KUNDAN KUMAR KUMAI

This is an appeal u/s 15 of the Consumer Protection Act, 1986, preferred against the order and judgement dated 07/12/2022, passed by the Ld. DCDRF, Siliguri in Consumer Case No. 16/S/2019.

Brief fact of the Appellant’s case is that, the Respondent No.1/Complainant had placed an order of mobile phone LENEVO KX Plus, with an extended warranty of one year, on-line, through his friend the Proforma Respondent on 13/09/2017, against payment mode being EMI. The payment was to be made from the Credit Card of the Respondent/Complainant, being maintained by the Appellant. Thereafter, the Respondent/Complainant cancelled the order and sought for deduction of the amount and credit to the A/c of the Respondent/Complainant, maintained with the Appellant/Bank. In this regard, the Respondent/Complainant, visited the office of the Proforma Respondent No. 3, which is the local office of the Proforma Respondent No.2 and also contacted the Proforma Respondent No.2 and could learn that the total amount had been refunded to the A/c of the Respondent/Complainant, maintained by the Appellant/Bank, by 21/09/2017. Thereafter, the Respondent/Complaint, contacted with the Appellant/Bank on a number of occasions for settlement of the dispute, but the Appellant/Bank asked for details of such transaction and ever after being supplied, failed to settle the dispute. Finding no alternative, The Respondent/Complainant lodged a complaint before the Ld. DCDRF, Siliguri with necessary prayers.

The Appellant/Bank did appear to contest the claim but as the WV could not be filed within the statutory period, the Case had proceeded ex-parte, against the Appellant/Bank.

After going through the evidence of the Respondent/Complainant and the other materials on record, the Ld. DCDRF, Siliguri had passed the impugned order directing the Appellant/Bank to re-adjust the loan amount and return the EMIs along with the interest charged on the loan amount, since 14/09/2017 with interest @ 12% along with 50000/- (Rupees fifty thousand) only, as compensation for mental pain, agony and harassment and Rs.10000/- (Rupees ten thousand) only as litigation cost, within two months failing which, interest @ 12% per annum, would be attracted. 

Being aggrieved by the impugned order the Appellant/Bank, preferred the instant appeal on the ground that the Ld. DCDRF, Siliguri, had erred in law and facts while passing the impugned order.

Decisions with Reasons

Ld. Advocate for the Appellant at the time of final hearing had submitted that the Ld. Forum below had, without providing an opportunity of being heard had passed the impugned order, in spite of the existence of the Resolution, passed by Siliguri Bar Association, to refrain from conducting any hearing. It was thereafter prayed that the impugned order be set aside.

Ld. Advocate for the Respondent No.1 on the other hand had countered that the instant appeal had been filed merely to delay the payment of the decretal amount, as the case had been decided ex-parte, when the Appellant failed to submit the written version within the statutory period and thereafter the question of the not being heard becomes irrelevant, as there was no defence made out.

None appeared on behalf of the other Respondents and the appeal had been taken up for ex-parte hearing.

After hearing both the sides and on perusal of the materials on record, it transpires that initially the case had not been admitted and following an appeal being FA/ 50/2019, the case had been restored with the direction upon the Respondents, the present Appellants and the Respondents 2 & 3 to submit their written version within 45 days, from the date of receipt of the copy of the order of FA/50/2019. The order-sheet of CC/16/2019, clearly shows that the order  had been placed before the Ld. Forum below, vide order no.05 dated 09/01/2022, indicating that the copy of the order of FA/50/2019 had already been received by the parties. But the direction passed in the FA/50/2019 to submit WV within 45 days was not complied, is reflected from the order no.08 dated 24/02/2020, wherein a direction for proceeding ex-parte, had been made when the written version had not been submitted within the said 45 days. Thereafter, the participation of the present Appellants does not appear to be found in the subsequent orders. Hence, the argument that the Appellants were affected by the pandemic as well as the Resolution passed by Siliguri Bar Association does not appear to hold much water. Moreover, no appeal was preferred before any of the Appellate Forums, indicating that this appeal was a half-hearted appeal and made merely to delay the inevitable.

The Respondent/Complainant had already suffered much due to the deficiency in service from the Appellant/Bank and as such there appears no ground for interference with the impugned order, from this end. As a result, the instant appeal fails.

It is therefore,

                                              ORDERED

That the instant appeal be and the same is dismissed on contest against the Respondent No.1 and dismissed ex-parte against the Respondent Nos. 2 & 3.

The impugned order is hereby upheld. The Appellant is directed to comply with the directions mentioned in the impugned order, without fail.

Copy of the order be sent to the parties free of cost.

Copy of the order be sent to the Ld. DCDRF, Siliguri for information.

Statutory deposits, if any, be returned from whom received.

Jt. Registrar, Siliguri Circuit Bench of WBSCDRC, to do the needful.