H.C.L. vs BRIJESH KUMAR

IN this bunch of cases, this is an instance of repetitive failure on the part of the H.C.L. Limited to deliver a proper machine for which the complainant Sri Brijesh Kumar obtained loan from U.P. Anusuchit Jati Avam Vitta Vikas Nigam Limited, Bahraich.

APPEAL No. 629/1996 has been filed by the H.C.L. Limited against the judgment and order dated 5.4.1996 in Complaint Case No. 383/1995. Having purchased machine from H.C.L. Ltd. for the sum of Rs. 1,02,232.64 on 21.6.1995 what was destined for the complainant was that the machine is not working properly. The complainants were not adhered to with the result that he had to rush to the District Forum, Bahraich. By the aforesaid order dated 5.4.1996, it was directed that the sum of Rs. 1,02,232.64 shall be returned by taking back the machine. The payment was directed to be made to the aforesaid U.P. Anusuchit Jati Avam Vitta Vikas Nigam Limited (for short "Financial Institution") to be adjusted towards the loan account of the complainant. A sum of Rs. 1,000/- was allowed to be paid as costs. It was further held that no liability was fixed on the said Financial Institution.

The admitted position now is that the company chose to change the machine. But it was the beginning of yet another innings for the complainant, the changed machine also was as defective as the former one. The result was that he went on making complaint after complaint, this time nine complaints to the company but with no result. No other but the same choice had to be exercised by the complainant of going to the District Forum with the second complaint. By an order dated 23.4.1999 the District Forum, allowing Complaint No. 13/1997 relating to the second machine, directed that Rs. 1,02,232.64 should be paid with interest @ 18% per annum with effect from 31.10.1996 if the photo-copier machine was not made in workable condition within a month. This order has been challenged by the company in Appeal No. 1268/SC/1999 which has been entertained in the Commission on 13.9.1999. No interim order has been obtained by the company till date. The period of one month as was provided in the aforesaid order dated 23.4.1999 has expired long, long ago.

WITH these two matters arising out of primarily one transaction between the complainant and the company, both have been clubbed for adjudication and are being heard together. Mr. B.S. Banthia assisted by Mr. Anil Kumar Mishra have been heard at great length. Mr. Abhishek Ranjan has filed his Vakalatnama on behalf of the complainant Mr. Brijesh Kumar in both the matters. In both the appeals U.P. Anusuchit Jati Avam Vitta Vikas Nigam Limited is a party on whose behalf Mr. Ranjan roy, Advocate has filed Vakalatnama. He is contending that in case Appeal No. A/1268/AC/1999 does not meet with success so far as the company is concerned, the amount decreed by the District Forum should be ensured to be paid to the said Financial Institution.

THE main thrust of the argument of Mr. Banthia and Mr. Mishra was that no sufficient proof exists about the defects in the second machine which was supplied admittedly by the company. A look at the complaint tells the agony through which the complainant went having received the second machine also. Three months period was granted by the company for free maintenance/servicing should there be any defect. This was highlighted as one of the reasons why it may be presumed that the machine was not defective at all. There is absolutely no reason to deny the averments of the complainant that the second machine also met with same fate as the first one. His affidavit on this issue along with the averments in the complaint which have been sworn as true by him indicate that he could not use the second machine for which he had obtained the loan from the said Financial Institution. In view of what has been discussed above, the allegations of the complainant stands fully proved and justified by the evidence produced by him and the contrary arguments advanced by the ''company's Counsel is hereby rejected.

THE last argument of Mr. Banthia was that the Commission may direct compliance of the first alternative in the judgment of the District Forum and permit one month's time to change the machine again or to repair it to workable order. THE said request has been opposed tooth and nail by Mr. Abhisekh Ranjan. He says that his client has no intention to go to the Court for the third time and, therefore, he insists that cash payment should be made so that the loan liability be squared off.

IN view of what has been discussed above, the only issue now remaining is what rate of interest is payable by the company to the complainant/Financial INstitution. Admittedly Mr. Roy informs that the complainant has obtained the loan from the Financial INstitution @ 6% per annum interest. The aforesaid two appeals, therefore, fail and are dismissed. The appellant/company shall pay the aforesaid amount of Rs. 1,02,232.64 within two months from today along with 6% interest per annum calculated from the date of original payment which is fixed as 21.6.1995. The payment shall be made by a Bank Draft in the name of Financial Institution who will furnish up-to-date account to the appellant for compliance. The complainant shall return the old machine to the appellant/company. The parties will bear their own costs. Let original copy of this order be kept in Appeal File No. A/629/SC/1996 and a certified copy of this order be placed in the Appeal File No. A/1268/SC/1999 which shall also be governed by this order. Let copy of this order be made available to the parties as per rules. Appeals dismissed.