Haryana

StateCommission

A/360/2015

BIENZOR(INDIA) - Complainant(s)

Versus

NIKLESH COOKING OIL REFINERIES AND ANR. - Opp.Party(s)

SANDEEP GOYAL

26 Aug 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      360 of 2015

Date of Institution:      22.04.2015

Date of Decision :       26.08.2015

 

Blenzor (India), 1-A, First Floor, Sharda Mansion, Dr. Baba Saheb Ambedkar Road, Dadar East, Mumbai-400014, India now existing at 27 Ismail mansion Dr. Ambedkar Road, Mumbai-400014, India through its Partner Sh. Santosh Sawant.

                                      Appellant-Opposite Party No.1

Versus

 

1.      M/s Niklesh Cooking Oil Refineries, 14^th Mile Stone, NH-65, Village Batta, Tehsil & District Kaithal through its partner Kamal Shorewala, s/o Sh. Prem Chand Shorewala, Resident of Kaithal.

                                      Respondent-Complainant

2.      Canara Bank, Kaithal through its Branch Manager.

Respondent-Opposite Party No.2

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Mrs. Urvashi Agnihotri, Member.                                                                                                                              

Present:               Shri Sandeep Goyal, Advocate for appellant.

                             Shri S.S. Momi, Advocate for respondent No.1.

                             None for respondent No.2 (performa).

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

This appeal is directed against the order dated July 28^th, 2014, passed by District Consumer Disputes Redressal Forum (for short ‘District Forum’), Kaithal, in Complaint No.111 of 2013.

2.      M/s Niklesh Cooking Oil Refineries-complainant-respondent, purchased a ‘FFS Machine’ suitable for packing one litre oil vide invoice dated March 9^th, 2013 (Exhibit C-3) from Blenzor (India)-Opposite Party No.1-appellant for Rs.4,52,840/-. As per advertisement given by the opposite party the packing speed of the machine was 35 packs per minute. However, after installation, it was found that the machine was packing only 15 packs per minute as against promised 35 packs. The complainant approached the opposite party but to no avail. Hence, complaint was filed before the District Forum.

3.      Notice being given, the opposite parties did not contest the complaint and were proceeded exparte.

4.      The complainant led evidence. After evaluating the evidence available on the record, the District Forum accepted complaint and issued direction as under:-

“……….we allow the complaint exparte and direct the OP no1. To replace the defective machine with new one with the production capacity of 35 pouches instead of 15 in one minute. However, it is made clear that if the said machine with production capacity 35 pouches in one minute is not available with the OP No.1, then the OP is liable to refund the cost of machine i.e. Rs.4,85,000/-  to the complainant and further to pay Rs.2200/- as lump sum compensation on account of harassment, mental agony and cost of litigation charges. Let the order be complied with within a period of 30 days, failing which, the complainant shall be entitled interest @ 8% days, failing which, the complainant shall be entitled interest @ 8% p.a. from the date of communication of this order till its realization.”

5.      There is delay of 238 days in filing of the appeal the condonation of which has been sought by the appellant-opposite party by moving an application under Section 5 of the Limitation Act. The ground taken in the application for condonation of delay is as under:-

“2.     That learned District Forum, Kaithal vide order dated 15.11.2013 proceeded exparte against applicant whenever notice were never served on the applicant and after that passed exparte impugned order dated 28.07.2014 and on dt. 08.03.2015 applicant received call from the old address of applicant firm that some person was enquiring regarding firm then applicant enquired the matter and came to know on dt. 10.03.2015 that exparte order has been passed against him by learned District Consumer Redressal Forum, Kaithal and applied certified copy of impugned order dt. 28.07.2014 on dt. 18.03.2015 which was supplied to appellant on dt. 24.03.2015. Then the present appellant came to know that it was proceeded illegally exparte vide order dt. 15.11.2013 and then on dated 18.03.2015, present applicant applied for certified copies of interim orders and order dated 15.11.2013 vide which it was proceeded exparte and same were supplied to it on dt. 24.03.2015 and approached to undersigned counsel on dt. 30.03.2015 for challenging the impugned orders passed by learned District Forum, Kaithal. Undersigned counsel advised him to get prepare the draft of Rs.25,000/- as statutory requirement for filing the appeal. the appellant arranged the money and got prepared the draft of Rs25,000/- dated 15.04.2015 and sent to undersigned counsel. Therefore the present appeal being filed with the delay of 238 days.”

6.      The stand taken by the appellant is that neither it was served nor had any knowledge about the pendency of the complaint. The ground taken in the application is contrary to letter dated September 2, 2013 (Exhibit C-15), which was sent by the appellant to the complainant through email, which reads as under:-

“Dear Sir, We have received your complaint number 111/13 today from consumer disputes redressal forum Kaithal.

However we have already informed you that this is typographical mistake of the machine speed which was mentioned incorrectly and over sighted

There is no need to fight this complaint and we can also re-file the same in Bombay consumer court which will imbalance actions of both of us.

So hereby we request you to withdraw this complaint immediately, we have already spared our valuable time with necessary installations in your factory.

There is balance payment of Rs.57,500/- unpaid which can’t be seriously overlooked.”

7.      The appellant-opposite party No.1 was proceeded exparte on November 15^th, 2013. Thus, from the above evidence it is established that the absence of the appellant-opposite party No.1 was intentional and deliberate and not bonafide. 

8.      It is well settled principle of law that a litigant who does not come to the court with clean hands, is not entitled for any relief. The act and conduct of the appellant does not entitle it to get any relief. Hence, the application filed by the appellant for condonation of delay is dismissed.

9.      Consequently, the appeal being barred by time is dismissed.

10.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the respondent No.1-complainant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced 26.08.2015

(Urvashi Agnihotri) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL