Sri. P. Satheesh Chandran Nair (President):

                   The complainant filed this petition u/s.12 of the C.P. Act 1986 for getting a relief from the opposite party.

                   2. The case of the complainant is stated as follows:  On 25.05.2013 the complainant approached the opposite party for the purchase of furniture in connection with the marriage of his daughter.  In order to purchase the furniture for an amount of Rs.1 lakh the opposite party arranged a loan from one Mulamoottil Consumer Credit Ltd. and on 18.06.2013 the said loan was sanctioned on the same day the financial institution issued a cheque for an amount of Rs.1 lakh to opposite party’s furniture shop.  According to him, due to the unexpected death of the proposed bride groom the marriage was not solemnised, subsequently the complainant approached the opposite party for the said furniture on 25.06.2013 but one way or other he reluctant to handover the furniture to the complainant.  Meanwhile, the above said finance company known as Mulamoottil Consumer Credit Ltd. filed a Civil Suit as O.S.No.1048/14 before the Munisiff’s Court, Thiruvananthapuram against the complainant for an amount or Rs.1 lakh along with an attachment petition.  The complainant informed all these facts to the opposite party but he did not settle the matter and at last the complainant remitted the said suit amount before the Munsiff’s Court and settle the said issue.  According to him, the act of the opposite party is highly affected to the complainant and the opposite party is liable to the complainant.  He has to repay the principal amount with interest and compensation to the complainant. 

           3.  The complainant filed this complaint before this Forum, we entertained the complaint and issue notice to the opposite party.  The opposite party entered appearance and filed their version as follows:  According to the opposite party the complaint is not maintainable either in law or on fact.  It is contended that the Mulamoottil Consumer Credits Ltd, Branch at Kottarakkara was issued loan to the complainant.  Hence that company is a necessary party in this case.  So the case is bad for non-joinder of necessary parties.  It is contended that on 04.06.2013, the opposite party issued an estimate of the furniture to the complainant for an amount of Rs.1,61,004/- only for the purpose of obtaining the loan from Mulamoottil Consumers Credit Ltd., Branch at Kottarakkara.  The said Mulamoottil Consumers Credit Ltd. has allowed a loan of Rs. 1 lakh and on 18.06.2013 the said finance company has issued a cheque for an amount of Rs.1 lakh to the opposite party through the complainant together with a supply order cum installation certificate.  It is also directed to the complainant that after the installation the supply order-cum installation certificate has to be returned to the finance company.  It is further contended that the above said cheque honoured and the opposite party sold one Sofa set, One Divan Cot, one Dining table and two telephone stand amounting to Rs.1,00,452/- to the complainant.  As stated earlier, a signed supply order cum installation certificate was also returned to the finance company.  It is stated that on 25.06.2013 the complainant had received the furniture from the opposite party and issued receipt to the finance company.  The opposite party has no knowledge with regard to the Civil case referred in the complaint and he is not at all a party of that proceedings.  It is submitted that the complainant is not entitled for any relief claimed and they requested to dismiss the complaint with cost.

          4. This Forum peruse the complaint, version and record before us and framed the following issues for consideration:

1. Whether the case is maintainable?
2. Whether the opposite party committed any deficiency in service as alleged by the complainant?
3. Regarding relief and costs?

