DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. _89_ OF ___2017
DATE OF FILING : 14.07.2017 DATE OF PASSING JUDGEMENT: _28.6.2018_
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker
COMPLAINANT : Sri Amit Mondal, son of Amarendranath Mondal of Vill-Uttarayan Pally, P.O & P.S Sonarpur, Kolkata – 150.
O.P/O.Ps : 1. Anirban Roy, owner of Techno Hub Printing Machines & Allied Machinery, Suchane Apartment, Santoshpur, Budge Budge Trunk Road, P.O & P.S Maheshtala , Dist. S-24PGs, Kol-141.
AND residential address at K-1/3, S.M Nagar Housing Estate, P.O Sarkar Pol, P.S Maheshtala, Dist. South 24-Parganas, Kol-143.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
The nub of the facts leading to the filing of the instant case is that the complainant proposed to purchase an Offset Printing Machine from the O.P. The O.P also agreed to sell and install the said machine in the house of the complainant for Rs.7,56,000/-. Rs.6 lac was paid to the O.P in advance on different dates i.e Rs.1 lac on 1.8.2016 and Rs.5 lac on 3.9.2016. The O.P agreed to cause delivery of the machine on 5.10.2016. But no delivery of the machine was made by the O.P as per his commitment. On 21.11.2016 , the O.P informed the complainant by a letter that he would install the machine after 15 days. But no such installation of the machine was made by the O.P. Thereafter, the O.P issued three cheques being nos. 022955 dated 11.1.2017, 022957 dated 15.1.2017 and 022956 dated 13.1.2017 to refund the deposited money to the complainant. But the cheques were dishonoured and the complainant could not realize the money of the cheques. Thereafter the complainant has requested the O.P to return the amount received from him and accordingly the O.P has refunded Rs.4 lac to the complainant through NEFT ,though part by part.
On 29.3.2017, O.P sent a letter to the complainant and thereby assured the complainant to install the machine in the house of the complainant, treating the balance amount of Rs.2 lac as advance. It was also stated in that letter that the complainant would pay the rest amount of consideration price to the O.P after installation of the machine. But the machine was not installed. Now, the complainant has prayed for delivery and installation of the machine by the O.P, or to refund of Rs.2 lac paid by him to the O.P and compensation etc. Hence, the case.
The O.P is contesting the case by filing written statement, wherein it is stated that he agreed to sell and install the machine in the house of the complainant on condition of full payment of Rs.7,56,000/- to be made by the complainant before delivery of the machine. But, the complainant paid only Rs.6 lac and the balance amount of consideration price was not paid to him by the complainant and , therefore, delivery of the machine was not made by him. It is further stated by him that he returned Rs.4 lac to the complainant and the earlier contract has thus been put to an end. Again, it was agreed verbally between the parties that the balance amount of Rs.2 lac which is lying in the hand of the O.P would be treated as advance and the machine would be delivered and installed on payment of Rs.5,56,000/- by the complainant. This amount of Rs.5,56,000/- was not paid by the complainant in accordance with the terms of the agreement and, therefore, the machine was not installed by the O.P. There is no deficiency in service on the part of the O.P and the O.P is willing and ready to install the machine in the house of the complainant if Rs.5,56,000/- is paid to him by the complainant. He is also ready and willing to return Rs.2 lac lying in his hand to the complainant. The case is devoid of any merit and ,therefore, it deserves to be dismissed with cost.
Upon the averments of the parties following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the O.P guilty of deficiency in service as alleged?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Complainant has led his Evidences on affidavit which is kept in the record for consideration. No evidence is filed by the O.P ,nor is filed any BNA by him.
DECISION WITH REASONS
Point no.1 & 2 :
In the instant case, almost all the facts go undisputed. It is undisputed that the O.P agreed to sell and install a machine in the house of the complainant for a total consideration price of Rs.7,56,000/- , that the complainant paid Rs.6 lac to the O.P , that three cheques issued by the O.P in favour of the complainant in order to refund Rs.6 lac were dishonoured. It is also undisputed that another agreement took place between the parties after the cancellation of the former agreement and by virtue of the terms of the said agreement, the parties treated Rs.2 lac which was lying in the hand of the O.P as advance and the O.P also agreed to deliver and install the machine in the house of the complainant on payment of the balance amount of Rs.5,56,000/-. But this balance amount of Rs.5,56,000/- has not been paid by the complainant to the O.P and, therefore, it is the allegation of the O.P that the machine has not been installed in the house of the complainant for failure of the complainant to pay the balance consideration money before delivery and installation of the machine.
