Order-15.

Date-08/09/2016.

This is an application u/s.12 of the C.P. Act, 1986.

In brief the case of the complainant is that on 27/02/2013 the complainant entered into an agreement with the O.Ps. of total consideration of Rs.4,00,000/- for erection of one passenger elevator (Lift) for his house at P-44, New Garia, P.S. Panchsayar, Kolkata-700094. As per terms and conditions of the said contract the complainant paid 20 percent of the contract price i.e. Rs.80,000/- as advance money along with order and on the date of order O.P.-2 assured that the 1^st phase material of escalator and lift which includes Brackets, Rail, Accessories, Landing Floors, wiring materials etc. would be ready for dispatch at the site. O.P.-2 also assured that installation work will start within 30 days from the date of receipt of payments. Complainant contacted with the O.Ps. each and every month but to no good. On 23/06/2014 O.P.-3 sent a letter to the complainant and requested him for payment of Rs.1,60,000/- as per invoice. Accordingly complainant paid a sum of Rs.1,60,000/- through cheque dated 27/02/2014 but O.Ps. neither sent any material on the site of the complainant nor had taken any measure for starting the erection work till April,2015. The complainant again contacted with the O.ps. then O.P.-1 assured that within fortnight materials will be sent but on 26/05/2015 O.P.-2 by sending letter assured the complainant that material will be dispatched within 26^th August,2015 and asking for further payment of Rs.1,30,000/-at the time of dispatch and Rs.30,000/- towards installation and commissioning to the Agent of O.P.-1 but complainant was not agree to that letter. Curiously enough that O.P. by sending legal notice dated 21/12/2015 by making false , frivolous and baseless statement regarding sending of materials further claimed 30 percent of the contract price and further claimed 10 percent as raised of contract price. On 01/01/2016 complainant replied through his advocate against false statement of O.Ps.  After receiving Rs.2,40,000/- O.ps. are harassing by making false assurance day by day with an ill motive by adopting unfair trade practice and for this act complainant appears before this Forum for getting redressal  with some prayers as per petition of complaint.

          O.P.-1 appeared and contested the case by filing W.V. denying all the material allegations contending inter alia that the instant case is not maintainable and this case bad for suppression of material facts. Complainant paid Rs.2,40,000/- after that owing to some labour problem O.P. cannot sent materials and also requested to pay balance amount of Rs.1,60,000/- and as the complainant has not paid Rs.1,60,000/-, 2^nd phase materials has not been sent at the complainant’s site. O.P. is not liable to pay any amount to the complainant as compensation and pray for dismissal of the case.

          In spite of receiving summons O.Ps.-2 to 4 neither appeared nor did contest the case. Hence, the case is heard ex-parte against O.Ps.-2 to 4.

Decision with reasons

We have carefully perused the documents and materials on record and find that it is admitted fact that complainant had entered into an agreement with the O.Ps. for erection of one passenger lift on 27/02/2013 and total consideration money was of Rs.4,00,000/-. We find that in Column-6 of general terms and conditions of the contract it has specifically mentioned that payment shall be made pro rata basis per elevator and as per terms and conditions in column-6(a) complainant has paid 20 percent of consideration amount of Rs.80,000/- as advance along with the order on 27/02/2013 and again paid Rs.1,60,000/- as terms and conditions of column-6(b) and both payments had already been received by the O.Ps. and it is also admitted by the contesting O.P.-1. But the O.Ps. did not comply with the terms and conditions of column-6(b) where it has specifically mentioned that .40 percent of contract price to be paid against proforma invoice on intimation of delivery of 1^st phase materials being ready for dispatch. The 1^st phase materials will be delivered at site and installation work will start within 30 days from the date of receipt of payment.. From the copy of money receipt of the O.Ps. it reveals that 40 percent of consideration amount i.e. Rs.1,60,000/- has been received by the O.Ps. on 23/06/2014. But O.Ps. neither sent the materials as per contract at the site of the complainant’s building nor started any work up to 29/02/2016. Complainant contacted with the O.Ps. on various times but O.Ps. falsely assured that within the short period materials will be sent and installation work will be started but O.Ps. did nothing rather O.Ps. by sending letter to the complainant assured by statement that within 26^th August,2015 entire materials will be dispatched and requested for further payment of rs.1,30,000/-as material cost and Rs.30,000/- for commission of the job. The complainant was disagree with the proposal of O.ps. as they have violated the terms of the contract.

          O.Ps. have failed to prove by any cogent evidence that after receiving the amount from the complainant as per contract the materials have sent to the site of the complainant as well as had started the erection work of passenger lift. O.Ps. have violated the terms of the contract and harassed the complainant and for which complaint suffered immense mental pain, anxiety and monetory loss. O.Ps. were negligent in fulfilling their part of obligation as per terms of the contract and also created pressure upon the complainant for payment of another excess amount of Rs.1,60,000/- as per terms of the column-6(c) i.e. 30  percent of the contract price as 2^nd phase and final materials for dispatch, where O.Ps. have already failed to comply with the contractual obligation in 1^st phase contract rather harassed the complainant on various pretext.

          In view of the above discussions, it is crystal clear that O.Ps. are  negligent and deficient in providing service and also adopted unfair trade practice to harass the complainant and for this act of O.Ps. the complainant is entitled to get reliefs as prayed for.

In result, the case succeeds.

Hence,

Ordered

The case be and the same is allowed on contest against the O.P.-1 and ex-parte against the O.Ps.-2 to 4 with cost of Rs.10,000/-. 

Ops are jointly and severally directed to refund Rs.2,40,000/- to the complainant along with interest  at the rate of 10 percent per annum w.e.f 23.06.2014 till compliance within 30 days from the date of this order.

O.Ps. are further directed to pay Rs.50,000/- towards compensation for causing harassment, mental pain by adopting unfair trade practice and for deficiency in service to the complainant within the stipulated period.

The complainant shall be at liberty to this order into execution as per provision of Law.