IN THE MATTER OF: M/S SUNJAY BIOTECH SOLUTION PRIVATE LIMITED, MUMBAI Vs. M/S. NAVDEEP BIOCEUTICALS, HILTOP INDUSTRIAL ESTATE, DISTRICT SOLAN

JUDGEMENT

(1.) This appeal is directed against the order of the District Forum, Solan, passed in Consumer Complaint No.131/2008, dated 10.7.2009, whereby the complaint of the complaint was allowed and the opposite party was directed to replace the instrument within 15 days. It was further directed that in case the opposite party fails to replace the said instrument, then they were directed to refund the entire amount of Rs.1,69,000/ - alongwith interest @ 9% per annum from the date of filing of the complaint i.e. 8.8.2009 till making full payment of the aforesaid amount and the damages to the tune of Rs.1500/ - were also awarded alongwith litigation cost of Rs.1,000/ -. Factual matrix of the case are that the complainant is a manufacturer of pharmaceutical formulations and opposite party is manufacturing concern of pharmaceutical instruments. Complainant had placed order for the purchase of various instruments vide order No.HR/PROJ/06 -07, dated 30.1.2007 for an amount of Rs.10,40,000/ - which includes sales tax @ 4%. Further averments in the complaint are to the effect that the complainant had paid an advance of Rs.26,000/ - vide DD of Indian Overseas Bank, Panchkula payable at Mumbai, dated 31.1.2007 and as per terms and conditions of the purchase order, it was agreed by the opposite party that 10% amount can be retained by the complainant against performance guarantee of the instrument which was to be released after being satisfied relating to the functioning of the instruments. It was also pleaded that one of the Cyber UV -VIS Spectrophotometer was not functioning properly since its installation, as such result of output which expected was much below from the standard instrument. Complainant had immediately informed the opposite party telephonically as well as through e -mail dated 2.5.2008 and requested them to rectify or change the instrument. Thereafter, opposite party had sent their representative to rectify the problem but the complainant was not satisfied and he again complained through e -mail dated 20.5.2008. However, opposite party had assured the complainant through e -mail to resolve the matter on priority basis. Opposite party had failed to do so inspite of various requests made by the complainant to rectify or change the instrument and thereafter legal notice was also issued to the opposite party by the complainant and opposite party was requested to rectify the problem or to change the defective instrument or to pay the cost of instrument after deducting 10% cost which was retained by the complainant i.e. Rs.1,69,200/ -. As such deficiency of service on the part of opposite party as pleaded. In this background complaint under Section 12 of the Consumer Protection Act, 1986 was filed for deficiency of service on the part of the opposite party.

(2.) In the present complaint notice of the complaint was issued to the opposite party through registered AD and the case was fixed for service of the opposite party on 24.10.2008 and the opposite party was proceeded against ex -parte by the Forum below which fact is apparent from the order dated 24.8.2008 passed by the District Forum below, whereby the Forum below had observed that notice to the opposite party was issued on 29.8.2008 and registered AD has not been received back delivered or otherwise and period of more than one month is over and as such presumption is available that notice must have been delivered to the opposite party, as such opposite party was proceeded ex -parte in the case and thereafter case was fixed for ex -parte evidence.

(3.) Brief resume of evidence led by the complainant in the present case is that the complainant in support of his case has filed his own affidavit and placed reliance upon various documents, Annexures C.1 to C.6. Annexure C.2, C.4 and C.5 are the legal notices served in this case to the complainant and annexure C.1 is the copy of purchase order and Annexure C.3 is the reply sent through e -mail and Annexure C.6 is the reply sent by the opposite party to the legal notices.