BEFORE THE HON
BEFORE THE HONBLE STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI
First Appeal
No.382/2010 Date of filing: 08/04/2010
In Consumer Complaint
No.320/2009 Date of order: 28/07/2010
District Consumer Disputes
Redressal Forum, Nashik.
M/s.Aniket Enterprises,
Through its Proprietor
Shri Sanjay Ganesh
Malpathak,
R/A 3/102, Devdaya
Nagar,
Shastri Nagar, Pokharan
Road No.1,
Thane (W).
..Appellant/
(Org. Complainant)
V/s.
Deepak R. Shah and Co.
Through Bhadresh Deepak
Shah,
R/A Behind Kaveri
Hotel,
Pune Road, Dwaraka,
Nashik.
..Respondent/
(Org. Opposite Party)
Quorum:
Shri P. N. Kashalkar, Honble Presiding Judicial Member.
Smt. S. P.
Lale, Honble Member.
Present:
Mr.Vijay Bolinjkar, Advocate for the Appellant.
Mr.U.B. Wavikar, Advocate for the
Respondent.
-:
ORAL ORDER
:-
Per Shri P.N. Kashalkar,
Honble Presiding Judicial Member:
(1)
This
appeal has been filed by original Complainant whose complaint was dismissed by
the Forum below simply on the ground that Opposite Party had made allegation of
fraud against the Complainant and the question of fraud cannot be decided by the
Forum below and therefore, Forum below without bothering to decide the complaint
simply dismissed the complaint and directed the Complainant to approach Civil
Court for redressal of his grievance. As such, Complainant has filed this
appeal.
(2)
Upon
hearing both the Advocates, we are finding that Complainant had purchased Piling
machine from Opposite Party for Rs.62,438/-. The payment was made by pay
order. Machine was purchased, but, since Complainant found that machine was not
supplied by the Opposite Party and therefore, he filed consumer complaint
alleging deficiency in service on the part of the Opposite Party.
(3)
Opposite Party in its written statement pleaded that he made whole refund of
monies to the Complainant on cancellation of the order by the Complainant, so
nothing was payable and complaint was absolutely false. He had also mentioned
that there was fraud being committed by the Complainant and therefore, he
pleaded that complaint should be dismissed with costs.
(4)
The
Forum below upon observing that there was allegation of fraud made by the
Opposite Party in his written statement, simply passed order of dismissal and
directed Complainant to approach Civil Court. Aggrieved by this order, the
original Complainant has filed this appeal.
(5)
Upon
hearing both the Advocates we are finding that the Forum below has resorted to
shortcut method. In fact there was nothing in the complaint lodged in the Forum
below which would have prevented Forum below from deciding the complaint on
merit. It was simply case of non-delivery of machine despite full payment made
by the Complainant. Whereas the contention of the Opposite Party in his written
statement was that, since machine was not acceptable to the Complainant he had
refunded the full amount to the Complainant. So, this is purely a case of
allegation of non-delivery of machine by the Complainant and counter allegation
of the Opposite Party that he had refunded the monies back, so this was simply
case which could have been decided by the Forum below, but, Forum below thought
it fit to direct Complainant to approach Civil Court, saying that complaint
involved allegation of fraud. We are finding that the order passed by the Forum
below is per se bad in law and cannot be sustainable in law. This type of
rejection of the complaint by the Forum below by its impugned judgement dated
12.03.2010 is improper and therefore, by allowing this appeal, the order passed
by the Forum below will have to be quashed and complaint will have to be
remitted back to Forum below for deciding the complaint in accordance with law.
Hence, we pass the following order:
O
R D E R
(i)
Appeal
is allowed.
(ii)
Impugned order of rejection of complaint is quashed and set aside.
(iii)
Complaint No.320/2009 is remitted back to District Consumer Disputes Redressal
Forum, Nashik.
(iv)
Both
parties are directed to appear in the Forum below on
28/09/2010.
(v)
Forum
below shall decide the complaint on merit and Forum below is expected to dispose
of the complaint within 60 days from the date of appearance of the parties
before the Forum below.
(vi)
Parties are left to bear their own costs.
(S.P. Lale) (P. N.
Kashalkar)
Member Presiding
Judicial Member
ep