O R D E R ; ( Per Shri B.R. Chandel, President).
The complainant Smt. Babli on the strength of this complaint has claimed that the opposite party be directed to refund Rupees 1,80,000/- with interest and to pay a compensation of Rupees 50,000/- for monetary loss, harassment and mental agony on the grounds that she is running business of ‘cloths’ under the name and style M/s Babli Cloth House at Barthi in District Bilaspur. The opposite party is visiting her shop and represented that he is a wholesale supplier of cloths and booked a order for supply of cloths from the complainant. The complainant made advance payment of Rupees 1,80,000/- for the supply of booked cloths, but the opposite party did not issue receipt of the said amount and also failed to supply the booked cloths which amounts to deficiency in service.
2. The opposite party disputed the said claim and has set up the defense that the complainant is running the business of cloths and allegedly advanced the amount for purchase of cloths for sale i.e. for commercial purpose, hence she does not fall within the definition of the consumer under the Consumer Protection Act and neither the complainant paid Rupees 1,80,000/- nor the opposite party received the same as claimed by the complainant hence the complaint is false. The opposite party has set up the defense that on 31-12-2007, the complainant along with her husband Sahil alias Manoj visited the opposite party and intended to purchase cloths for sale on the basis of deferred payment for which the opposite party agreed. Accordingly, the opposite party supplied the cloths as per orders during the period ranging 31-12-2007 to 17-05-2009 on different dates through 19 bills of the amount of Rupees 2,95,298/-. Out of the said amount the complainant made payment of Rupees 1,48,500/-, but failed to pay the remaining amount of Rupees 1,17,428/- upon which the opposite party was compelled to represent before ‘Bilkhuba Vypari Sangh, Bilkhuba’, for directing the opposite party to pay the said amount. The opposite party also had to file a complaint under Sections 406 and 420 of IPC in the court vide which the complainant and her husband have been summoned by the Court. The complainant has filed a false case which is not maintainable at all.
3. Both the parties have led evidence.
4. We have heard learned counsel for the parties and gone through the records of the complaint.
5. The complainant has not pleaded in the complaint the date on which he ordered for the supply of cloths and made the alleged payment of Rupees 1,80,000/- to the opposite party and as such the complainant has failed to prove the accrual of cause of action in his favour to file the present complaint against the opposite party. Vide para No.7 of the complaint he has claimed that the cause of action arose to him on 04-06-2011 when the opposite party has been served with registered legal notice. The alleged notice has not been placed on record. It apparently appears that the complainant has tried to create a cause of action at her own instance without there being actual facts which give rise to the creation of cause of action. Annexure C-5 is the reply of notice dated 04-06-2011 allegedly sent by the complainant to the opposite party on the basis of which the complainant has created an imaginary cause of action. The cause of action for the refund of alleged amount would have occurred only on the date when the same was given to the opposite party. But the complainant has not pleaded the actual date of cause of action, hence it is apparent that no cause of action has accrued in favour of the complainant to file the complaint.
6. In order to succeed in the complaint the complainant was bound to prove that he actually advanced an amount of Rupees 1,80,000/- to the complainant and on what date, but no evidence has been produced in support of said fact. Even the complainant has not filed his affidavit in evidence. He has relied upon a short affidavit Annexure C-1 which was filed with the complaint as a matter of procedure hence the claim of advancement of Rupees 1,80,000/- by the complainant to the opposite party is not substantiated at all by any iota of evidence and as such the claim is rendered false. The reply to the notice Annexure C-5 and rejoinder Annexure C-3 do not prove the advancement of Rupees 1,80,000/- to the opposite party. The complainant has also failed to explain as to why she has not filed any affidavit deposing and disclosing the date of advancement of the said amount. The reason for such disclosure is apparent because the complaint apparently appears to be false.
7. On the other hand, the opposite party in order to substantiate its defense has produced in evidence ledger Account w.e.f. 31-12-2007 to 15-02-2011 Annexure R-1 showing the account of the complainant and an amount of Rupees 1,17,428/- to be recovered from the complainant by the opposite party. The said ledger account settlement Annexure R-1 is duly supported and corroborated by the bills ranging between the period 31-12-2007 to 17-05-2009 Annexure R-20 down to Annexure R-2 respectively. The complainant has not challenged the authenticity and correctness of the statements of ledger account and the above stated bills, as a result of which it stands proved that the opposite party had to recover an amount of Rupees 1,69,428/- along with interest from the complainant. The opposite party has also filed a complaint under Sections 406,417,419, 420 and 506 of IPC against the complainant and her husband in the Court of Judicial Magistrate, Hapud, of District Gaziabad on 01-08-2011, the copy of which is Annexure R-22. In the said complaint the Judicial Magistrate has passed summoning order against the complainant and her husband on 30-01-2012 Annexure R-23. The opposite party has also represented the matter to ‘Bilkhuba Vastar Vypari Sangh’ which has issued notice dated 27-07-2012 Annexure R-21 to the complainant requesting her to make payment of the amount of Rupees 1,69,428/-.
8. In view of the evidence discussed and findings recorded above, this Forum is bound to conclude that the complainant has failed to prove any unfair trade practice or deficiency in service on the part of the opposite parties, but to the contrary it stands proved that the complainant has filed this false complaint with the ulterior motive, as a counter blast to the genuine claim of the opposite party to recover the amount due to him from the complainant and has dragged the opposite party to the court without any justifiable reason.
9. Not to say only this, the complainant allegedly booked the order for supply of cloths for sale in his business premises i.e. for commercial purpose. The complainant in para No.1 of the complaint has only stated by overwriting that since he is running business of cloth under the name and style M/s Babli Cloth House and running the said business for self employment. The complainant has not at all averred in the complaint that she intended to purchase the cloth for the purpose of earning her livelihood exclusively by means of self employing her. She has also not led any evidence to prove that she intended to purchase the cloth for earning her livelihood exclusively by means of self employment. In view of the said facts, in the opinion of this Forum, the complainant does not fall within the definition of the consumer as envisaged under Section 2(1)(d)(i) of the Consumer Protection Act, 1986, hence the complaint is also not maintainable on this score.
RELIEF:
In view of the findings recorded above, the complaint is dismissed. No orders as to cost. Let certified copy of this order be sent to the parties free of cost, as per rules. The file, complete in all respects, be consigned to the Records.
ANNOUNCED & SIGNED IN THE OPEN FORUM;
Today this the 23rd day of January, 2015.
( B.R. Chandel)
President
(Manorma Chauhan) (Pawan Kumar)
Member Member
