Sri Utpal Kumar Bhattacharya, Member

Instant Appeal u/s 15 of the C.P Act, 1986 has been filed by the Appellants/OP Nos. 2 and 3 challenging the judgment and order dated 04.11.2016 passed by the Ld. District Forum, Kolkata Unit—II in Complaint Case No. CC/244/2006 allowing the complaint ex-parte against the Respondent No. 2/OP No. 1 with the direction upon him to refund an amount of Rs. 1,22,790/- to the Respondent No.1/Complainant with interest @ 10% p.a. w.e.f 05.02.2016 till compliance apart from litigation cost of Rs. 10,000/- within one month from the date of the impugned judgment and order.

The Respondent No. 2/OP No. 1 was also directed to pay Rs. 30,000/- to the Respondent No. 1/Complainant as compensation for causing mental pain, agony and harassment within the above stipulated period, in default, as ordered, the Respondent No. 1/Complainant would be entitled to put the order into execution u/s 25 read with Section 27 of the C.P Act, 1986 and in that case Respondent No. 2/OP No. 1   should be liable to pay penal damage @ Rs. 5,000/- per month to be paid to the Ld. District Forum till full and final satisfaction of the decree. No order was passed against the Appellants/OP Nos. 2 and 3.

The case was that the Respondent No. 1/Complainant, an organization engaged in manufacturing steel product, Ductile Iron Pipes (DI Pipes), cement etc placed an order for supply of some steel furniture with the Respondent No. 2/OP No. 1, the authorized dealer of Appellants/OP Nos. 2 and 3, the manufacturer of the ordered products. The Respondent No. 1/Complainant, on being assured with the products would definitely be delivered within the given deadline, advanced an amount of Rs. 1,22,790/- being a part of the total consideration of Rs.4,68,650.75 through cheque issued in favour of the Respondent No.2/OP No. 1.

The Respondent No. 2/O.P No. 1, however, could not deliver the said furniture on repeated persuasion from Respondent No. 1/Complainant. Ultimately, after long expiry of the given deadline, it assured part supply of the ordered products which the Respondent No. 1/Complainant refused to accept as, according to him the part supply would not have served its purpose. The articles which were meant for the canteen for the staff of the Respondent No. 1/Complainant organization, since remained undelivered for a prolonged period of time and since such irresponsible act on the part of the Respondent No. 2/OP No. 1 created resentment among the said staff, the Respondent No. 1/Complainant had to face embarrassing circumstances. Being disgusted with the above deficiency in rendering services by the Respondent No. 2/OP No. 1, the Respondent No. 1/Complainant demanded the refund of the amount advanced by it to the Respondent No. 2/OP No. 1. The Respondent No.1/Complainant preferred to file the Complaint Case before the Ld. District Forum when all persuasions for getting the refund from the Respondent No. 2/OP No. 1 failed. The impugned judgment and order originated from the said Complaint Case.

Heard the Ld. Advocates appearing on behalf of both sides.

The Ld. Advocate appearing on behalf of the Appellants/OPs, drawing the notice of the Bench to running page No. 17, being the internal page No. 2 para 2 of the impugned order, submitted that the Ld. District Forum recorded wrongly that the OPs had remained absent from the proceedings in spite of notices being served upon them when the fact remained the OPs had filed WVs.

The Ld. Advocate drew the notice further to running page 18, being the internal page 3 at para 4 of the impugned judgment and order and continued that same observation was recorded there too. Referring to running pages 54 and 96, Ld. Advocate contended that it was evident from pages that the WVs were duly submitted by the Appellants/OP Nos. 2 and 3 and Respondent No. 2/OP No. 1 respectively. That apart, the Ld. Advocate went on to file before the Bench the daily order Nos. 5 and 6 dated 04.08.2016 and 18.08.2016 respectively which were indicative of filing the WVs by the OPs.

The Ld. Advocate maintained that the evidences as above made it clear that the impugned judgment and order was passed without the important documents being consulted. The order, as contended, attained nullity in the above perspective.

The Ld. Advocate prayed for the Appeal to be remanded for hearing the case afresh on merit.

The Ld. Advocate appearing on behalf of the adversaries, without submitting any point contradictory to the above submission of the Appellants/OPs, agreed to the prayer for remand of the case before the Ld. District Forum on the same ground.

We perused the papers on record and also considered submissions of both sides. The record appears to be revealing that the OPs of the complaint petition has submitted their WVs. As it appears the Ld. District Forum has left an indication in the impugned judgment and order which led us to assume that the WVs submitted by the OPs has skipped its notice while delivering the said order.

Since both parties want the case to be heard afresh on merit once again in view of the above facts and circumstances, we intend the case to be remanded to the Ld. District Forum as prayed for.

Hence,

ORDERED

that the Appeal be and the same is allowed in part. The case is remanded to the Ld. District Forum for the same to be heard afresh on merit and for a reasoned order to be passed considering all the relevant papers and also allowing the parties opportunities of being heard. Fix 18.04.2019 for appearance before the Ld. District Forum, Kolkata Unit—II.