPs before the State Commission. 3. The same matter has got listed in another appeal No.687 of 2003 between the same parties and against the same order of the State Commission. In fact FA No.687 of 2003 is an exact copy of the appeal memorandum in FA NO.695 of 2003. Therefore, both are disposed of by a common order herein. 4. During the pendency of this appeal, Sri Rakesh Rishi, proprietor of Respondent/complainant firm, died. His surviving legal heir, his father Sri A C Rishi has been permitted to substitute him in the present proceedings.
5. The complainant/respondent No.1 Natraj Borewell is a proprietary concern in the business of drilling and constructing tubewells for exploitation of ground water. The dispute related to purchase of a drilling rig machine in 1985 by the complainant/R-1 from its manufacturer i.e. WDS/R-3. A loan of Rs.23 lakhs was advanced to the complainant by the Indian Bank/R-2, to finance this purchase. However, the complainant has limited his claim to Rs.20 lakhs, so as to remain within the pecuniary jurisdiction of the State Commission.
6. The case of the complainant before the State Commission was that the combination rig in question was a newly developed product of WDS. Being the first purchaser, he had been offered 25% discount by the seller. The manufacturer allegedly claimed that it could drill upto 725 feet through rock strata and 1000 feet through alluvial soil. He purchased it in 1985. A cheque of Rs. 23 lakhs, being the loan sanctioned to the complainant for this purchase, was directly paid by the Indian Bank/R-2 to the supplier WDS on 28th March 1985. According to the complaint petition, the rig was brought in May 1985 “for trial”. It was put to trial during May-August 1985 in Rajamundhry and West Godawari districts of Andhra Pradesh. Allegedly, the rig initially failed to drill beyond 100 feet, against the promise of 1000 feet. Later, with great problems, 1000 feet drilling was achieved.
7. The complaint petition also says that the engineers of the WDS took the rig to Hyderabad for repair. The complainant also wrote a letter on 30.9.1985 giving details of the defects noticed in the rig. On 18.11.1985 the supplier wrote a letter informing that the rig had been repaired and the same was accepted by the complainant “under protest and without prejudice” to his rights. The rig again failed to perform and had to be taken back to Hyderabad for repairs. On 26.3.1986, the OP/WDS wrote again that the rig was ready for delivery. The complainant was not willing to take further risk and demanded refund of the price paid with 18% interest. However, as per the complainant petition, on further pursuation and assurance about improvements achieved in the rig, the complainant accepted it and deployed it in Gwalior region in October 1986. It was found to perform to very low and insufficient levels. The defects were thereafter, never fully rectified. The consumer complaint was filed before the AP State Commission in February 1995. As per the complaint petition, before that, by a letter of 19.2.1992, OP/WDS had assured to take the rig back for complete repairs. The complainant claims that the case is one of continuing cause of action and also that the complaint was filed within 2 years from the date the Consumer Protection Act 1986 was amended to prescribe a limitation of 2 years.
8. In response to the above, OP-4/SAVE took the stand that the rig was put to excessive use in different parts of the country and therefore needed frequent repairs. Allegedly, the consumer complaint was filed only because the lender Bank had proceeded against the complainant through a civil suit. SAVE also raised another issue viz. that the WDS had merged with SAVE. An Advocate –Commissioner was appointed by the High Court to take over and run the WDS. All records are in his custody. Therefore, he should have been impleaded as a necessary party, in the consumer dispute. This apparently, refers to the Order of High Court of Andhra Pradesh No. 601 of 1994 passed on 23.12.1994, of which a copy was later produced before this Commission on behalf of appellant/SAVE. Appellant/SAVE was Respondent No.11 in these proceedings before the High Court.
9. The State Commission has observed that while the rig was delivered to the complainant on 18.11.1985, OP-3/Indian Bank had already delivered the cheque of Rs 23 lakhs to the manufacturer, WDS on 28.3.1985. However, the complainant sought no relief against OP-3/Indian Bank. The Commission has examined a set of ten letters written by the complainant and come to the conclusion that the first combination rig (which was supplied to the complainant) manufactured by the WDS was “a total failure.” From the letters of the manufacturer (WDS) and waybills etc, the Commission has concluded that the rig was taken to Rajamundhry and Jangareddygudam for demonstration purposes. The State Commission therefore concluded that there was deficiency in service. The Commission also took note of the admission on the part of OP-4/SAVE that the WDS had merged with it, in arriving at the conclusion of the joint responsibility of WDS and SAVE.
10. OP-4/SAVE is the appellant before us, against the impugned order of the AP State Commission, which is referred to by the appellant as an ex-parte order. On this point we find it necessary to refer to the observation of the State Commission that—
“The Complainant filed Exhibits A-1 to A-39. No documents are filed on behalf of the Opposite Parties. The proprietor of the complainant concern filed an affidavit through his father Sri A C Rishi. The proprietor, Sri Rakesh Rishi also filed his affidavit. No affidavits are filed by the opposite parties.”
11. In this background, we are unable to appreciate the plea of ex-parte proceedings, raised by the appellant. It is not the case of the appellant that opportunity to adduce evidence and be heard by the Commission was denied to it. Inability to appoint an advocate before the State Commission “due to financial crunch” is not an acceptable explanantion for non prosecution of defence before the State Commission.
12. The appeal memorandum also states that the appellant is in no way concerned with the purported claim of respondent no.2 against respondent no.3 and the appellant has nothing to do with respondent no.3 i.e. WDS. This is quite contrary to the appellant’s own averment in an earlier part of the appeal memorandum that “Even though the appellant has stated that the appellant was merged with respondent no.3 in accordance with law this was based on the understanding of the appellant at that time that there was a merger. The appellant has sought to explain his change of stand on the basis of his subsequent understanding that this merger was not registrable under the AP (Telangana Area ) Public Societies Registration Act. This is also contrary to the position taken by him before the High Court of Andhra Pradesh, referred to in an earlier part of this order. The appellant SAVE and R-3/WDS were both respondents in the proceeding before the High Court.
13. During the course of arguments before us, learned counsel for the appellant drew our attention to the affidavit filed by Sri A I Devdas, president of appellant/SAVE, in response to the direction of 11.4.2008 from this Commission, on the relationship between SAVE and WDS. The affidavit, in para 3 takes a categorical position that there is no relationship between the two. But in subsequent paras, it informs that in the proceedings initiated by Syndicate Bank against WDS, the appellant/SAVE deposited Rs 25 lakhs. However, it did not succeed in taking over assets of WDS. If the appellant had nothing to do with WDS, we fail to understand why it should have deposited Rs 25 lakhs and why should it have tried to take over the assets of WDS.
14. Respondent A C Rishi, father of the late Rakesh Rishi, (who originally represented the Complainant firm) drew our attention to another affidavit filed by the President of SAVE, Sri A I Devdas before the Addl. Sub-Judge, Rangareddy district in a proceeding directly against the Syndicate Bank on 7.4.1995. It says “I submit that we have offered to take up the activities of the second respondent society and pay the outstanding dues to the creditor bank, the first respondent herein. We have assured to assume the work and raise the necessary funds for revival of the unit……………..The second respondent society has executed a Deed of Transfer of Assets and liabilities of the society on 18.5.1994 in favour of the impleaded petitioner. Having followed these procedures prescribed by law the impleaded petitioner as well as the second respondent’s society have approached the registering authority under the AP Registration of Public Societies Act 1350-F for recognizing the amalgamation among others. The authority accepted the merger of the second respondent’s society into the impleaded petitioner’s society and intimated us that the said change is taken on record on 10.6.1994.” The impleaded petitioner is none other than the appellant/SAVE.
15. From the above, it is quite obvious that the affidavit filed before this Commission by the appellant is contrary to the stand taken by it before the State Commission as well as contrary to the stand taken by it before the Civil Court. We therefore, have no hesitation what so ever, in rejecting the claim of the appellant that it has nothing to do with the WDS.
16. In the result, the appeal is held to be devoid of any merit. The same is therefore, dismissed. The impugned order of the AP State Consumer Disputes Redressal Commission is confirmed. Cost of Rs 30,000 is awarded in favour of the respondent. The same shall be paid within two months.
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