OMNITEL INDUSTRIES LTD vs KUSUM JAIN

FACTS necessary for the disposal of this appeal are as under:

SMT. Kusum Jain and Savitri Jain, complainants for short, filed complaint registered as No. 2950/93 in District Forum-II for the refund of the security amount deposited with M/s. Omnitel Industries Ltd., hereinafter referred to as the O.P. Notice was issued by the District Forum to O.P. on 3.12.1993. The notice was sent under registered cover and was not received back undelivered. The O.P., having failed to appear, was proceeded ex-parte on 3.12.1993. The O.P. failed to enter appearance on later dates fixed in the case and ultimately the complaint was allowed by an ex-parte order dated 8.2.1994. A certified copy of the order was sent to O.P. on 9.3.1994 and the same was also not returned undelivered. The complainant made an application u/ Sec. 27 for enforcing the order. This was registered as Application No. 779/95. The complainant sent a copy of the order of District Forum dated 8.2.1994 under registered A.D. cover vide their letter-dated 20.7.1994 (R 1) filed with the reply herein. The A.D. was received back duly signed and stamped by the office of the O.P. (copy Annexure R-2). The District Forum issued show cause notice u/Sec. 27 for 1.6.1995. The said notice was not received back undelivered. Bailable warrants were issued against Director of Company for 11.10.1995 to be executed through Commissioner of Police, Hyderabad. The warrants having not been served fresh warrants were issued for 8.12.1995, 26.2.1996 and 18.4.96. An application for setting aside ex-parte order dated 8.2.1994 was made by O.P. on 17.6.1996 with the averments that O.P. acquired knowledge about the ex-parte order through warrants issued against the Director of the Company on 3.6.1996. The file was got inspected on 14.6.1996 and the said application made as stated.

The application was contested. By order dated 31.10.1996 District Forum dismissed the application hence this appeal.

THE District Forum observed in the impugned order that apart from the four different occasions when bailable warrants were issued against the Director, by the District Forum, the complainant sent notice including two instances whether the notice had been sent under registered cover. On all the four occasions the notice had not been received back undelivered. THE notices were sent on correct addresses of the O.P., after pre-paying the postal charges and the ordinary presumption was that ''those notices were served on the addressee namely opposite party. On one of these occasions when the complainant sent a copy of the ex-parte order passed by the District Forum. the A.D. card duly initialed and stamped by the seal of the Company (Annexure R-2) filed with the reply was received. Even otherwise, the O.P. claimed have acquired knowledge about these proceedings through bailable warrants, which were sent on four different occasions from 10.11.1995 to 18.4.1996. It was also observed by the District Forum that being a limited company the O.P. must be maintaining a receipt and despatch register and it had failed to produce the same to show that none of the aforesaid communications was received by it. For these reasons the District Forum held that the O.P. failed to rebut the presumption of service and accordingly dismissed the application. Learned Counsel for the appellant relied on the decision of the National Commission in G.M. Mahanagar Telephone v. R. Kannan, 1986-94 Consumer 983 (NS). This case related to a dispute relating to franchise and it was held that dispute between franchiser and franchisee was not a ''consumer dispute''. It was, therefore, contended that the District Forum had no jurisdiction. In reply, it has been stated that the agreement between the complainants and the O.P. was not of one franchise holder in that it was not between the franchiser and franchisee. The O.P. had agreed to render services on payment of consideration and had failed to render those services and the case was within the jurisdiction of the FORA. On the facts admitted in the present case the franchise agreement appears to have been entered into between MTNL and the opposite party and the complainants were not a party thereto. The opposite party as franchisee of MTNL had further entered into an agreement with the complainants to render certain services and the complainants are not covered under the definition of franchisee. In any case nothing prevented O.P. from contesting the case and establishing that, intact, the arrangement between the parties was one of franchise so as not to attract the jurisdiction of the District Forum.

ONE of the grounds mentioned in the appeal is that the security had been taken for the instruments installed in the premises of the complainants and the complainants had not returned the same. In the reply it has been stated by the complainants that they are ready and willing to return those instruments as and when the security is refunded. This can be easily taken care of in the proceedings u/Sec. 27 which are pending. We find ourselves in agreement with the reasoning and conclusion reached by District Forum and, accordingly, the appeal is dismissed with no order as to costs. A copy of the order be communicated to the parties as well as District Forum-II. Appeal dismissed.