                  5. The evidence of this case consists of the proof affidavit filed by the complainant as PW1 in lieu of chief examination and Exhibits marked as Exts.A1 to A8.  Ext.A1 is the transaction details of Mulamoottil Consumer Credits Ltd.  Ext.A2 is the copy of notice dated 20.06.2014.  Ext.A3 is the copy of attachment order dated 20.06.2014.  Ext.A4 is the copy of schedule dated 31.05.2014.  Ext.A5 is the receipt dated 19.08.2014 for Rs.1,33,000/-.  Ext.A6 is the copy of letter dated 17.09.2014 sent by Munsiff’s Court, Thiruvananthapuram to the Sub Registrar, Pathanamthitta.  Ext.A7 is the copy of First Information Report dated 09.10.2013 issued by Judl. 1^st Class Magistrate Court, Adoor. Ext.A8 is the copy of First Information Report dated 28.11.2013 issued by Judl. 1^st Class Magistrate Court, Adoor.  On the other side, DW1 to DW3 were examined and marked Ext.B1, B1(a) and B2 series.  Ext.B1 is the bill book. Ext.B1(a) is the relevant page of Ext.B1.  Ext.B2 series (4 pages) is the copy of tax invoice dated 21.06.2013 for Rs.1,00,452/-.  When we peruse the proof affidavit of the complainant as PW1, it is almost as per the tune of his complaint.  In his proof affidavit, it is categorically deposed that there is a clear deficiency in service on the part of the opposite party because he failed to handover the furniture after the receipt of the cheque amount of Rs. 1 lakh.  He deposed that the signature alleged to be seen in the supply order cum installation certificate is forged one and he did not sign any supply order as pleaded by the opposite party.  The opposite party also filed a proof affidavit in lieu of his chief examination and when we peruse his proof affidavit it also reveals that he deposed more or less as per the style and tune of his version.  In order to substantiate his contention he examined DW2 and DW3 in this case.  After the closure of the evidence of both sides, we heard the learned counsels appearing for either side. 

                                6. Point Nos.1 to 3:- Considering the nature and circumstances of this case, we would like to consider Point No.1 to 3 together.  The complainant in this case clearly pleaded that he availed a loan of Rs. 1 lakh from Mulamoottil Finance Ltd. and the said financial institution issued a cheque for the above amount in favour of the opposite party and the complainant handed over the said cheque to the opposite party.  The opposite party also admitted that he received the cheque amount as per the pleading of the complainant.  According to the opposite party, he received the cheque amount and supplied the furniture in question to the complainant.  Hence we can clearly come to a conclusion that the complainant paid Rs.1 lakh to the complainant and the same amount was received by the opposite party.  The complainant paid this cheque amount for purchasing furniture’s.  The opposite party raised another question before us that the case is bad for non-joinder of necessary parties.  In order to arrive a conclusion in this aspect when we peruse the evidence before us, it is evident to see that the complainant is a consumer of the opposite party and the opposite party is a service provider.  The complainant and opposite party admitted that Mulamoottil Finance Ltd. is the banker who issue a cheque for an amount of Rs.1 lakh in favour of the opposite party and the opposite party received the content of the cheque (Rs.1 lakh) we can easily arrived a conclusion that the Mulamoottil Finance Company is not a necessary party for the proceedings in this case because the complainant has no allegation against this finance company or the complainant has not seek any relief from this finance company.  For the above reasons, the contention of the opposite party with regard to non-joinder of necessary parties has not been sustained.  Hence Point No.1 found in favour of the complainant.

