Punjab

Ludhiana

EA/15/27

DR.S.C.Garg - Complainant(s)

Versus

Sanjiv Kalia - Opp.Party(s)

27 Apr 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,                                                                                          LUDHIANA.

                                                  Execution Application No.27 of 23.01.2015                                                       Date of decision: 27.04.2015                      Dr.S.C.Garg, son of Shri.M.R.Garg, 660/4, Pakhowal Road, Ludhiana.

                                                                             …Respondent/complainant.

                                                Versus       

Lilac Medicare (P)Ltd, 8, Sungold, 303 Sher-E-Punjab, Mahakali Caves Road, Andheri (E), Mumbai-400 093.

                                                                             Applicant/Opposite party

EXECUTION APPLICATION U/S 27 OF THE CONSUMER PROTECTION ACT, 1986

Quorum      Sh.R.L.Ahuja,President.                                                                                                      Sh.Sat Paul Garg, Member.                                                                                  Ms.Babita, Member.

Present:       Sh.T.N.Taneja, Adv, for applicant/Op2.                                                    Sh.Shekhar Gupta, Advocate for respondent/complainant    
          Dr.S.C.Garg.

ORDER

R.L.AHUJA, PRESIDENT

1.                This order shall dispose off an execution application filed by the applicant/OP2 against respondent/complainant Dr.S.C.Garg bearing Execution No.27 and filed on 23.1.2015. It is averred in the execution application that in furtherance to and for compliance of the order dated 17.9.2013 passed by the Hon’ble National Commission, the applicant/OP2, through its representative, approached the complainant on 8.10.2013 and handed over a copy of letter dated 8.10.2013 by which, the applicant/Op2 was seeking the complainant’s co-operation in making necessary arrangements to enable the applicant to lift the machine on 10.10.2013. However, to their surprise, the complainant not only refused to acknowledge the receipt of the letter dated 8.10.2013 from the applicant’s representative but also refused to permit the applicant to lift the machine on 10.10.2013 for the purpose of rectification. Under these circumstances, the applicant by its letter dated 10.10.2013 was constrained to record the conduct of the complainant in refusing to co-operate with the applicant and further prevented the applicant from complying with the said order. In response of the said letters, the applicant received a reply dated 26.10.2013 from the complainant counsel. However, by letter dated 26.10.2013, the complainant had only raised false allegations against the applicant and had not advised as to when and how the machine could be lifted, thereby making it clear that the complainant has no intention of complying with the said order. However, it was due to inadvertence that the applicant failed to remit the cost of Rs.5000/- to the complainant as awarded by the Hon’ble National Commission. The applicant filed an application  before the Hon’ble National Commission, with an undertaking to pay the cost of Rs.5000/- to the complainant before the Hon’ble National Commission, for the directions against the complainant to comply with the order dated 17.9.2013 of the Hon’ble National Commission. The Hon’ble National Commission vide its order dated 13.12.2013 disposed off the application of the applicant with a liberty to the applicant to approach this Hon’ble Forum for compliance of the decree. As per the aforesaid the complainant has no intention of complying with the said order and is willfully not co-operating with the applicant to allow it to comply with the said order of the Hon’ble National Commission. Hence, this execution application as the respondent/applicant undertakes to pay the said cost of Rs.5000/- as imposed by the Hon’ble National Commission to the complainant before this Hon’ble Forum.

2.                In reply to the execution application, Sh.Shekhar Gupta, Advocate for the respondent/complainant Dr.S.C.Garg filed the reply/objections, in which, it has been submitted in the preliminary objections that admittedly, the order of the Hon’ble National Commission was passed on 17.9.2013 which was a consent decree directing the respondent no.2/applicant to lift the machine from the premises of the complainant within three weeks from the date of order. The three weeks time expired on 8.10.2013. It is incorrect that the respondents had approached the complainant on 8.10.2013 for lifting the machine on 10.10.2013. It is further alleged by the respondents that the complainant did not accept request letter and also did not allow to lift the machine. All the allegations of the respondents are denied. They never approached the complainant and all the letters produced by them are self-created and self prepared.The respondents were strictly required to lift the machine up till 8.10.2013 and if the complainant had not allowed them to enter the premises, they should have approached this Hon’ble Forum uptill 8.10.2013 with the said complaint which they are comlaining at this stage. The first execution application filed by the complainant is already pending in this Hon’ble Forum and is fixed for enforcement of the consent decree passed by this Hon’ble Forum and the second execution filed by the respondent is not maintainable. The allegations of the respondent are proved to be false as they have approached the Hon’ble National Commission for extension of time, which was disallowed on 21.11.2013 and they were directed to comply with the consent decree as settled amicably. Reply on facts, all the allegations made in the execution application are denied and made prayer that respondents be directed to abide by the order of the Hon’ble National Commission and return the amount received from the complainant alongwith interest @6% p.a. and costs of Rs.5000/- till date.

3.                We have heard the learned counsel for the parties and have also perused the record on the file very carefully.

