DATE OF FILING                    :     20-09-2013.

DATE OF S/R                            :      29-10-2013.

DATE OF FINAL ORDER      :     18-08-2014.  

Sri Utpal Das,

son of late Batakrishna Das,

residing at Village – Gabrial, P.O.  Gujarpur,

P.S. Shyampur,  District –Howrah,

PIN – 711314. ----------------------------------------------------------------  COMPLAINANT.

-          Versus   -

Bibima Bricks Works,

formerly known as ‘Anand Brick Mfg. Co.’

a  partnership firm having its works and office

at village & P.O. Dakshin Shibpur ( Jallabaj ),

P.S. Shyampur, District – Howrah,

PIN – 711314, being represented by its partners namely –

1.      Sri Ashis Kapri,

      son of Sri Chittaranjan Kapri,

      residing at Village – Chandpur, P.O. Sasati, P.S. Shyampur,

      District – Howrah,

      PIN – 711314.

2.      Sri Sukumar Fadikar,

son of late Upendra Nath Fadikar,

residing at Village  & P.O. Jallabaj, P.S. Shyampur,

District – Howrah,

PIN – 711314. -----------------------------------------------------OPPOSITE PARTIES.

                                                P   R    E     S    E    N     T

President     :     Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.

Member      :      Shri P.K. Chatterjee.

Member       :     Smt. Jhumki Saha.

                                                 F  I   N   A    L       O   R   D    E     R

1.                  Complainant, Utpal Das,  by filing a petition U/S 12 of the C .P. Act, 1986 ( as

amended up to date ) has prayed for a direction to be given upon the o.ps.  to deliver 71550, number one bricks or to refund Rs. 3,45,000/- being full consideration value of the said bricks, to pay Rs. 1,55,000/- as  compensation  for causing severe mental agony with litigation costs and  other relief or reliefs as the  Forum may deem fit and proper.

2.               Brief facts of the case is that complainant paid Rs. 3,45,000/- in total to the o.ps. on 19-11-2011 & 07-02-2012 for purchasing of  71,550, No. 1 bricks from o.ps. vide Annexure money receipts A 74 & A 99 for his personal use. And it was decided that o.ps. would deliver the total number of 71,550 bricks by June, 2012.  The name of the company was ‘Anand Brick Mfg.  Co.’ Subsequently, the name of the complainant was changed and it  started running under the name and style as ‘Bibima Brick Mfg.  Co. In the month of April, 2012 complainant went to o.p.’s office to enquire about the supply of bricks. And he was assured that within June, 2012, the entire supply would be made. So he returned with all hope. But all his hope went in vain when even in the last week of June, 2012, the said bricks were not delivered as per the contract. Thereafter, complainant visited o.p.’s office for several times such as on 09-11-2012, 19-11-2012, 20-04-2013, 25-06-2013, 20-08-2013.  And all the time, he was given assurance of delivery. After passing a long period, only on 15-09-2013, o.ps. refused to supply the bricks which caused severe mental agony and harassment to the complainant. Being frustrated and finding no other alternative, complainant filed this instant petition praying for the aforesaid relief.    

3.               Notices were served. They   appeared and filed  written version. Accordingly, case was heard on contest.

4.               Upon pleadings of both parties two points arose for determination :

i)          Is there any deficiency in service on the part of the O.Ps.  ?

ii)                  Whether the complainant is  entitled to get any relief as prayed for ? 

DECISION  WITH   REASONS      :

5.               Both the points are  taken up together for consideration. O.p. no. 1, Ashis Kapri, in his written version has denied and disputed  all allegations of the complainant with a specific plea vide para 13 that initially the company was run by him when he took all money from the complainant. As o.p.  no. 1 started facing a financial loss in the said business, he took another person, namely, Sukumar Fadikar as his 90% partner of the company. And it was also decided and agreed between them that all previous liabilities and responsibilities would be undertake by this new partner, i.e.,  Sukumar Fadikar. So, now, he has nothing to do in this regard as he has no liability towards the complainant. But no partnership deed has been annexed by o.p. no. 1 which could have enabled us to go through the terms and conditions of their partnership agreement. From the annexures, it is very much evident that all money was received by o.p. no.1, being  Ashis Kapri. O.p. no. 2 also filed written version contending therein that complainant wanted to enter into the management of ‘Anand Brick Mfg. Co.’. So the complainant deposited such amount. Even o.p. no. 2 addressed complainant as a broker of bricks. But complainant filed additional affidavit in reply and stated that only to construct his two storied building, he paid all money to the complainant. O.P. no. 2 has also categorically denied the fact in para 7 & 8 of his written version that the complainant paid  Rs. 3,45,000/- to o.ps. O.p. no. 2 even stated some other facts in his written version vide para 14 which has got no relation with the allegations made out by the complainant against o.ps. On perusal of the Annexures i.e., the money receipts vide  Annexure A74 & A99, we find all the money was received by o.p. no. 1, Ashis Kapri. And o.p. no. 2 has now become a partner of the company. So, the liability of supply of bricks also vests upon o.p. no. 2. O.p. no. 2 cannot avoid that responsibility. By not supplying the bricks in time, complainant was put under inexplicable difficulties by the o.ps. He could not finish his construction of building which is of utmost need.  O.ps. were very much negligent in discharging their duties towards complainant. During the course of hearing, o.p. no. 1 paid Rs. 15,000/- to the complainant. But at the time of final hearing, both the o.ps. remained absent. So, it is crystal clear that o.sp. are at fault. Accordingly, we find o.ps. to be deficient in providing service to the complainant. And we are of the candid opinion that it is a fit case where the prayers of the complainant shall be allowed. Points under consideration are accordingly decided.

      Hence,

                                    O     R     D      E      R      E        D

      That the C. C. Case No. 331 of 2013 ( HDF 331 of 2013 )  be  allowed on contest with  costs  against  the O.Ps. 

      That the  O.Ps. are jointly and severally directed to pay Rs.  3,30,000/- ( Rs. 3,45,000- Rs. 15,000/-)  to the complainant.

       That the complainant do get an award of Rs. 15,000/- as compensation and Rs. 5,000/- as litigation costs.

      That the o.ps. are jointly and severally  directed to pay the entire  decreetal amount of Rs. 3,50,000/-  to the complainant  within one month from the date of this order i.d., the aforesaid  amount shall carry an interest @ 10% per annum till full realization.              

      The complainant is at liberty to put the decree into execution after expiry of the appeal period.

      Supply the copies of the order to the parties, as per rule.            

DICTATED  &    CORRECTED

BY   ME.  

      (  Jhumki Saha  )                                                                  

  Member, C.D.R.F.,Howrah.