DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _471_ OF ___2015
DATE OF FILING : 29.12.2015 DATE OF PASSING JUDGEMENT: 23.10.2017
Present : President : Udayan Mukhopadhyay
Member(s) : Subrata Sarker
COMPLAINANT : Smt. Mita Bhattacharya, Proprietor of M/s S.B Cardio Care, Mallickpore, N.V Lane, Rajpore, Sonarpur, Kolkata – 149.
-VERSUS -
O.P/O.Ps : 1. M/s Medicon Systems, 3A, Chowringhee Place, 2nd floor, Room no.68, Kolkata – 13.
2. Sri Hemanka Sarkar of P.O Jaynagar and Village-Raktakha Para, P.S Joynagar, Pin-743337, South 24-Parganas
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J U D G E M E N T
Sri Udayan Mukhopadhyay, President
This is an application under section 12 of the C.P Act 1986 filed by the complainant on the ground that O.Ps deal with medical equipments and complainant having knowledge of the said medical equipments ,for which , complainant acknowledged the quotation price of the Halter Recorder and terms and conditions therein and placed purchase order of the same on 22.2.2013 in respect of one Holter Monitor machine and one Analyser for livelihood by self employment. Complainant also paid Rs.5,25,000/-by Demand Draft being no.151662 dated 22.2.2013 drawn on United Bank of India, Rajpur Branch to the O.Ps, who also issued receipt thereof which is annexure II . But due to non supply of the said medical equipments by the O.Ps within the time as per terms and conditions, complainant visited the office of the O.P in regular interval but returned without fruitful result . It has been claimed by the complainant that she invested Rs.5,25,000/-out of loan from Bank and as a result good amount of interest has been accrued thereon and remained unpaid to the bank. Accordingly, due to negligent act and deficiency in service on the part of the O.Ps, this case is filed . It is interesting to point out that under compelling circumstances complainant accepted the offer of the O.P a lessor amount of return of money to the tune of Rs.4,30,000/- out of which Rs.1,19,000/- in cash and Rs.3,11,846/- in three post dated account payee cheque of Rs.1,11,846/- dated 30.10.2013, Rs.1 lac dated 30.12.2013 and Rs. 1 lac dated 30.12.2013 . Complainant has received money totaling to Rs.1,15,000/- in cash but the cheque issued by the O.Ps were dishonoured by the Bank. Thereafter, complainant preferred proceedings under section 138 of the N.I Act which is pending before the Ld. Judicial Magistrate, Baruipur, South 24-Parganas. Hence, this case with a prayer to refund Rs.5,25,000/- after adjusting Rs.1,15,000/- towards , compensation to the tune of Rs.3 lacs, litigation cost Rs.20,000/-.
The O.Ps contested the case by filing written version denying all the material allegations contending inter alia that save and except those facts are admitted by the O.Ps, others are strictly denied and put to be proved by the complainant. It has claimed that para nos. 1 to 8 are denied but admitted the contention of para no.9 in the written version. The O.Ps strongly denied the acceptance of Rs.5,25,000/- and undertaking to supply medical equipments etc. and also denied para 11,12 and 13.
It is the positive case of the O.Ps that Mita Bhattacharjee is an employee of Birla Heart Research Centre for a long time and O.P Hemanka Sarkar visit the said Hospital for sale of the Medical instruments and contacted with Mita Bhattacharya who and Sri Amitava Dutta became friend . Accordingly Mita Bhattacharya and Amitava Dutta had given a quotation for Holter Software and Recover two only. The said M/s Median Systems submitted a quotation to M/s S.B Cardio Care Proprietor Mita Bhattacharya mentioning Holter Software for Rs.4,00,000/- and two Holter Recorder @Rs.1,25,000/-= Rs.2,50,000/- . Thereafter, the said M/s S.B Cardio Care placed an order for one Holter Software and one Holer recorder 5total amount of Rs.5,25,000/-. The said M/s S.B Cardio Care took a loan from United Bank of India Rajpur Branch for Rs.5,25,000/- and said United Bank issued a draft of Rs.5,.24,000/-in favour of M/s Medicon System through M/s S.B Cardio Care Proprietor Mita Bhattacharya with the help of
Amitava dutta, Husband of Mitra Bhattacharya. It has further submitted by the O.Ps that O.P submitted a quotation for those product stating that one Holter Software Rs.4 lac and one Holter Recorder of Rs.1,25,000/- total amount of Rs.5,25,000/- as on 22.2.2013.It has also been claimed by the O.P that O.Ps received demand draft of United Bank of India in favour of O.P Medicon systems through Smt. Mita Bhattacharya and his husband Sri Amitava Dutta . Thereafter the said Mita Bhattacharya got a security for Rs.5,24,000/- and after full discussion and with pressure your O.P have no alternative but to dishonor the said order and under pressure O.P M/s Medicon Systems agreed to cash security for this order and submitted cheque as cash security and after delivery of the said machines the said cheque are to be returned to M/S Medicon Systems, Prop. Hemanka Sarkar. The machines are duly delivered on 5.4.2013 to S.B Cardio Care and the said instruments are received by Sri Amitava Dutta, husband of Mita Bhattacharya on 5.4.2013 with two copies of tax invoice as per telephone request by Smt. Mita Bhattacharya as she was busy with her hospital duty. But the said S.B Cardeio Care Proprietor Smt. Mita Bhattacharya withhold the said security cheque after delivery of those medical instruments , for which O.Ps have no other alternative but to close the said savings bank account of Axis Bank Baruipur Branch. The said cheque are still kept in custody of Smt. Mita Bhattacharya who use the said cheque for illegal gain for which two criminal cases before the Judicial Magistrate at Baruipur under 138 of N.I Act is pending before the said court. It has claimed that case is not maintainable and also pray for dismissal of the case.
