MANAGING DIRECTOR, CARGIL INDIA Vs. NARENDRA KUMAR RAYCHOUDHURY

JUDGEMENT

(1.) This revision petition and revision petition No.124, filed by the same petitioner against the same principal respondent were considered earlier and disposed of by this Commissions order dated 30.11.2005, in the following terms: Heard the learned counsel for the petitioner. None of the respondents are present despite service of the notice by publication and Shri N.K. Roy Choudhury, respondent has already filed an affidavit as well before this Commission. Consequently, the case is being proceeded ex parte against the respondents. This order shall dispose of two revision petition Nos. 124 and 125 of 2003. In both the matters similar questions of fact and law have arisen. The difference in the two matters relate to bank drafts (In R.P. No.124 of 2003 Bank Draft No. 574539 of Rs. 1,90,000 and in R.P.No.125 of 2003 Bank Draft No. 574511 of Rs. 2,35,000.) These petitions have been filed against the order passed by the Orissa State Consumer Disputes Redressal Commission, Cuttack holding the appellant and the respondent No. 2, Carrier jointly and severally liable to compensate the complainant by paying the amount of Rs. 2,00,000 and compensation of Rs.5,000 and costs of Rs.1,000 in C.D. Appeal No. 43 of 2002. State Commission further directed that complainant shall first proceed against the respondent No. 2 for recovery of the amount failing which against the present appellant. In C.D. appeal No. 427 of 2001 the District Forum allowed the complaints by directing the petitioner with respondent No.2 to jointly pay Rs. 2,50,000 with interest @ 12% from 23.8.99 along with compensation of Rs. 10,000 for harassment and mental agony and cost of Rs. 1,000. The appeal of the Petitioner was dismissed with cost of Rs. 2,000. The grievance of the petitioner in these two revisions is three folds. Firstly, the Palmolien Oil was purchased by the complainant respondent for the purpose of resale. He was a bulk purchaser, as is said to be evident from the notice served by the complainant dated 15.2.2000. Consequently, in terms of the judgment of this Commission in Synco Textiles Pvt. Ltd. v. Greaves Cotton & Company Ltd.1 held that the complainant was not a consumer and could not pursue the complaint. Secondly, there was no privity of contract between the complainant and the respondent and the broker who had been dealing with the complainant had not been made a party. Thirdly the amount of Rs. 2,00,000 along with compensation of Rs. 5,000 and costs of Rs. 1,000 could not have been awarded in petition No. 124 of 2003 and in C.D. appeal No. 43 of 2002. Similarly, in petition No. 125 of 2003 the amount of Rs. 2,50,000 with interest @ 12% from 23.8.99 along with compensation of Rs. 2,000 with cost of Rs. 1,000 + Rs. 2,000 could not have been awarded for the complainant in its composite notice dated 15th February, 2000 in respect of all the payments demanded only a sum of Rs. 71,527 with 12% interest p.a. in both the matters. As regards the first point, we find from the notice issued by Shri Laxmi Kanta Mishra, Advocate, Puri dated 15.2.2000 that the notice itself indicated that he was a bulk purchaser and he demanded only Rs. 71,527 vide the said notice. The reasons of demand are given as under: That, my client had delivered the above demand drafts to Arun Kumar Chakrabarty, the agent of your sub -broker Ashok Kumar Gupta/broker M/s. Phool Chand Gupta of Vizianagaram, of Rs. 1,85,000 (Rupees one lakh eighty five thousand) only. But to my utter surprise you had not sent the oil tanker till today though you have encashed the demand draft much before. That, my client had also sent 6 demand drafts to your company, details are given in the foot of this notice for which you had also delivered oil cargo to my client where there was a shortage of Oil to the tune of Rs.71,527 (Rupees seventy one thousand five hundred twenty seven) only. That, failing to send the oil tanker and failing to refund of shortage money through other 6 demand drafts of Rs. 71,527 (Rupee seventy one thousand five hundred twenty seven) only in total Rs. 2,56,527 (Rupees Two Lakh Fifty six Thousand five hundred Twenty Seven) only remain outstanding against you within fifteen days of receiving of this notice. I will take appropriate legal course of action against you with interest @ 12% p.a. till full satisfaction and you all will be held jointly and severally liable for the above money outstanding against you, please take note.

(2.) The order reproduced above was, however, recalled by the following order dated 16.4.2007 of this Commission: Heard on the application for review. The ground taken for review is that notice was not published for service on Narendra Kumar Ray Choudhury, the complainant. It may be mentioned that publication was made. Mr. P. Das, learned counsel appeared on 13.10.2003 on behalf of Narendra Kumar Ray Choudhury. On 12.3.2004 none appeared and the revision petition was dismissed in default. Thereafter, an application was moved for restoration. Notice was published in Statesman. The name of Narendra Kumar Choudhury was mentioned in the cause printed in the newspaper but in the cause title, name of Mr. Narendra Kumar Ray Choudhury, as such it was incomplete and his name was not included in the body of the notice. He did not appear and the impugned order dated 30.11.2005 was passed, ex parte against him. In the aforementioned facts, the application for review is allowed. We recall our order dated 30.11.2005. Issue notice to the other respondents as well by publication in Statesman, Kolkata edition, as prayed giving names of all the concerned persons, returnable on 16.11.2007. In the meanwhile, the complainant respondent Narendra Kumar Ray Choudhury shall not proceed in execution against the petitioner. However, Narendra Kumar Ray Choudhury will be at liberty to proceed in execution against respondent other than the petitioner, if the amount has not been recovered so far. A copy of this order be given dasti to the learned counsel for both the parties.

(3.) On the last date of hearing of these two petitions, order in respect of revision petition No.125 of 2003 was reserved and that on revision petition No. 124 of 2003 was passed as under: Heard the learned counsel for tile parties: There is some apparent and glaring inconsistency in the order passed by the State Commission, for the State Commission has observed as under: