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THE XEN, PHED, Drilling & Hand Pump Division, Jodhpur has filed this complaint against M/s. New Asian Trading Company, New Delhi praying for the grant of the following reliefs against the opposite party: - (1) that the two defective bits may be replaced by new bits or the opposite party should be directed to refund the price amounting to Rs. 1,15,741.69 together with interest to the complainant. (2) Compensation may also be awarded.
THE opposite party gave offer to the Additional Chief Engineer, Technical PHED, Jaipur for the supply of Tricone Rock Roller Bits against Tender No. P/T-81-82 due for opening on 29.4.1982. THE terms of offer were contained in the letter dated 26.4.1982 with respect to price, taxes & duties, make, pin connection type, delivery, payment terms, insurance, validity and earnest money. THE terms and conditions were contained in the tender dated 29.4.82. Vide letter dated 19.7.1982 the Additional Chief Engineer (Mech.), PHED, Jaipur approved the rates as per Annexure-A. THE terms and conditions in respect of prices, sales tax, excise duty, delivery pd., price variation clause, freight, inspection, performance, completion, inspection, payment, compensation, agreement etc. are also contained in it. For two numbers the amount mentioned is Rs. 99,380/- at the rate of Rs. 49,690/- per bit. An agreement was signed between the parties on 19.8.82. THE Bits were sent to the site for trial under the supervision of Assistant Engineer, Drilling & Hand Pump Sub Div., Pali. He informed on 6.10.83 that the Bits were jammed after drilling 1.5 MT, 4.5 MT respectively and they could not free them after making good efforts. THE opposite party was requested to send the Technical Engineer or replace the Bits immediately. In reply the opposite party stated that the bits were supplied by it against the supply order and the bits having been stated to be given less metrage. THE following is written:- "In this connection we are requesting the Executive Engineer for sending the bits to our workshop for necessary rectification and in case the bits will be found beyond rectification we will replace these bits."
In reply to this letter the XEN Drilling & Hand Pump Division informed the opposite party that the bits can only be sent to the opposite party after depositing the amount Rs. 1,15,741.64 which was drawn by the opposite party against invoice No. 19 dated 21.9.82. Thereafter letter dated 20.7.84 was sent by the opposite party making reference of the letter: "We are requesting Executive Engineer Drilling & Hand Pump Divn., PHED, Jodhpur to kindly send the bits on To Pay basis for repairs in our factory at C-1, Sector XI, NOIDA Industrial Complex, Distt. Ghaziabad (U.P.) and these bits will be sent back to them after rectification. The proforma was sent to the Executive Engineer, Jodhpur for giving the details so that proper repairs or rectifications could be done by the factory. We would like to once again assure you that we will do our best to satisfy you and if necessary, replacement of the bits will be given."
It is clear from the letter dated 20.7.84 that the opposite party assured that the Bits will be set right and if necessary replacement of the bits will be done. In reply to this letter the Additional Chief Engineer (Mech.), PHED asked the opposite party for bank guarantee for Rs. 1,16,000/- in favour of the Executive Engineer, Drilling & Hand Pump Dn., PHED, Jodhpur so that the defective Bits may be sent to it as proposed by it. An alternative offer was given that in case this is not acceptable, the opposite party may deposit two fresh R.R. Bits and the bank guarantee shall be returned to the opposite party on receipt of bits duly repaired/reconditioned. The letter dated 5.10.84 written by the opposite party to the Chief Engineer, PHED is important. "In this connection, we would like to state that our Principals M/s. Precision Drilling Equipments (I) Pvt. Ltd. have agreed to replace the bits. In order to avoid double payment of Excise Duty, we request you to kindly send the bits stated to have given unsatisfactory performance through your representative to our principals factory who in return will handover the two bits as replacements. Kindly let us know in advance as to when your representative will bring the bits so that we may instruct our Principals to keep the bits required for replacement ready."
