This appeal is preferred against the Final Order of Ld. DCDRF Coochbehar, dated 27-11-2017 in CC. No. 97 of 2016.
The fact of the case in nut shell is that the Respondent/ Complainant, a Govt. teacher, posted at Hooghly, on 09.06.2012 placed an order to the appellant for purchasing some household furniture made with Sagoon wood at a price of Rs. 31,500/- and advanced Rs. 2000/- on July, 2012 to confirm the deal. The OP, manufacture of wooden furniture, agreed to manufacture and sell the same to the Complainant /Appellant. The complainant made further Payment through Banking system Rs. 29,000/- and Rest 500/- in cash in Nov, 2013.
The complainant repeatedly requested to deliver the said items, But the op has failed to do so. So, he registered the consumer case. The OP after receiving notice of the case, recorded his presence before the Ld. forum ultimately, he did not contest the case by filing any W.V. So, the Ld. Forum has heard the case ex-parte and delivered the impugned award in favour of the Complainant / Respondent.
Being aggrieved with the order the appeal follows and in memo of appeal it is contended that since the Respondent was introduced to the Appellant by one of his teachers (Mr. Bhupti Chandra Dey Talabder) the Appellant never asked for advance for making that furniture and the Respondent taking this as an opportunity made payment of very negligible amount of Rs.500/- against the total estimate of Rs. 32,000/-.
That after a long time the Respondent all on a sudden made payment of Rs.2,000/- (Rupees two thousand only) on 20.05.2013 and asked for delivery of the said furniture.
That it is pertinent to mention here that the Appellant already finished making of the said formalities and applied for Transit Pass on 16.03.2013 for sending that furniture to the Respondent. After obtaining Transit Pass the appellant applied to the Forest Range Officer, Coochbehar-1 Range for 'No Objection Certificate' for transportation of wooden furniture on 08.11.2013 and after due inspection the Forest Range Officer granted 'NOC' Vide Ref No. 2517/COB-1/28(NOC) dated 08.11.2013 to the appellant.
That after completion of all legal formalities the appellant on 08.11.2013 requested the respondent to pay the balance amount and to take delivery of the aforesaid furniture. On 09.11.2013 the Respondent made payment of Rs.29,000/- to the bank account of the appellant and 10.11.2013 he personally came to the shop of the appellant along with a vehicle for carrying the said furniture to his house.
That it is pertinent to mention here that the Respondent on 10.11.2013 by paying balance amount of Rs.500/- by cash took delivery of the said furniture in presence of said Mr. Bhupati Chandra Dey Talabder.
That the Complainant/ Respondent suppressing the aforesaid facts, designing and manufacturing a false story fraudulently and deceitfully approached the Ld. Forum with filthy hands tainted with mala fide intentions.
The appellant after receiving notice of consumer case had appeared and prayed for time to file his written version. The Appellant personally handed over all relevant documents relating to this case to his conducting lawyer at the Ld. Forum below but due to serious illness of the said Lawyers father he could not take steps on 14.03.2019 and he could not inform the appellant about it.
That the appellant was under an impression that the matter is being properly taken care of by his conducting Lawyer and he has submitted all documents and written versions before the Ld. Forum. The appellant got surprised when he came to know from Mr. Bhupti Chandra Dey Talabder that the Respondent has won the case. Thereafter the Appellant immediately started enquiring into it and applied for certified copy of entire Order Sheet. After obtaining such certified copy on 13.01.2020 the appellant came to know that the Order was passed ex-parte against him and his conducting lawyer did not even submit his written version.
The appeal was admitted in due course and notice was sent to the Respondent (Complainant) who has contested the appeal by filing W.N.A.
Appeal was heard in presence of both sides.
Decision with reasons: -
Admitted position is that the respondent while Posted at Coochbehar, placed an order to OP to purchase some wooden furniture to take the same to his original home at Hooghly and cost of furniture was fixed at Rs 32,000/- on 09.06.2012 token advance Rs. 500/- was paid on that day, Subsequently, Rs. 2000/- was paid on July 2013 through Bank and Rs. 29,000/- was paid on 09.11 2013 through bank and Rs.500 in cash also paid on the following day.