4.                 Perusal of the record reveals that the complainant had filed the complaint No.291 of 3.5.2011 before this Fora, which was allowed vide order dated 21.11.2011 and the directions were given to the Ops to make functional the machine in question, so purchased by the complainant, in order to keep the true results or replace the same with new machine with the same make and model without charging any further cost except the balance amount of the total costs of the machine. Further directions were given to th the Ops that in case, they were unable to replace the machine in question due to any reason, they shall be liable to make refund of the amount so paid by the complainant qua the machine in question within stipulated period.  Further, Ops were directed to pay compensation and litigation costs compositely assessed as Rs.5000/- to the complainant on account of harassment suffered by the complainant and it was ordered that order was to be complied within 30 days from the date of receipt of copy of this order.

5.                Thereafter, applicant/Op2 had filed an appeal before the Hon’ble State Commission which was also dismissed vide order dated 30.04.2013 being barred by limitation. Thereafter, applicant/Op2 had filed a Revision Petition No.612 of 2013 before the Hon’ble National Consumer Disputes Redressal Commission, New Delhi and Hon’ble National Consumer Disputes Redressal Commission, New Delhi vide its order dated 17.09.2013 had passed the directions that in the second revision petition filed by Sanjiv Kalia-Dealer, there is a delay of 362 days, before the State Commission. As per compromise and as agreed to between the parties, the delay is condoned, subject to payment of Rs.5000/- in each case as costs to be paid by the petitioners, to the complainant Dr.S.C.Garg, through demand draft, directly, within a period of thirty days. The agreement reached between the parties on merits is that Shri.Sanjiv Kalia, who is the dealer, is not bound by the decree. He is discharged and his revision petition stands accepted. It is also agreed between the parties that the defective machine will be rectified by Lilac Medicare (P) Ltd. M/s Lilac Medicare and will lift the machine from the premises of the respondent, S.C.Garg, within three weeks and machine will be sent back, rectified, within one month thereafter, or in case, if it has to be sent to USA, where the actual manufacturer resides, then, in that case within three months thereafter. It has been agreed that the rectified machine working properly, would be handed over to the complainant, within a period of three months and three weeks or in the alternative, the entire amount paid towards the machinery would be paid back to the complainant with interest @6% per annum. It is also directed that the complainant, after receipt of the said machine, will pay the residual cost of the total amount, in three installments within a gap of one month, each. The first installment be paid, within one month, after the receipt of the machine.

6.                Perusal of the aforesaid order of the Hon’ble National Commission reveals that there was specific directions to the respondent/Op2 to rectify the machine and respondent/OP2 will lift the machine from the premises of the complainant Dr.S.C.Garg, within three weeks and machine will be sent back, rectified, within one month thereafter or, in case, if it has to be sent to USA, where the actual manufacturer resides then, in that case, within three months thereafter, meaning thereby that respondent/OP2 was to lift the machine upto 8.10.2013. However, respondent/OP2 did not lift the machine on 8.10.2013.

7.                During the course of arguments, learned counsel for the respondent/OP2 has relied upon copy of letter dated 8.10.2013, vide which, the alleged intimation to lift the machine on 10.10.2013 was given and further, relied upon another copy of letter dated 10.10.2013 which was allegedly written to Dr.S.C.Garg. However, respondent/OP2 has failed to place on record any corroborative evidence, from which, it could be presumed that representative of respondent/OP2 has ever visited the premises of the complainant Dr.S.C.Garg in order to lift the machine in compliance to the order passed by the Hon’ble National Commission. Furthermore, it is very much clear from the application of the respondent/OP2 that they themselves did not deposit the costs of RS.5000/- as imposed by the Hon’ble National Commission. Further, it is proved on record that till date, respondent/OP2 has not lifted the machine from the premises of Dr.S.C.Garg due to the reason best known to them.

8.                 Perusal of the record further reveals that thereafter, again respondent/OP2 had approached before the Hon’ble National Commission with the motive to get the period extended. However, vide order dated 13.12.2013, it was observed by the Hon’ble National Commission that they have passed the consent decree vide order dated 17.9.2013 and this is a consent decree and only District Forum, the Executing Court can execute it. Liberty was granted to the respondent/OP2 to approach this District Forum, the Executing Court, for compliance of the decree. However, even thereafter, respondent/Op2 did not take any initiative steps to lift the machine in order to comply with the order of the Hon’ble National Commission.

9.                So, it appears that respondent/OP2 has deliberately and intentionally not complied with the order of the Hon’ble National Commission passed on 17.9.2013. Though, respondent/OP2 was under the legal obligation to comply with the aforesaid order. Neither, respondent/Op2 lifted the machine nor rectified the same nor provided any replacement of the machine to the complainant Dr.S.C.Garg. Hence, execution application moved by the respondent/OP2 appears to be devoid of any merit and the same is hereby disposed off. Copy of order be supplied to the parties free of costs. File be consigned to record room.

                  

                   (Babita)                          (Sat Paul Garg)              (R.L.Ahuja)                              Member                           Member                        President Announced in open Forum                                                                                     on 27.04.2015                                                                                             Gurpreet Sharma