SCHILLER HEALTH CARE INDIA PRIVATE LIMITED Vs. ANEESH SHARMA

JUDGEMENT

(1.) THE aforesaid two appeals arise from the impugned order dated 19.10.2002. On account of having sold a quality defective Spirovit SP -1 machine meant for lung tests, the appellant M/s. Schiller Health Care has been vide impugned order dated 19.10.2002 directed to refund the cost of the machine amounting to Rs. 1,02,000 along with interest @ 9% w.e.f. 10.8.1999 till the date of payment and Rs. 1,000 towards litigation cost. Feeling aggrieved the appellant has preferred this appeal.

(2.) BRIEF allegations leading to the impugned order were that the appellant published an advertisement in the issue of the D.M.A. News Bulletin to advertise their Spirovit SP -1 costing Rs. 1,12,000 for a down payment of Rs. 25,000 only and the balance being payable in 12 easy instalments of Rs. 7,250 p.m. On the respondent becoming interested in the unit, appellant deputed Mr. R.K. Handa who agreed to sell the unit for Rs. one lac only by way of full down payment out of which the respondent paid to him against his receipt on advance of Rs. 25,000 immediately and the balance price was to be paid against delivery. After a few days, Mr. Handa informed the respondent that the total price of the unit would be slightly higher at Rs. 1,12,000 to which the respondent agreed. The unit was delivered on 10th August, 1999 together with its warranty signed on behalf of the respondent by Mr. Handa but without the invoice. Mr. Handa returned the uncashed cheque of Rs. 25,000 to the appellant who issued a fresh cheque of Rs. 1,02,000 in favour of the respondent. The unit's invoice was, however, delivered by the appellant on 14th August, 1999 which showed that the unit was "Quality Deficient" to the extent of almost 10% because as per the invoice, a sum of Rs. 10,000 had been deducted as "quality discount" from its so -called pre sales price of Rs. 1,06,226. The invoice did not indicate even the serial number of the unit. It was also lacking in the sheen and shimmer of a brand new imported product, and a closer look at its packing revealed that the unit's serial number did not tally with the serial number of its packing which itself seemed to be the packing of an ECG machine. The respondent reconfirmed that he had placed his order for a brand new imported and not quality deficient unit.

(3.) AS against this, the version of the appellant, in brief, was that since the respondent was not ready to purchase the unit on the quoted price, a special concession was made for him to sell the unit at a price of Rs. 1,02,000 to which the respondent had agreed. The respondent gave a cheque for Rs. 1,02,000 only after being satisfied with the due performance of the unit. The invoice was not given to the respondent as it was to be given only after the realization of the cheque and the appellant had not objected to this on the date of delivery i.e., on 10th August, 1999. It has denied that the unit was quality deficient to the extent of almost 10% and as such a sum of Rs. 10,000 was deducted as quality discount. Invoice does not indicate the serial number of the unit and has denied that the unit was lacking in sheen and shimmer of a brand new imported product and the serial number of the unit did not match with the serial number of the packing as alleged by the respondent.