Orissa

Cuttak

CC/295/2013

Rahul Agarwal,Director,Bhartiaya Distibuter Pvt Ltd - Complainant(s)

Versus

Dhruv Bhatia,Durga Engineering Company - Opp.Party(s)

R K Pattanaik

20 Mar 2017

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

C.C No.295/2013

 

M/s. Bhartiaya Distributer Pvt. Ltd.,

Represented through its Director Sri Rahul Agarwal,

Office at Pilligrim Road,College Square,

Cuttack-753003,Odisha.                                                              … Complainant.

 

                Vrs.

 

 DURGA ENGINEERING COMPANY,

Represented through Authorized Signatory,

Mr. Dhruv Bhatia,

At:E-61/1,B.S.Road,Near Mukhargi Park,

Ghaziabad,Utter Pradesh.                                                              … Opp. Party.

 

Present:               Sri Dhruba Charan Barik,LL.B. President.

Sri Bichitra Nanda Tripathy, Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:   12.12.2013

Date of Order: 20.03.2017

 

For the complainant       :    Mr. R.K.Pattnaik,Adv. & Associates.

For the O.P.                       :    Sri P.K.Tyagi,Adv. & Associates.

 

Sri Bichitra Nanda Tripathy,Member.

                The case is against deficiency in service on the part of O.Ps.

1. The case in nutshell is that the complainant is an authorized dealer of Tata steel having its business as well as office and godown at Cuttack.  He usually receives iron and steel materials from Tata steel in different sizes and shapes and use to supply such materials to its dealers and customers by cutting such materials in to different sizes and shapes as required by such customers/dealers.  The complainant wanted to place order with the O.P (who is a manufacturer of different types of steel and iron materials cutting machines having its manufacturing unit and office at Ghaziabad,UP).  After mutual discussion the O.P submitted a quotation through E.Mail on 09.05.2011 wherein the O.P had not only quoted the price of such machines but also specified certain terms and conditions relating to supply  such machines to the complainant (copy of such quotation dt.9.5.2011 is annexed vide Annedure-1).  As per terms and conditions of contract 40% of total price was to be paid as advance and balance amount was to be paid against despatch of machines.  The machines would be delivered within 90 to 100 days from the date of purchase order.  As per said quotations, total price of said three cutting machines was Rs.51 lakhs.  The complainant paid Rs.10 lakhs to the O.P vide cheque no.059180 dt.17.06.2011 on SBI,Commercial Branch,Cuttack and also paid a sum of Rs.21,000/- in cash towards advance with the hope that the O.P will supply such machines within the stipulated time of 100 days.  But the O.P did not supply such machines in time and avoided to make any correspondences with the complainant.  Due to such in ordinate delay, the complainant suffered from financial loss due to non-availability of such cutting machines.  After waiting for about one year, the complainant was forced to cancel the purchase order and requested the O.P to refund the advance amount of Rs.10,21,000/- along with interest @ 12% per annum vide its letter dt.4.5.2012(Annexure-2).  The O.P replied vide their letter dt.4.5.12 that after receiving such order and advance, the O.P had asked the complainant regarding some technical specifications which the complainant confirmed after 20/25 days and the machines were prepared accordingly but again the complainant changed his views and wanted to supply the machines as per original purchase order.  Since the machines were already prepared as per specifications as intimated by the complainant the O.P intimated that unless such machines are lifted the advance amount shall be forfeited.  (Annexure-3).  Since the complainant has not made any change in the original purchase order, the allegation made by the O.P is false and intended to avoid liability to refund the advance amount of Rs.10,21,000/- in a illegal way.  Since the complainant failed to solve the matter with the O.P through mutual discussions, a legal notice was issued to the O.P by the complainant on 11.3.2013(Annexure-4) but it yielded no result.

Finding no other way, the complainant took shelter of this Hon’ble Forum.  He has prayed to direct the O.P for refund of the advance amount i.e. Rs.10,21,000/- with interest @ 18% per annum  from the date of receipt  i.e. 17.6.2011 till date of actual payment, to pay Rs.5,00,000/- as compensation towards loss of business and Rs.3,00,000/- as compensation towards mental agony and Rs.50,000/- towards litigation expenses.

