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Judgment
All these appeals arise out of single order of learned State Commission; hence, decided by common order.
These appals have been filed by the appellant against the order dated 27.08.2014 passed by the Mahrashtra State Consumer Disputes Redressal Commission, Mumbai (in short, ''the State Commission'') in CC Nos. 12/106-110 M/s. Ganesh Textiles and other textiles Vs. Itema (Shanghai) Textile Machinery Co. Ltd. & Ors. by which, complaints were dismissed.
Brief facts of the case are that an agreement dated 20/07/2008 was executed between each complainant/appellant and Itema (Asia) Ltd. Each complainants purchased two machines at the cost of the US$1,20,480. Manufacturer of the machinery are Itema (Shanghai) Textile Machinery Ltd. based at 98, Done Xing Road - Songiang Industrial Zone, Shanghai 201613 China. Installation of the machinery was complete in all sense by 12/02/2009. From the inception, mechanical, electronic and software problems crept in and therefore, the machinery could not work properly with its full strength as promised at 360 RPM. Repeated complaints addressed to Itema Weaving (India) Pvt. Ltd. based in Mumbai (presumed to be branch of main opponent, namely, Itema (Shanghai) Textile Machinery Ltd.) were sent to redress the problem to restore smooth working of the loom machines. With the help of engineers from Coimbatore, opponents carried out certain repairs to the machines during the period from 20/06/2009 to 22/10/2010 on several occasions yet the correctness of the problem to ensure full scale working at 360 RPM could not be achieved. Complainants were supplied defective machinery by indulging into unfair trade practice. It was further pleaded that machines were purchased by each complainant exclusively for earning his livelihood by means of self-employment. Alleging deficiency on the part of OPs, complainants filed complaints before learned State Commission. OP/Itema Weaving (India) Pvt. Ltd. resisted complaint and submitted that complaint is liable to be dismissed for non-joinder and misjoinder of necessary parties as M/s. Itema (Asia) Ltd. and M/s. Itema (Shanghai) Textile Machinery Ltd. have not been impleaded as parties. It was further submitted that M/s. Itema Weaving (India) Pvt. Ltd. is not Branch Office of M/s. Itema (Shanghai) Textile Machinery Ltd. It was further submitted that complaint was barred by limitation and prayed for dismissal of complaint. Learned State Commission after hearing both the parties, dismissed complaints against which, these appeals have been filed.
Heard learned Counsel for the parties finally at admission stage and perused record.
Learned Counsel for the appellant submitted that inspite of impleading M/s. Itema (Shanghai) Textile Machinery Ltd., learned State Commission committed error in dismissing complaints for non-impleading M/s. Itema (Shanghai) Textile Machinery Ltd. as a party; hence, appeals be allowed and impugned order be set aside and matter may be remanded back to learned State Commission. On the other hand, learned Counsel for the respondent also admitted that without service of notice on M/s. Itema (Shanghai) Textile Machinery Ltd., complaints were dismissed and they have no objection in remanding the matter back to the learned State Commission.
Perusal of complaints reveals that OP has been described as under: ITEMA (SHANGHAI) TEXTILE MACHINARY CO. LTD.,
98, DONE XING ROAD-SONGIANG INDUSTRIAL ZONE
SHANGHAI - 201613 CHINA,
THROUGH ITS BRANCH OFFICE AT
ITEMA WEAVING (INDIA) PVT. LTD.,
KAMYOG BUILDING, PARSI PANCHAYAT ROAD.,
ANDHERI (EAST), MUMBAI 400 069
Perusal of name of OP makes it clear that M/s. Itema (Shanghai) Textile Machinery Ltd., was impleaded as party, but has been sued through its Branch Office at M/s. Itema Weaving (India) Pvt. Ltd. whereas as per written statement filed by M/s. Itema Weaving (India) Pvt. Ltd. it is not Branch of M/s. Itema (Shanghai) Textile Machinery Ltd.
It appears that no notice has been issued to M/s. Itema (Shanghai) Textile Machinery Ltd. inspite of being impleaded as OP and learned State Commission wrongly observed that M/s. Itema (Shanghai) Textile Machinery Ltd. has not been impleaded as a party whereas, it has been impleaded as a party.
In such circumstances, appeals are to be allowed and matters are to be remanded back to the learned State Commission with direction to send notice to M/s. Itema (Shanghai) Textile Machinery Ltd. as OP on the address of Shanghai shown in the complaint, but not through M/s. Itema Weaving (India) Pvt. Ltd., as it is not Branch Office of M/s. Itema (Shanghai) Textile Machinery Ltd.
Consequently, appeals filed by the appellants are allowed and impugned order dated 27.08.2014 passed by the learned State Commission in CC Nos. 12/106-110 M/s. Ganesh Venkatesh, Mahalaxmi, Balaji, Tirupati Textiles Vs. Itema (Shanghai) Textile Machinery Co. Ltd. & Ors. is set aside and matters are remanded back to learned State Commission to decide complaints as per law after issuing notice to OP/ Itema (Shanghai) Textile Machinery Co. Ltd. on the address of Shanghai, China.
Appellants are directed to appear before learned State Commission on 1.12.2015.