Points for decision in this case is whether there is deficiency in service or unfair trade practice on the part of the O.Ps or not.
Decision with reasons
Admittedly ,the complainant placed an order of Holter Monitor and one Holter Recorder of total amount of Rs.5,25,000/- after taking loan from United Bank of India, Baruipur Branch in favour of Medicon Systems through S. B Cardio Care , Proprietor Mita Bhattacharya with the help of Amitava Dutta, the husband of Mita Bhattacharya.
It is true that abovementioned averment is reflected in para 20 at page 3 of the written version of the O.Ps. But one thing has not yet been proved that Amitava Dutta is the husband of Mita Bhattacharya and Amitava Dutta is not a party in this case. It is further interesting to point out that O.P has claimed that United Bank of India, Baruipur Branch is a necessary party ,but not claimed that Amitava Dutta, the husband of the complainant is also a necessary party. So, it is very difficult to believe that Amitava Dutta is the husband of the complainant Mita Bhattacharya.
One thing is clear that cheque amount was received . Another thing is also proved that O.P has given three cheque but it is the case of the O.Ps that said cheque was remained to the complainant for security purpose. But complainant has claimed that they failed to provide the Holter machines and its analyser ,that is why they created pressure since they have obtained loan from the Bank and Bank charges interest month by month and returned three cheque which were subsequently dishonoured. But cash money was accepted i.e Rs.1,19,000/-. But it is very difficult to believe that Holter machine and its analyser was handed over. No document is filed by the O.P to discharge his liability that the said machine was handed over to Mita Bhattacharya. If the Holter Machine was delivered along with its analyser , what prompted the O.ps to give security by sending three three? This act of the O.ps clearly demonstrates the deficiency of service on the part of the O.Ps.
Practically any common man can realize if the Holter machine and its analyser was delivered, then no need of issuing three cheque for security purpose and in that event guarantee card is normally given. We have never heard that if any goods be purchased ,instead of guarantee card cheque amount is provided. This is absurd story of the O.Ps. This circumstances clearly suggest that O.Ps never sent any Holter Monitor and Holter Recorder or analyzer to the complainant. One challan has been filed which is a concocted document having no basis at all. So, we find that after accepting the money only cash amount of Rs.1,19,000/- has been given and three cheque have already been dishonoured. Thus complainant has been able to prove his case of deficiency of service and unfair trade practice on the part of the O.Ps, since the O.Ps have failed to discharge his duty.
Hence,
Ordered
That the complaint case is allowed on contest against the O.Ps with cost of Rs.10,000/- which will be paid by the O.Ps jointly and/or severally within 30 days from the date of this order.
The O.Ps are directed jointly and/or severally to pay Rs.4,06,000/- ( after deducting the cash amount of Rs.1,19,000/- from Rs.5,25,000/-) and also to pay compensation as assessed Rs.1 lac to the complainant within 30 days from the date of this order , failing which complainant is at liberty to execute the order through this Forum.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.
Member Member President
Dictated and corrected by me
President
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
Ordered
That the complaint case is allowed on contest against the O.Ps with cost of Rs.10,000/- which will be paid by the O.Ps jointly and/or severally within 30 days from the date of this order.
The O.Ps are directed jointly and/or severally to pay Rs.4,06,000/- ( after deducting the cash amount of Rs.1,19,000/- from Rs.5,25,000/-) and also to pay compensation as assessed Rs.1 lac to the complainant within 30 days from the date of this order , failing which complainant is at liberty to execute the order through this Forum.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.
Member Member President