FROM this letter it is clear that the opposite party requested the complainant to send the bits which according to the complainant were giving unsatisfactory performance through representative to the Principals factory who have assured that in turn will handover the two bits as replacement. Letter dated 17.10.1986 is the last letter on record received from the opposite party. Reference was made to the local agent Shri Ajitmal Bhandari, who was to contact the XEN so that the Bits required for replacement could be sent to the principals factory for rectification etc. Again an assurance was given that all needful will be done to remove the defects, if there are any defects in the bits supplied by the opposite party. After that there are no letter of the opposite party but on behalf of the complainant letter dated 12.8.87 to the Addl. Chief Engineer was sent to take early action in the matter. Thereafter letter dated 19.10.87 was written to the opposite party in which the opposite party was asked to intimate the date on which the Bits would be ready for being replaced, so that they may be sent to the office to Jodhpur. Reply was sought within 7 days from the date of the issue of the letter. No reply was received. So a letter dated 21.11.87 was written stating that the reply is awaited and immediate action may be taken for the replacement. As nothing was done the complainant sent the complaint under Sec. 17(a)(i) of the Consumer Protection Act, 1986 ("the Act") which was received on 23.7.90. After the receipt of the complaint notice was ordered to be issued on 26.6.91 to the opposite party. A perusal of the order sheet dated 8.8.91 shows that a letter was received by registered post from the opposite party that for the reasons mentioned therein, date of hearing may be refixed giving one month''s time. On 8.8.91 the case was adjourned to 21.9.91. It was recorded on 21.9.91 that the opposite party has not filed the version of the case, and, therefore, the complaint will proceed ex-parte against the opposite party. On behalf of the complainant, affidavit of Shri Hero K. Dhankani was filed. A direction was given on 28.11.91 that the complainant shall deliver the copy of the affidavit to the opposite party and obtain receipt. Arguments on the complaint were heard on 16.1.92. As despite service of notice, no version of the case was filed resisting the complaint. Two points arise for our determination in the complaint:- (1) whether on the basis of the complaint dated 23.7.90 the complainant is entitled to the reliefs mentioned in the complaint; and (2) if so to what relief?
PLEA of limitation has not been set up by the opposite party. The offer given by the opposite party was valid upto 29.4.1982. The entire material was to be despatched from ready stock but latest 3-4 weeks from the date of receipt of material. Agreement shows that the delivery was to be effected and completed within a period of four weeks from the date of receipt of the amendment to Clause 11 - payment terms. A perusal of the letter dated 10.10.83 shows that the two Bits were received and they were put to work and certain defects were noticed. Letters were exchanged between the parties which clearly show that the opposite party assured that if there are any defects in the two Bits rectification would be done and if necessary replacement will be made. The last letter dated 17.10.86 shows that the complainant was assured that all needful will be done to remove the defects, if there are any defects in the Bits supplied by the opposite party. The complaint as stated above was received three years after the letter dated 17.10.86 as it is dated 23.7.90. The opposite party stipulated that the Bits are workable and subject to the conditions, there was a warranty for them. The Bits were purchased by the complainant. They were defective and time and again as appears from the letters, assurance was given that if the Bits are found beyond rectification, they will be replaced. The last letter dated 17.10.86 shows that the opposite party assured that all needful will be done to remove the defects, if there are any in the Bits supplied by them and as the defects were not removed the complainant filed the complaint for the reliefs stated above. However in Agnes D'' Mello v. Canara Bank and Another, I (1992) CPJ 335 (NC) the National Commission has observed as under:- "2. On going through the pleadings, we find it averred that after the occurrence of the incident, the bank kept on informing the complainant from time to time that the whole matter was being investigated by them and that the incident had also been reported to the police and that action was being pursued by the Police also. Unfortunately, those investigations carried out by the Bank as well as by the Police did not produce any concrete results and it was on coming to know about such failure that the petitioner approached the State Commission with the complaint petition claiming compensation. It would, thus appear that the petitioner was lulled into a state of in-action by giving her a false sense of hope of retrieving the jewellery by such representations made to her and it was in these circumstances that she refrained from initiating action under the Consumer Protection Act before the State Commission immediately after her coming to know of the incident. Such being the case, we consider that it was wrong on the part of the Bank which is a Public Sector Undertaking and thus an instrumentality of the State, to resist the petitioner''s prayer for adjudication of her claim by putting forward the plea of limitation. Time and again, it has been pointed out by the Supreme Court of India that it is not proper that the Government and instrumentalities of State should seek to avoid the adjudication of a claim made against them merely on the technical plea of bar of the limitation when there has not been any manifest and deliberate lached on the part of the citizen putting forward the claim.
