M/S. Lilac Medicare (Pvt) Ltd vs Dr. S.C..Garg

The brief facts of the case are that the respondent Dr S C Garg - Complainant (hereinafter referred as 'complainant') purchased Lumx Semi Automated Chemiluminescence System (Machine) for Rs.4.00 lakh against a part payment of Rs.3,05,000/- which was paid through cheque against bill no.151 dated 11.01.2009. He purchased the said machine on 25.11.2009. This machine was installed at his clinic on 08.01.2010. Since there was a defect in the machine, a complaint was filed before the District Consumer Disputes Redressal Forum, Ludhiana (herein after referred as 'District Forum') as CC no. 291 against M/s Lilac Medicare (Pvt.) Ltd., and their agent/ distributor - namely Mr Sanjeev Kalia.

The petitioner did not attend the proceedings before the District and was proceeded ex parte. Vide order dated 21.11.2011 the order was passed in favour of the complainant and the complaint was allowed. On 20.02.2012, the petitioner filed an application for setting aside the order dated 21.11.2011 before the District Forum. The said application of the petitioner was dismissed vide order dated 13.08.2012. The petitioner challenged the said order in appeal before the State Consumer Disputes Redressal Commission, Punjab (hereinafter referred as 'State Commission') in appeal no. 81 of 2013. The appeal of the petitioner was dismissed by the State Commission vide order dated 30.04.2013. The order of the State Commission dated 30.04.2013 was challenged by the petitioner which was registered as RP no.3209 of 2013. A consent order was passed in the following terms:

"4. The agreement reached between the parties on merits is that Mr Sanjiv Kalia who is the dealer, is not bound by the decree. He is discharged and his revision petition stands accepted.

It is also agreed between the parties that the defective machine will be rectified by Lilac Medicare (P) Ltd.,. M/s Lilac Medicare will lift the machine from the premises of the respondent, Dr S C Garg, within three weeks and machine will be sent back, rectified, within one month thereafter or in case if it has to be sent to USA, where the actual manufacturer resides then, in that case within three months thereafter. It has been agreed that the rectified machine working properly, would be handed over to the complainant, within a period of three months and three weeks or in the alternative the entire amount paid towards the machinery would be paid back to the complainant with interest @ 6% per annum. It is also directed that the complainant, after receipt of the said machine, will pay the residual cost of the total amount, in three instalments within a gap of one month each. The first instalment be paid within one month, after the receipt of the machine.

In the meantime, execution proceedings will be stayed for four months".

This order has attained finality. Thereafter an application no.740 of 2013 was filed by the petitioner before this Commission seeking directions to the respondent to cooperate in order to give effect to the order dated 17.09.2013 of this Commission. This Commission passed an order on the said application of the petitioner which reads as under:

"Counsel for the petitioner present. We have passed a consent decree vide our order dated 17.09.2013. This is a consent decree and only District Forum, the Executive Court can execute it.

Liberty is granted to the petitioner to approach the District Forum, the Executing Court, for compliance of the decree.

Miscellaneous Application no. 740 of 2013 stands disposed of.

Dasti order be given as prayed."

Thereafter, the petitioner filed an execution of the order of this Commission dated 17.09.2013. The respondent filed an execution application no. 27 of 2015 in March 2015. Vide order dated 27.04.2015, the execution application of the petitioner was dismissed by the District Forum. The petitioner challenged the said order by filing an appeal no. 968 of 205 before the State Commission and the said appeal was dismissed vide order dated 11.04.2016.

This order has been challenged before this Commission on the grounds that the State Commission has failed to appreciate the facts that the order of the National Commission dated 17.09.2013 was subject to payment of cost of Rs.5,000/- by the petitioner which the petitioner was ready to pay, but the respondent took a plea that unless the cost is paid the order dated 17.09.2013 is not executable. It is further submitted that the petitioner was intended to comply with the order dated 17.09.2013 and it was the respondent who had acted with mala fide intention. After the notice was received by the respondent, the respondent put in appearance.

I have heard the arguments of the counsel for the parties and perused the record.

During the course of the argument, it was argued on behalf of the respondent that the petitioner had obtained a stay of the execution of the order dated 17.09.2013, subject to payment of entire decretal amount and had deposited the decretal amount. The said amount stand released to the respondent on 06.06.2016. It is submitted that the respondent had never defaulted in complying with the consent order and they are ready to hand over the machinery to the petitioner. It is submitted that the petitioner despite the consent order had failed to rectify the machine within the stipulated period.

Learned counsel for the petitioner states that it is the respondent who had failed to comply with the consent order and did not hand over the machine for which they approached him on 08.10.2013 i.e. the last date of ending of three weeks' time which was given to them for rectification of the machine.

I have given my thoughtful consideration. It is apparent from the order of this Commission dated 17.09.2013 which was the consent order, reproduced above, the petitioner undertook to rectify the machine within three weeks and the petitioner was to "lift the machine" from the premises of the respondent - Dr S C Garg within three weeks. Instead of lifting the machine, vide execution petition, the petitioner sought directions to the respondent for cooperation. As per the own admission of the petitioner it had gone to collect the machine on the last date of the third week. The respondent however, states that the petitioner had never approached the site for lifting the machine for rectification. It is apparent that the petitioner did not go to collect the machine but on the last date of the third week i.e., 08.10.2013.

It is also apparent that MA no. 740 of 2013 has been filed by the petitioner for executing the consent order dated 17.09.2013 on 20th November 2013, i.e., after the expiry of one month within which they needed to rectify the machine. It is also apparent that they have not yet paid the sum of Rs.5,000/- to the respondent which they were required to pay as cost for condoning the delay as per the consent order dated 17.09.2013 which is now a decree.

The conduct of the appellant apparently negate their arguments and that they were always ready and willing to comply with the order dated 17.09.2013. It is also apparent that in terms of the decree dated 17.09.2013, the entire cost of the machine along with interest, payable by the petitioner on their failure to rectify the machine within the stipulated period, stands paid to the respondent.

The appeal as it is becomes infructuous, but the learned counsel on instructions insisted on arguing. There is no error or illegality in the impugned order of the State Commission calling for the interference by this Commission. The Execution Revision Petition (ERP) has no merit and the same is dismissed. While disposing of the present ERP, I impose a cost of Rs.25,000/- upon the petitioner which shall be paid to the respondent by way of demand draft within a period of four weeks.