                   7. The complainant as PW1 specifically pleaded that he paid a cheque amount of Rs.1 lakh to the opposite party for the purchase of furniture’s.  The only question to be considered is whether the opposite party deliver the furniture to the complainant or not.  The complainant as PW1 deposed that due to the unexpected death of the proposed bride groom the proposed marriage was not solemnised.  Anybody can imagine the state of mind of a father of a daughter when he suffer a sorrow like this.  Even if, he suffered a mental pain as stated, he approached the opposite party for the delivery of the furniture.  It is evident to see that one way or other the opposite party was reluctant to handover the furniture in question to the complainant.  It is true that the opposite party pleaded that he received the amount of Rs.1 lakh and handed over all the furniture in time along with a supply order cum installation certificate to the complainant.  The question to be considered is whether the opposite party succeed to prove the said pleading to the effect that he delivered the furniture to the complainant in time.  As we discussed earlier, the cheque for an amount of Rs.1 lakh was cashed by the opposite party but the complainant failed to pay the amount since the Mulamoottil Consumer Credit Ltd. filed a suit as O.S.No.1048/14 before the Munsiff’s Court, Thiruvananthapuram and the complainant remitted the whole suit amount with interest before the Munsiff’s Court, Thiruvananthapuram and settled the said case.  Ext.A1 is the credit card issued by the Mulamoottil Finance Ltd. in favour of PW1, the complainant.  As per Ext.A1, it is proved that a loan amount including finance Rs.1,31,388/- was availed by the complainant for this transaction.  Ext.A2 to A4 are document relied to the Civil Suit O.S.No.1048/14 before the Munsiff’s Court, Thiruvananthapuram.  As discussed earlier, as the defendant in the case the complainant PW1 remitted the whole amount and settled that case.  As per Ext.A6, it can be seen that the attachment order against the property of complainant is lifted by Ext.A5.  The Ext.A5 dated 19.08.2014 shows that PW1 remitted Rs.1,33,000/- to Mulamoottil Consumer Credit Ltd. and closed the loan of Mulamoottil Consumer Credit Ltd.  In order to substantiate the contention of opposite party with regard to the delivery of furniture to the complainant at the time of cross-examination he (PW1) answered for a question.  “19.06.2013- ൽ O.P യുടെ cheque pass ആയെന്നും തുടർന്ന് 21.06.2013 ൽ sofa set, Diwan Coat, dining Table Set, Telephone Stand Set ഇവ O.P. bn യിൽ നിന്ന് കൈപ്പറ്റിയിരുന്നു എന്ന് പറയുന്നത് ശരിയല്ല. മുളമൂട്ടിൽ Finance Credit എന്ന സ്ഥാപനം cheque-þ- നൊപ്പം എനിക്ക് supply order cum installation certificate നൽകിയിരുന്നില്ല.”.  The opposite party failed to show the alleged supply order cum installation certificate to PW1 and verify the velocity of the said document.  PW1 is the best witness for giving clarification about this question.  He also answered in cross that he has filed a complaint before the concerned police station with regard to the supply of furniture.