On perusal of the materials on record it is found that two agreements were struck between the parties. One quotation dated 3.2.2016 was sent by the O.P by virtue of the first agreement and thereby the O.P acknowledged receipt of Rs.6 lac as advance from the complainant and date of delivery of the machine was fixed on 5.10.2016 vide Annexure B to the complaint. This agreement has not been worked out by the parties. When the machine was not delivered by the O.P by 5.10.2016 , the complainant requested the O.P to refund the amount received from him . The O.P also returned the amount of Rs.6 lac to the complainant by issuing three cheques. These cheques have been dishonoured. But the consequence of the cheques being dishonoured is not material to our consideration. One thing which stands established from the fact of the cheques being dishonoured is that cheques were received by the complainant and the complainant presented the cheques for encashment before his banker. From this fact it is clear that the said agreement has been cancelled by the O.P and the said cancellation of the agreement has also been accepted by the complainant.
Now, it is found that another agreement has come into existence in the place of the former agreement. Both the parties have agreed by virtue of the terms ,which is later agreement, to treat Rs.2 lac as advance which was lying in the hand of the O.P as advance and the O.P has also agreed to sell the machine to the complainant for a consideration price of Rs.7,56,000/-. When the former agreement has been substituted by the later agreement, the former agreement cannot be regarded as in existence and now we have to see whether the later agreement has been complied with by the parties in its letters and spirit or not.
Non-compliance of the terms of the agreement will be treated as deficiency in service on the part of the O.P. It has been argued on behalf of the O.P that the complainant did not comply with the terms of this later agreement and, therefore, the machine has not been supplied to the complainant. According to the submission of the O.P, the complainant did not pay the balance consideration money before the date of delivery of the machine in keeping with the terms of the agreement and that he has made himself default of the agreement and, therefore, the machine has not been supplied to the complainant. An attempt is made on the part of the O.P to brand the complainant as defaulter in terms of the later agreement. Entire blame has been given to the complainant that the complainant did not make full payment of the balance consideration money and, therefore, the O.P could not deliver the machine to the complainant. A copy of the quotation dated 16.2.2017 has been filed on record on behalf of the O.P and it appears from the terms and conditions of the said quotation that the complainant is required to pay advance 50% along with the order and balance before dispatch. Citing the terms and conditions of this quotation it is submitted on behalf of the O.P that the complainant has not deposited the balance consideration money before the dispatch of the machine and , therefore, the machine has not been dispatched. But, this is not the actual fact. A deeper scrutiny of the facts and materials on record will bring the actual truth to the surface. A letter dated 29.3.2017 issued by the O.P has been filed herein and both the parties have filed the same copy of the said letter which is kept in the record. The relevant portion of the said letter is quoted as follows:
“We are very much apologies for unable to maintain our delivery date to install Offset Printing Machine, we received order from you of Rs.2 lac (two lacs only) total value of machine Rs.7,56,000/- ( Rupees Seven lacs Fifty Six Thausands only) rest of payment of Rs.5,56,000/-( Rupees Five lacs Fifty Six Thousands only) which amount you will pay after installation of machine”. (Mistake in construction of letter is of author).
The letter dated 29.3.2017 was issued by the O.P after the issue of quotation dated 16.2.2017. By letter dated 29.3.2017 , the terms and conditions of the quotation dated 16.2.2017 have been modified. By the terms of letter dated 29.3.2017 ,the O.P has agreed to deliver the machine to the complainant and to receive the balance amount of Rs.5,56,000/- after installation of machine. The terms of the letter dated 29.3.2017 which modified the terms of the quotation dated 16.2.2017 has not been complied with by the O.P. Non-compliance of the terms of letter dated 29.3.2017 is absolutely a deficiency in service on the part of the O.P. It is found that the O.P is in the habit of playing duplicity with the complainant. He has not learnt to honour his own commitment. The complainant has suffered a lot of inconvenience and loss due to non-supply of the machine to him by the O.P. The O.P will have to compensate the complainant and order is passed accordingly as hereunder.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P with a cost of Rs.10,000/-.
The O.P is directed to deliver and install the machine in the house of the complainant without demanding any charge from the complainant on account of transportation and installation of the machine. He must also give adequate warranty service of the machine for one year starting from the date of installation of the machine.
At the same time, it is ordered that the complainant will make payment of Rs.5,56,000/- i.e the balance amount of consideration price to the O.P after installation of the machine in his house .
The O.P must do all the above acts within one month of this order, failing which, he will have to refund Rs.2 lac which is lying in his hand to the complainant and also to pay Rs.50,000/- as compensation for loss sustained by the complainant owing to dishonuor of cheques, harassment and mental agony suffered by him ,with interest @10% p.a upon the refund amount, compensation amount and the amount of cost as referred to above till full realization thereof.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member
Dictated and corrected by me
President
