MAHALAKSHMI ENTERPRISES vs Managing Director, Bihar State Schedule Caste Cooperative Development Corpn

LEARNED counsel for the parties present. Arguments heard.

THE case of the complainant/respondent, Managing Director, Bihar State Schedule Caste Cooperative Development Corporation, is that they had purchased generator sets from the petitioner/OP, M/s Mahalakshmi Enterprises. The petitioner/OP had received advance payment in the sum of Rs.17,19,900/ - vide cheque No. 443656 dated 24.7.1998 for supply of 84 generator sets. It is further alleged that as per the agreement with the petitioner/OP for supply of 150 generator sets, only 86 generator sets were sent. Thereafter, a dispute arose between the parties. Therefore, the OP filed a Title Suit No. 166 of 2003 before the civil court, which was decided on 27.4.2011. This suit was contested by the complainant/respondent.

THEREAFTER , suppressing this material fact that the title suit was pending in the civil court, the complainant filed a complaint before the District Forum on 8.11.2004. The District Forum decided the complaint in favour of the complainant/respondent. The District Forum passed the following order: "We, therefore, direct the opposite parties for complainant case No. 449/2004, 450/2004, 451/2004, 452/2004, 453/2004 and 456/2004 to pay Rs.1,69,495.55, Rs.2,75,900, Rs.4,64,712/ -, Rs.3,40,510/ - Rs.9,52,387.40 and Rs.5,36,900/ - to the complainant with 10% annual interest from the date of payment to them till the date of repayment to the complainants respectively. The opposite party of complaint case No. 480/2004 is directed to pay an amount of Rs.10,000/ - towards compensation to the complainant. We further direct the opposite parties in each case to pay cost of Rs. Illegible to each of the complainant. The above directions must be complied by the opposite parties in all the cases within the period of two months from the date of the receipt of the copy of this order."

This order was passed ex parte and it is surprising to note that the complainant suppressed the fact that civil suit was pending. It is also surprising to note that the learned counsel for the complainant/respondent, Shri. J. K. Singh submits that it is not his duty to disclose this fact. It is further submitted that the petitioner/OP appeared before the District Forum, filed Vakalatnama and written statement. Despite this fact, it was the bounden duty of the complainant/respondent to disclose that a civil suit was also pending. Had this fact been brought to the notice of the consumer fora, it would not have tried the case at all.

IT is also surprising to note that the State Commission in para 8 made the following observation: "8.Considering the rival submission of the parties and the material brought on record as also the order under appeal, it would appear that admittedly the appellant had received a sum of Rs.17,19,900/ - (Rs. Seventeen lacs, nineteen thousand and nine hundred) only as per cheque NO. 443656 dated 24 -707 -1998 for supply of 84 generator sets @ Rs.22,750/ - (Rs. Twenty two thousand seven hundred and fifty only) and admittedly only 52 generator sets were supplied worth Rs.11,83,000/ - (Rs. Eleven Lac and eighty three thousand only) and as such, the balance amount of Rs.5,36,900/ - (Rs. Five lacs thirty six thousand and nine hundred only) is remaining with the appellant. As regards the matter in the Civil Court being Title Suit No. 166/2003 filed by the appellant, it would appear that the dispute was with respect to the cancellation of the supply order whereas in the complaint case, the dispute is with respect to deficiency in service on the part of the appellant in not supplying 84 generator sets even though after receiving the money and as such, the scope and consideration in the compliant case and the Civil Court is not the same. We do not find any error in the order under appeal in directing the appellant to refund back the balance amount of Rs.5,36,900 (Rs. Five lacs thirty six thousands and nine hundred only with 10% annual interest from the date of payment to the final payment the price of 32 generator sets, which did not supply by the appellant.

THE State Commission opined that both the cases are different. This is misconception of law. Both the matters before the civil court and the consumer fora were the same. The complainant had the liberty to claim set off in that case. He could make counter claim if he did not do the needful then his case is barred under Section II or Rule 2 of Order 2 of CPC. Since the matter has been decided by the civil court, therefore, the consumer fora have no jurisdiction at all to decide this case. This must be borne in mind that the civil suit regarding same cause of action was filed earlier. The civil court has larger scope than the summary trial case in a consumer fora. In civil court one gets full opportunity to produce the evidence and cross -examine the witnesses, which is the life blood of legal profession. The early filing of the case before the civil court does strike a snap in a consumer fora on the same cause of action. In order to avoid multiplicity of judgments the consumer fora must refrain from poaching into the jurisdiction of civil court. Consequently, we set aside the orders passed by both the fora below and accept the revision petition and dismiss the complaint.