KOLSITE MACHINE FABRICLTD Vs. STATE OF BIHAR

JUDGEMENT

(1.) SINCE common facts and questions of law are involved in these two revision applications, they have been heard together and are being disposed of by this common order.

(2.) WHEREAS in Cr. Revision No. 160/97R Satya Narayan Gopilal Kabra, the Managing Director of M/s. Kolsite Machine Fabrik Ltd. Bombay is the petitioner; in Cr. Rev. No. 166/97R the Company itself is the petitioner being represented by its office superintendent.

(3.) BEFORE adverting to the submissions advanced on behalf of the parties brief facts of the case are necessary to be stated : The opposite party No. 2, Rajendra Kumar Agrawalla, the proprietor of Sri Shyam Industries, filed a complaint alleging, inter alia, that one Om Prakash Agrawalla of Bistupur supplied brochures and the complainant came across of the advertisement which were issued by the petitioner Company for sale of machines for making polythene bags. The petitioner Company was approached through a letter requesting it to supply a Kolsite Bag Maker Model KMF 172500 having bottom seal as advertised by the Company. A sum of Rs. 50,000/ by way of bank draft was sent by the complainant in favour of the company by way of advance payment for supplying the same. Terms and conditions for supply of the said machine including the approximate cost was conveyed to the complainant by letter dated 15.1.92. Accordingly, the company despatched the machine to be delivered to the complainant but the machine was ultimately delivered to him on 23.4.92 after payment of its price, freight charges and other expenses. The complainant alleged that right from the time of installation of the machine by the Engineers of the Company it was not functioning properly as per the assurances given to him by the said Company. Instead of producing the finished products it was subsequently found that the machine was producing waste materials due to manufacturing defects. It was further alleged that though in the perform invoice the machine had been described as 18 inches Bottom Seal Bag Maker, but the machine which was supplied to him was of different design. The machine gets heated and the sealer does not function as a result, the opening also gets sealed. The complainant has come to learn that the machine is a mere scrap skeleton. The complainant has further alleged that another fault has been perpetrated by the accused as would be evident from the pamphlet as two meters have been shown but the machine supplied to the complainant is different one with three meters. The price of Bag Maker Machine in the proforma invoice was quoted at Rs. 2,40,500/ as because the machine was with two side sealing. The Company deputed its service engineers but they also could not rectify the defect and the machine is lying idle without giving any desired result and no sign improvement. The complainant ultimately moved the Consumer Forum under the Consumer Protection Act claiming damages/compensation which has been registered as case No. 7/93 and is still pending. It is said ihat as because the complainant was perusing his remedy elsewhere he could not file this case earlier but realising that the accused could not mend their ways, the complaint has been filed before the Magistrate. It is also alleged that the complainant has come to know that the accused has deceived many others at Calcutta and other places in the manner the complainant has been cheated.