2. The O.P vide their written version dt.15.2.2014 has intimated that the complainant has paid a sum of Rs.10,21,000/- as advance but was not in a position to submit its technical requirement within time and it was informed by the officials of the complainant that they would submit technical details after confirmation from TATA.  The O.P did their job within the stipulated time but it was the officials of complainant who were not in a position to submit the technical details within time and later on changed the same after completion of the machine as ordered by them.  They have also stated that the ordering party could have taken delivery at Ghaziabad and the same would have despatched in case requested by the ordering party (i.e. complainant) at the cost of the ordering party.  Even if there is no provision regarding forfeiture of advance amount in the quotation but the O.P has incurred huge expenses in manufacturing such machines and such machines are lying idle with the O.P because the complainant did not take delivery of such machines without any fault of the O.P for which the advance amount is not refunded.  Moreover the total cost of such machines were 51 lakhs and as per quotation 40% of the same should have given as advance which comes to Rs.20,40,000/- whereas only Rs. Rs.10,21,000/- was given as advance.  Thus it is clear that the complainant has not paid the required amount of advance and induced the O.P to manufacture the machine, latter on changed the specifications/designs and did not lift the machines by paying the balance cost/price of the machine as agreed.  The O.P was intimated regarding the specifications regarding manufacturing of such machines after 20-25 days and while such machines were ready again such specifications were changed.  They have also intimated that this Hon’ble Forum has no jurisdiction to entertain the complainant.
3. We have gone through the case in details, perused the documents/versions as filed by both the sides, heard the learned advocates from both sides at length and observed that the complainant had placed order to purchase 3 steel cutting machines from the O.P.  The total cost of such machines were Rs.51 lakhs against which 50% of such cost should have paid as advance which comes to Rs.2,40,000/- against which only Rs. Rs.10,21,000/-was paid as advance.  The rates were Ex-works, Ghaziabad and transport charges would be extra.  It was not mentioned in the quotation dt.9.5.2011 that the delivery will be made at Cuttack.  The complainant had placed order with the O.P on 9.5.2011.  But the complainant has not submitted the copy of order placed with the O.P for such cutting machines.  The machines were supposed to be delivered within a period of 100 days but the complainant has not produced any proof regarding the follow ups made with the O.P for the purpose prior to 01.01.2013.  The letter of the complainant dt.01.01.2013 is issued after lapse of a period of one year seven months and 20 days for the reasons best known to the complainant.  Vide their letter dt.1.1.2013 the O.Ps have intimated the complainant to lift the machine and if not interested the advance paid by the complainant is being forfeited.  Regarding the advance amount of Rs.10,21,000/- as paid by the complainant , the complainant although intimated that Rs.10,00,000/- was paid through his account with SBI,Commercial Branch, Cuttack but the complainant has not produced any receipt/document towards payment of cash worth Rs.21,000/-.  There is no proof regarding the way it was paid and how it was paid.  The complainant has also failed to prove that such advance in cash was paid through the agent of the O.P at Cuttack.  Thus the complainant has failed to prove that a part of the cause of action has arisen at Cuttack.
4. Basing on the facts and circumstances as stated above and also basing on the decision as decided by Hon’ble National Commission vide case S. K. Jyengar Vrs. Bombay Hospital & Medical Research and Centre and others, 2001(1) CPR(29)(NC), we conclude that the mere fact  that the amount of advance for the machines was remitted through SBI,Cuttack will not entitle the complainant to contend that any part of the cause of action had arisen in Cuttack. 

Hence the case is dismissed.

Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 20^th day of March,2017 under the seal and signature of this Forum.

 

   (Sri B.N.Tripathy )

                                                                                                         Member.

                                                                                                                 

                                                                                                   (  Sri D.C.Barik )

                                                                                                           President.

 

                                                                                                    (Smt. Sarmistha Nath) 

                                                                                                  Member(W).