Punjab

Ludhiana

CC/15/230

Gurdev Bhatia - Complainant(s)

Versus

Deepak Sachdeva - Opp.Party(s)

R.K.Sooden ADv.

06 Jun 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 230 of 06.04.2015

Date of Decision            :   06.06.2016

 

Gurbax Bhatia, aged about 56 years son of Sh.Kharaiti Lal Bhatia, C/o Bhatia Store, B-XXVI-668/A, Pakhowal Road, Ludhiana.

….. Complainant

                                                         Versus

Deepak Sachdeva, aged about 30 years, resident of House No.147-B, Rajguru Nagar, Ludhiana.

2^nd Address: C/o Star Multimedia Production, S.C.O.No.123, 5^th Floor, Feroze Gandhi Market, Ludhiana.

…Opposite party

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS. BABITA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :        Sh.Vikas Bhandari, Advocate

For OP                           :        Sh.Kamaljit Sharma, Advocate(OP Ex-parte)

 

PER G.K.DHIR, PRESIDENT

 

1.           Complainant doing his business under the name and style of Bhatia Store filed complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter in short referred to as ‘Act’) against OP by claiming that initially he was carrying on business at Chaura Bazar, Ludhiana and thereafter, he opened a new store at Pakhowal Road, Ludhiana, due to which, he felt necessity of advertisement of his business venture through electronic media. On proclamation of OP of providing services in respect of advertisement through electronic media, an oral agreement arrived at between the parties, through which OP created short advertisement with respect to the new store of the complainant. That short advertisement was got to be flashed in renowned PVR Cinemas at Silver Arc, Ludhiana from 19.12.2014 to 18.01.2015. As per that agreement, advertisement was to be shown in every show in every movie throughout the period between 19.12.2014 to 18.01.2015. As per that agreement, complainant was to pay Rs.27,000/- as full payment including preparation of the advertisement by OP and flash thereof through PVR Cinemas referred above. On request of OP, complainant paid Rs.20,000/- in advance and balance amount of Rs.7000/- was to be paid after 15 days, when OP to start showing the advertisement through PVR Cinemas as per the settlement. That payment of Rs.20,000/- made through cheque got encashed by OP. Though OP created the advertisement, but did not flash the same as per the settlement or agreement. Op failed to fulfill his promise of flashing the advertisement, despite numerous requests of the complainant and that is why, by pleading deficiency in service on the part of OP, refund of Rs.20,000/- along with interest @18% p.a. and compensation for mental harassment of Rs.1 lac and litigation expenses of Rs.22,000/- claimed.

2.                In written statement filed by OP, it is pleaded interalia as if the present complaint is not maintainable in the present form; complainant has created a false story regarding oral agreement and that the complainant has no cause of action against the Op. OP was married with Bhawna Sachdeva, who is running the firm known as M/s Divansh, being the proprietor. Said Bhawna Sachdeva deal with the business of advertisement for the last many years. However, a matrimonial dispute between OP and his wife is pending, due to which, both of them are residing separately since from October, 2014. It is claimed that this false complaint filed in connivance with said Bhawna Sachdeva for harassing OP, despite the fact that OP has no link or concern of any kind with firm M/s Divansh. Complainant is not a partner of the said firm M/s Divansh. Rather, OP does not know the complainant even and as such, the alleged transaction never conducted between the complainant and OP. The cheque in question was issued in the name of Firm M/s Divansh, the firm run by Smt. Bhawna Sachdeva till date. No contract was ever arrived at between the complainant and OP and as such, by denying each and every averment of the complaint, prayer made for dismissal of the complaint.

3.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.CW1/1 to Ex.CW1/6 and thereafter, his counsel closed the evidence.

4.                On the other hand, despite grant of sufficient opportunities to the OP, no evidence was produced. Sh.Deepak Sachdeva Op appeared in person on 16.7.2015 and thereafter, he put in appearance through counsel. Complainant closed his evidence on 15.10.2015 and thereafter, case was posted for evidence of OP for 18.11.2015. On the adjourned dates of 18.11.2015 and 15.12.2015, none appeared for OP despite wait till 3:15 P.M. and 2:30 P.M respectively of those dates and as such, OP was proceeded against ex-parte vide order dated 15.12.2015. Quorum was not complete on some of the adjourned dates and thereafter, on 18.4.2016, Sh.Kamaljit Sharma, Advocate filed Vakalatnama as well as application for setting aside ex-parte order dated 18.11.2015. In fact that order of proceeding ex-parte against Op is of date 15.12.2015. After hearing arguments on that application, the same was dismissed by keeping in view the law laid down by the Hon’ble Apex Court of Country in Civil Appeal No.4307 of 2007 titled as Rajeev Hitendra Pathak and others vs. Achyut Kashinath Karekar and another decided on 19.08.2011. However, liberty was given to the counsel for OP to address the arguments and that is why arguments of counsel for OP even heard along with counsel for the complainant.