"3. The Limitation Act in terms does not apply to the proceedings before the Consumer Protection Forums and this Commission has been applying the rules incorporated in the Act only on the ground that it will not be conducive to public policy and public good to have stale claims brought up for adjudication after lapse of long periods of time thereby depriving the public of a sense of security and certainty that old matters which have become settled and stale by long lapse of time will not be allowed to be re-opened. It is certainly not in furtherance of public policy nor in the interests of public good that the Governmental Agencies like Public Sector Banks should obstruct the investigation of claims made against them by a party in circumstances such as in the present case by putting forward the plea of limitation."
This was followed in S. Vellinayagam & Co. v. New India Assurance Co. Ltd., I (1992) CPJ 313 (NC). The ratio of two decisions is that the Limitation Act in terms does not apply to the proceedings before the Consumer Protection Forums and that the National Commission has applied the rules incorporated in the Limitation Act only on the ground that it will not be conducive to public policy and public good it comes to have stale claims brought up for adjudication after lapse of long periods of time. In the circumstances such as in the present case, from the date of the purchase until the letter dated 17.10.86 the opposite party has given assurance to the complainant either to remove the defects or to replace the bits. As nothing was done, the complainant was compelled to send the complaint dated 23.7.90. In these circumstances the claim made by the complainant cannot be characterised as a stale claim for the remedy had become barred under the Limitation Act, 1963. The case in hand is not of a nature which can be characterised as settled by long lapse of time so as to reopen it. The opposite party has been assuring that the Bits would be rectified or replaced. The principles laid down in Sec. 3 of the Limitation Act, 1963 which are applicable to suits are not applicable to the complaint under Sec. 12 read with Sec. 17(a) of the Act.
THE question is whether the two Bits Tricone Rock Roller Bits were defective. A perusal of the letter dated 10.10.83 shows that the Bits were jammed after drilling 1.5 MT and 4.5 MTs respectively and they could not be free after making efforts. In the letter dated 9.12.83 the opposite party wrote that the XEN would be sent for seeing the Bits for necessary rectification. In none of the letters the opposite party has written that the Bits did not have the defects pointed out by the complainant and it is not necessary to rectify. In these circumstances there is no escape from the conclusion that the bits supplied were defective. THEre is an agreement signed by both the parties with respect to the terms and conditions. THE complainant had apprised more than once that they have not been rectified though technical expert was deputed who inspected the bits and carried out certain rectification. But the Bits did not work satisfactorily even after the rectification. THE Bits supplied were defective for they did not work properly. THE price was paid. THE complainant (purchaser) who is a consumer is entitled to the direction against the opposite party that it should replace the two Bits in place of the two old Bits supplied against the supply order within one month from the date of the receipt of the order. On supply of two new Bits, in place of the old two Bits, the complainant shall deliver the old Bits to the opposite party. In case the two Bits are not replaced the complainant will be entitled to Rs. 1,15,741.64 which were paid to it in advance for the purchase of the Bits. If the Bits are not replaced and Rs. 1,15,741.64 are not paid within one month from the date of the order the complainant shall be entitled to interest @ 12% p.a. on this amount from the date of the expiry of one month from the date of the receipt of the order until realisation.
THE complaint is decided as indicated above. As the opposite party has not contested the complaint. THEre will be no order as to costs. Complaint allowed. ______________