                   8. In order to substantiate the case of the opposite party, DW1 produced and marked Ext.B1 bill book for the period of 04.06.2013 to 03.07.2013.  It is deposed that the bill No.174 of Ext.B1 was issued to the complainant.  The relevant page referred is marked as Ext.B1(a), which shows that a Sofa set, One Divan Cot, one Dining table and two telephone stand for an amount of Rs.1,00,452/- had been supplied to the complainant on 21.06.2013.  When we peruse the Ext.B1 bill book, it is to see that some of the pages of this Ext.B1 are incomplete and for example bill No.159 amount of Rs.7,328/- is shown but no name or any details are mentioned in that page.  With regard to the delivery note number, purchase order number despatch from etc. etc. are not filled by any one.  It is the case of the opposite party that he delivered the furniture to the complainant and he received the cheque amount Rs.1 lakh issued by Mulamoottil Finance Company Ltd.  If it be so, this details can be mentioned in the relevant portion of Ext.B1(a).  In order to substantiate the accuracy of Ext.B1, the opposite party failed to adduce any other evidence.  If this Ext.B1 is a genuine document what prevented the opposite party to produce any endorsement of sales tax or any other delivery details for this purpose?  Considering the above circumstances and the style of writing in Ext.B1, we find that this Ext.B1 is a cooked up document made only for this case.  It is interesting to see that the opposite party in this case strongly relying Ext.B2 series supply order cum installation certificate for proving the delivery of furniture.  The opposite party of this case strongly pleaded that the Consumer Credit Ltd. directed the complainant to return the supply order cum installation certificate after obtaining the signature of the supplier and the customer.  Here we can see that the space for the signature of the customer is blank in this case.  In the light of the evidence as per Ext.B2 series, it can be inferred that the pleading of opposite party to the effect that the furniture are delivered to the complainant in time has not been sustained.  When this DW1 is cross-examined by the learned counsel appearing for the complainant he admitted that certain corrections are made in Ext.B1 bill book and certain omissions are also seen in that bill book, for example, “Ext.B1- ൻറെ 192 ആം പേജിലെ date record പ്രകാരം തിരുത്തി എഴുതിയതായി കാണുന്നു എന്നത് ശരിയാണ്  Ext.B1 bookþ ലെ 159 മത് billþ ൽ purchaserþ ൻറെ address ചേർക്കാൻ വിട്ടുപോയിട്ടുണ്ട് ആയതിൻറെ original customer-þ ക്ക് കൊടുത്തിട്ടുണ്ട്   159 ആം bill ആർക്കാണ് കൊടുത്തത് എന്ന് ടി record പ്രകാരം പറയാൻ കഴിയില്ല.  159-þmw bill book എൻറെ custodyþ- യിൽ ഉള്ളതാണ്.  ടി bookþ ൽ address എഴുതി ചേർക്കാൻ താങ്കള്ക്ക് തടസ്സം ഇല്ലല്ലോ? (Q) അപ്രകാരം ചെയ്യാറില്ല. (A)”.  Though DW1 produced and marked Ext.B1, on the basis of his answer with regard to Ext.B1 bill book, we can see that he himself raised doubt about Ext.B1 bill book.  He further deposed that the sale tax department audited this Ext.B1 register.  But DW1 was not in a position to produce any document to prove that aspect.  He again answered, “വാദി വാങ്ങിയ സാധനം install ചെയ്യാൻ ഞാൻ ആരേയും വിട്ടിട്ടില്ല”.  As we discussed earlier, the main question in this case is with regard to the delivery of the furniture in question.  It is to see that DW1 deposed that he had not sent any person along with the furniture to the complainant’s house.  But it is interesting to see that DW1’s own witness DW3 deposed that he has taken the furniture’s from opposite party’s shop and he handed over all these furniture’s to complainant’s house. The evidence of DW1 and DW3 is self contradictory and hence we cannot rely the pleading of DW1 with regard to the delivery of the furniture’s.  The credibility of DW3 is also challenged by complainant’s counsel by producing Ext.A7 and A8.  Ext.A7 is an FIR registered against DW3 by Adoor Police Station under the relevant sections of Money Lenders Act and Ext.A8 is another FIR registered by the same police station against the DW3 u/s.420/34 of IPC.  It is also proved that the DW3 was a co-accused in a petition filed by this complaint before the C.I. of Police, Adoor.  DW2 is the Manager of the Kottarakkara Branch of Mulamoottil Consumer Credit Ltd.  At the time of chief examination, a supply order was marked as Ext.B2 and B2 series in this case.  He deposed that at the time of the delivery of the furniture he handed over the supply order along with the cheque and bill to the complainant and all these documents are returned by the complainant himself in his office.  When we peruse the purchase order Ext.B2, it can be seen that in that supply order the space for the signature of the customer is seen vacant.  On the basis of the evidence with regard to the supply order, the opposite party failed to prove its genuineness.  When we examine the cross-examination of DW2, it reveals that he purposefully evading from the questions and give improper answers to certain questions.  His ignorance with regard to the case principal Munsiff’s Court, Thiruvananthapuram (O.S.No.1048/14) and the production of that case records are create genuine doubt about the reliability of this witness.  He also admitted in his cross-examination, “ഞാൻ ഹർജികക്ഷിയ്ക്ക് വേണ്ടി കൊട്ടാരക്കര മുളമൂട്ടിൽ കണ്സ്യൂമർ ക്രെഡിറ്റ് ലിമിറ്റഡ് എന്ന സ്ഥാപനത്തിൽനിന്നും ലോണ് എടുക്കുന്നതിലേക്ക് ജാമ്യക്കാരനായി നിന്നിട്ടുള്ളതാണ്. ടി സ്ഥാപനത്തിൽ നിന്നും ലഭിച്ച ചെക്ക് ഹർജികക്ഷി എതൃകക്ഷി സ്ഥാപനത്തിൽ കൊണ്ട് നൽകിയിട്ടുള്ളതും തുടർന്ന് 21.06.2013- ൽ  ഹർജികക്ഷി എതൃകക്ഷി സ്ഥാപനത്തിൽ നിന്നും സോഫാസെറ്റ് ദിവാൻകോട്ട് ഡൈനിംഗ് ടേബിള് രണ്ട് ടെലിഫോണ് സ്റ്റാൻറ് എന്നിവ വാങ്ങി കൊണ്ടുപോയിട്ടുള്ളതാണ് ഞാനും കൂടിയാണ് ടി സാധനങ്ങള് വീട്ടിൽ എത്തിച്ചത്”.