5.                Written arguments not submitted by any of the parties. Records gone through minutely.

6.                In para no.4 of the complaint, it is specifically pleaded that complainant paid Rs.20,000/- to the OP through cheque and the said cheque was got encashed by OP. However, it is the case of OP that Firm M/s Divansh carrying on business of advertisement and OP has no concern with that firm. Rather, it is the case of the OP that estranged wife of Op namely Smt.Bhawna Sachdeva is carrying on the business of M/s Divansh. As per the case of OP, no written or oral agreement was arrived at between the complainant and OP. Even though evidence in that respect has not been adduced, but despite that after going through the copy of statement of account of complainant concern Ex.CW1/1 as maintained by Corporation Bank, it is made out that cheque No.0235862 of Rs.20,000/- got encashed in the name of Divyansh on 22.11.2014. It is not the case of complainant that payment was made through cheque to Divyansh, but the case of the complainant is that this cheque got encashed by Op. Complainant unable to show as to what concern OP               has with that Firm of M/s Divansh. If that be the position, then certainly payment of Rs.20,000/- through cheque was not received by OP, but by Firm M/s Divansh. In para no.9 of affidavit Ex.CA of complainant, it is reiterated as if cheque of Rs.20,000/- got encashed by OP as revealed by copy of statement of account  Ex.CW1/1. However, copy of that statement of account does not disclose the encashment of the cheque by OP, but the same discloses the encashment of the same by Divyansh. In the affidavit Ex.CA as well as in the complaint, it is nowhere mentioned as to what concern  OP has with M/s Divansh. Being so, averments of the complaint or of affidavit Ex.CA are false that amount of Rs.20,000/- received by OP on encashment of cheque as reflected in Ex.CW1/1. It is for the complainant to prove his case qua payment to OP, but from the produced documentary evidence, it is not established that payment of Rs.20,000/- through cheque actually was made to the OP Mr.Deepak Sachdeva. If that payment of Rs.20,000/- to OP not established, then certainly OP not liable to provide the services in question.

7.                Counsel for the complainant by taking us through Ex.CW1/2 to Ex.CW1/6 vehemently contends that  as  mobile No.92178-78000 of OP reflected on these documents and as such virtually Op sent the created advertisement through SMS’s. Copies of those SMS’s are Ex.CW1/3 to Ex.CW1/5. Even if these SMS’s may have been sent by OP because of mentioning of mobile number of OP as reflected on visiting card Ex.CW1/2 as well as on Ex.CW1/3 to Ex.CW1/5, despite that payment of Rs.20,000/- to OP is not proved. Rather, after going through visiting card, copy of which is Ex.CW1/2 produced on record, it is made out as if OP carrying on business under the name and style of Star Multi Media Production by appointing Manager Mr.Rajeev Chhabra. If OP carrying on business under the name and style of Star Multi Media Production as reflected by Ex.CW1/2, then question of receipt of payment by him through M/s Divyansh does not arise because complainant was to get the payment in his account or in the account of the firm run by him and not in the account of the firm of somebody else. So, flashing of SMS’s through mobile of OP alone will not prove that alleged oral agreement was executed between the complainant and OP, due to which, payment of Rs.20,000/- was received. Rather, payment shown to be made to Divyansh through Ex.CW1/1 and not to OP or his concern and as such, OP is not liable to render the required services. In view of that deficiency in service                       to OP cannot be attributed, particularly when un-exhibited photostat copy of cheque produced by counsel for the OP, during the course of arguments shows as if signature of Bhavna are there as authorized signatory for Divyansh Advertisers on this cheque drawn at State Bank of Patiala, Model Town   Branch, Ludhiana. So, copy of this cheque shows as if Bhavna is the authorized signatory for Divyansh Advertisers. So, payment received by Divyansh cannot be taken as payment received by Op or on his behalf. Whether or not, there is a matrimonial dispute between the OP and his wife Smt. Bhavna Sachdeva qua that nothing need be commented here because legal identity of husband stands on independent footing than that of wife in matter of business transactions or rendering services to the customers. As deficiency in service on the part of OP not proved and as such, complaint merits dismissal.

8.                Therefore, as a sequel of the above discussion, complaint dismissed without any order as to costs. Copies of order be supplied to the parties free of costs as per rules. 

9.                File be indexed and consigned to record room.

                                                            

                      (Babita)                                     (G.K. Dhir)

            Member                                        President

Announced in Open Forum

Dated:06.06.2016

Gurpreet Sharma.