(1.) THE first complainant is a partnership firm represented by its partner Mrs. P. Nagamani and second complainant is Mr. P. Ramakrishna, second partner. The first complainant is an unemployed and the second complainant is having vast knowledge and experience in photography and both of them happened to be wife and husband. They approached A.P. State Finance Corporation (hereinafter referred to as APSFC ) in the year 1991 for setting up of an Automatic Film Processing (Colour) Unit at Tanuku in the name and style of first complainant. APSFC approved the project of the complainant through their branch at Eluru, West Godavari District and indicated that the complainant can get the machinery required by them through their panel suppliers i.e., opposite party herein. The complainants approached the opposite party at Bombay for supply of the required machinery for setting up of a film processing unit. The opposite party impressed upon the complainant that their firm is a prominent one in the country and that they will supply standard machinery and instal the same and also attend to after sales service whenever required and issued a proforma invoice No. AFS/91/10 dated 2.2.1991 for submission to APSFC, showing the total cost of the machinery, packing charges, 4% C.S.T., and insurance with a total cost of Rs. 6,63,675/ -. Accordingly the complainants submitted the proforma invoice issued by the opposite party to APSFC, Eluru branch and also informed regarding the payment of Rs. 50,000/ - on 17.1.1995 and Rs. 1,15,000/ - on 2.2.1991 as the opposite party pressurised for payment as the machinery will be despatched in priority basis. The complainants have made a payment of Rs. 30,000/ - on 12.2.1991 to the opposite party. APSFC, Eluru branch through their letter dated 30.3.1991 that they will make payment of Rs. 4,01,625/ - against the supply of entire machinery within one month from the said date and requested that the machinery should be despatched and documented through Bank i.e., Andhra Bank, Ashoknagar, Eluru and after receipt of L.R. the amount will be disbursed through bank. Opposite party wrote a letter dated 19.4.1991 confirming the receipt of Rs. 1,96,000/ - from the complainants and asked APSFC, to release the balance of the amount. Opposite party got their amount released through APSFC. and installed the machinery. It is the case of the complainants that the machinery was not working properly and that they made STD calls to send their technicians as agreed to by them to repair the machinery and correct the defects. Opposite party ignored the pleas of the complainants and it is only after the repeated requests, they sent their technicians. The incidental charges of the technicians were borne by the complainants as requested by the opposite party but they failed to rectify the defects and did not effect proper repairs. The complainants further stated that the opposite party did not keep up the time schedule for repairing the machinery installed. After making several STD calls the opposite party sent their technicians Sri Dhananjay D. Padve on condition that his boarding and lodging charges have to be borne by the complainants. The technician stayed from 8.7.1991 to 14.8.1991 and only added to the expenditure of the complainant. Since the complainant was not satisfied another technician, by name, Mr. Ajit Patel came on 31.8.1991 stayed upto 18.9.1991 and wasted the chemicals and materials provided by the complainants, but failed to commission to the unit satisfactorily. In short, it is the case of the complainants that several technicians including Surender Ajgonkar visited the place of the complainants but failed to commission the unit. Hence the complainants approached this Commission claiming the following amounts.
(a) The cost of the Machinery (i) Amount of loan advance by SFC Rs. 4,01,625/ - (ii) Amount paid by the complainants Rs. 2,62,050/ - Total Rs. 6,63,675/ - (b) Amount payable to State Finance Corporation including principal, interest etc., (subject to accuracy on submission of account by SFC) upto filing of the complaint Rs. 10,50,000/ - (c) Amount spent on rawmaterials during the visits of technicians Rs. 2,00,000/ - (d) Amounts paid to Technicians Rs. 30,000/ - (e) Telephone, Stationary, personal visits of complainants to Bombay, etc., Rs. 50,000/ - (f) Loss of business by the complainants From 1991 to filing of this petition Rs. 3,70,000/ - (g) For mental agony and hardship the damages calculated at Rs. 3,00,000/ - Rs. 20,00,000/ -
(2.) OPPOSITE party though served with notice did not choose to appear, hence this Commission set ex parte the opposite party on 13.11.1998. Though the matter was adjourned several times, the opposite party did not appear and contest the matter.
(3.) BASED on the pleadings and Exs. A1 to A26, this Commission found that there is deficiency in service on behalf of the opposite party and awarded a sum of Rs. 10,88,675/ - with interest at 18% p.a. from the date of filing of complaint till payment.
Aggrieved by the said order, opposite party have filed statutory First Appeal No. 854/2003. The National Commission enquired into the matter and by their order dated 23.2.2004 passed the following order :
"Heard the learned Counsels for the parties. Being aggrieved and dissatisfied by the judgment and order dated 3.7.2002 passed by the State Commission, Andhra Pradesh at Hyderabad in C.D. No. 38/1996, the original petitioner has filed this appeal. It has been pointed out by the learned Counsel for the appellant that the judgment and order passed against the appellant is ex parte one and without considering the relevant evidence which was produced by the respondent. For this purpose appellant has relied upon various grounds mentioned in the appeal memo. It is pointed out that appellant has only received Rs. 4,01,625/ - from Andhra Pradesh Finance Corporation. Rest of the amount as alleged by the respondent was not received by the appellant. For this purpose reliance is placed on various cheques which are unsigned by the respondent on the basis of which the State Commission has passed the impugned order. Considering the facts stated in the appeal memo in the interest of justice, matter is required to be remitted to the State Commission for hearing afresh on merits after giving an opportunity of hearing to both the parties as well as permitting the appellant to file written version along with evidence of affidavits.
However, as appellant has remained absent at the time of hearing before the State Commission, we direct the appellant to pay Rs. 50,000/ - as costs. The said amount shall be directly deposited in the account of respondent with Andhra Pradesh Finance Corporation.
Appeal is allowed accordingly. The impugned order passed by the State Commission is set aside. The matter is remitted for deciding it on merits afresh. The amount deposited by the appellant be directly remitted to Andhra Pradesh Finance Corporation to be credited for the time being in the account of appellant on ad hoc basis. Registry is directed to return original documents produced by the appellant immediately.
Parties to appear before the State Commission on 15th March, 2004. The interim order dated 12.1.2004 passed by this Commission stands vacated.";