                   9. On the basis of the above discussion, it is clearly revealed that the complainant in this case paid an amount of Rs.1,00,452/- as the value of the furniture in question but the opposite party did not deliver the furniture’s to the complainant.  The complainant herein is successfully proved his case beyond doubt.  When we peruse the evidence adduced by the opposite party it is to see that DW1 and DW3 are close friends and as a result of conspiracy between them the opposite party purposefully not deliver the furniture to the complainant.  Anyway, the opposite party alone is responsible for the failure of delivery of furniture to the complainant and thereby as a service provider he who received a huge amount from this complainant purposefully acted as stated above and thereby he committed deficiency in service and unfair trade practice against the complainant.  It is also come out in evidence that the complainant ordered all these furniture’s for the marriage of his daughter.  Due to the unexpected death of the proposed bride groom the said marriage was not solemnised and all that circumstances are now changed.  Therefore, we find that at present the complainant does not in need of any furniture but he is eligible for the amount paid for the same.  Therefore, the complaint is allowable and Point No.2 and 3 are also found in favour of the complainant.

                   10. In the result, we pass the following orders:

1. The opposite party is directed to pay the price of the furniture (ie. a Sofa set, One Divan Cot, one Dining table and two telephone stand) for Rs.1,00,452/- (Rupees One Lakh four hundred and fifty two only) to the complainant with 10% interest from the date of order onwards.

2. The opposite party is also directed to pay a compensation of Rs.15,000/- (Rupees Fifteen Thousand only) and also a cost of Rs.3,000/- (Rupees Three Thousand only) to the complainant with 10% interest from the date of this order onwards.

         Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 29^th         day of July, 2016.

                                                                        (Sd/-)

                                                     P. Satheesh Chandran Nair,

                                                                    (President)

Smt. K.P. Padmasree (Member – I)             :   (Sd/-)

Smt. Sheela Jacob (Member- II)                 :   (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  B. Rajan

Exhibits marked on the side of the complainant:

A1 :  Transaction details of Mulamoottil Consumer Credits Ltd. 

A2 :  Copy of notice dated 20.06.2014. 

A3 :  Copy of attachment order dated 20.06.2014. 

A4 :  Copy of schedule dated 31.05.2014. 

A5 :  Receipt dated 19.08.2014 for Rs.1,33,000/-.

A6 :  Copy of letter dated 17.09.2014 sent by Munsiff’s Court,  

        Thiruvananthapuram to the Sub Registrar, Pathanamthitta. 

A7 :  Copy of First Information Report dated 09.10.2013 issued by Judl.

        1^st Class Magistrate Court, Adoor.

A8 :  Copy of First Information Report dated 28.11.2013 issued by Judl.

        1^st Class Magistrate Court, Adoor. 

Witness examined on the side of the opposite party:

DW1  :  C.V. Jolly

DW2  :  Alexander John

DW3  :  Nizam. A

Exhibits marked on the side of the opposite party:

B1 :  Bill book.

B1(a) :  Relevant page of Ext.B1. 

B2 series (4 pages) :  Copy of tax invoice dated 21.06.2013 for Rs.1,00,452/-.

                                                                                              (By Order)

Copy to:- (1) B. Rajan, Mini House, Thuvayoor Thekku Muri,

                    Kadampanadu Village, Adoor Taluk.

               (2) C.V. Jolly, Chamakkattu House, Vazhappally,

                    Kannamkodu, Adoor.

               (3)  The Stock File.