BAJRANG BALI BRICK KILN COMPANY Vs. SATYAVEER ARYA

JUDGEMENT

(1.) Justice M. R. Agnihotri, President-In this appeal filed by M/s. Bajrang Bali Brick Kiln Company, Ladwa, order of the learned District Forum, Hisar dated 17th of October, 1994, has been challenged mainly on the ground that the complaint filed by the respondent-Satyaveer Arya, Advocate, Hisar has been allowed without first ensuring the service of the complaint on opposite party No.2 Mr. Suresh Kumar and without affording to the appellants-opposite party an adequate opportunity of producing their documentary evidence on record, as also without deciding the questions regarding the maintainability of the complaint as the dispute between the parties being a complicated one deserved to be decided only by a Civil Court.

(2.) Briefly stated, respondent-Satyaveer Arya, an Advocate of Hisar approached Mr. Makhan Lai and Mr. Suresh Kumar-opposite parties No.1 and 2 for the supply of bricks required for the construction of certain buildings. For that purpose, he made advance payment on 16th of December, 1991 and entered into an agreement with the opposite parties. According to the complainant, opposite parties No.1 and 2 Makhan Lai and Suresh Kumar, were the partners of M/s. Bajrang Bali Brick Kiln and were responsible for the delivery of 7,00,000 bricks to him, but only 40,000 bricks were supplied by them by 16th of December, 1992 and that too of sub-standard quality. Aggrieved against this non-performance of the contract, the complainant approached the District Forum for the refund of the amount of Rs.4,62,000/- with interest and costs etc. Notices were issued by District Forum to the opposite parites Nos.1 and 2 but the registered letter issued to Mr. Suresh Kumar-opposite party No.2 was received back by the Registry of the District Forum as undelivered, with the report that he was not available at the said address. Without taking any further step to effect service on the unserved opposite party-Suresh Kumar, learned District Forum proceeded ex-parte against him, as would be evident from para 3 of the impugned order dated 17th of October, 1994 itself, as reproduced below :-

(3.) So far as the appellant Makhan Lai opposite party No.1 is concerned, he filed his reply raising number of preliminary objections as well as by contesting the complaint on merits. In nutshell, it was pleaded that the complainant was not a consumer and he had no locus-standi or legal right to maintain the complaint before the District Forum as the alleged dispute was in the nature of commercial transaction arising out of the breach of contract. It was further pleaded that the writing dated 16th of December, 1991 was a forged document and was never executed by the opposite party nor was the amount of Rs.4,90,000/- as alleged by the complainant ever received by him. Proceeding further it was also pleaded, that a false and frivolous complaint under Sections 467, 468 and 402 of the Indian Penal Code had also been filed by the complainant with the same cause of action and subject matter of litigation. It was also pleaded that the relations of the complainant with the opposite party being very friendly and cordial in the past, it was a breach of confidence on the part of the complainant, who had taken away the entire documents i. e. bill books and ledger etc. , which werestill in his possession and he was mis-using the same. Finally, it was also pleaded that the District Forum had no jurisdiction to entertain the complaint since the dispute did not fall within the definition of "consumer" and the matter being complicated one involved serious questions of law and fact, which could be properly adjudicated only by the Civil Court. Learned District Forum after considering the matter allowed the complaint by coming to the conclusion mat against the supply of 7,00,000 bricks for a consideration of Rs.4,90,000/- only 40,000 bricks had been supplied and as such after deducting its price amounting to Rs.28,000/-, the opposite parties were directed to refund the amount of Rs.4,62,000/-.