The Main dispute is that whether the furniture Ordered by the respondent was actually handed over to the respondent or not.
The History of the case is that before the impugned Final order, the consumer case was dismissed for default as the respondent could not Pursue the case by taking Proper steps. The respondent Preferred an appeal before this beach. The appeal was allowed and the instant consumer case was restored and Ld. Forum again Sent notice to the appellant (op.). He could not contest the case. for the reason mentioned in Memo of appeal.
During the course of hearing appeal, it is mentioned on the part of Ld. Advocate of the appellant that the appellant/Opposite Party on 09.03.2022 adduced evidence and filed his affidavit-in-chief along with Original No objection Certificate for transportation of wooden furniture from Coochbehar to Kolkata issued by the Range Officer, Coochbehar-I Range dated 08.11.2013.
It is further argued that from the evidence of the appellant/Opposite Party it is quite evident that after obtaining such no objection certificate the respondent/complainant came to the shop of the appellant on 10.11.2013 with a vehicle to carry the ordered iteams and took delivery of the ordered furniture.
It is further argued that it can also be presumed from the statement of the complainant that he paid the balance amount of Rs.500/- by cash on 10.11.2011 which means he personally came to the shop of the appellant to take delivery of the ordered furniture, and the furniture were delivered to him otherwise he would not have paid the balance amount of Rs.500/- to the appellant/Opposite Party.
It is contended on the part of the respondent (compliment), that the additions evidence, and documents (transit Pass and N.O.C. Of Forest department) Produced by the appellant are inadmissible and should not be accepted and the belated stage of appeal registered with intention to frustrate a bonafide consumer and to disturb the Process of execution case.
After hearing both sides, it is also established that the instant transaction between the Parties of this dispute was initiated on 9th June, 2012, and the major amount of consideration price was paid in Nov, 2013. The N.O.C. of Forest Dept. and transit pass produced by the appellant before this bench was obtained in Nov,2013 also.
It is also contended on the Part of the appellant that one colleague of the complainant, Mr. Bhupati Chandra Day Talabder had witnessed and negotiated instant transaction as Mediator and alleged that in his presence the complainant had taken delivery of the wooden items on 10.11.2013.
The appellant contended that due to ill-health of the father of his Advocate, the appellant could not defend his case before the Ld. forum and he was unaware while the case was disposed of ex-parte.
If we consider the case with in the factual aspects, we can take notice that the transit pass for carrying the wooden items for dispatch to Hooghly could be obtained on First week of Nov, 2013. The Respondent/Complainant paid Rs.29,000/- on 09.11.2013 and he personally paid Rs. 500/- in cash on spot on 10.11.2013. So, to achieve the purposeful Justice the documents like N.OC. of Forest Dept., Transit pass and the evidence of Bhupati Chandra Dey Talabder are very much vital and Ld. Forum had no opportunity to avail the said evidences as the matter was decided ex-parte.
So, for the interest of fair Justice, the appellant should get an opportunity to ventilate his grievances and arguments. before the Ld. Forum so that the doctrine and Principle of natural justice prevails.
Thus, the appeal should be allowed on its Merit.
Hence It is ordered,
That to appeal be and the same is allowed on contest without cost. The Final Order and judgement dated 27. 11. 2019 in C.C. No. 97 of 2016, delivered by DCDRF, Cooch Behar is set aside. The OP/ appellant is directed to file W.V and relied documents before the by forum in this case within 30 days. Ld. Forum shall re-open the case and accept the WV of it bites within 30 days and shall record evidences of the parties if desire and adjudicate the dispute after completion the process of hearing and shall pass Final Verdict of the case in merit. Let a copy of order be supplied to the parties, free of cast with a direction to appear before Ld. DCDRF, Cooch Behar on 18.08.2022 for re-open of the case.
Let a copy of this order be communicated to Ld. DCDRF, Cooch Behar for doing the needful.
