05-12-2014 -  The reasons for delay in disposal of this appeal can be seen from the order sheet.

             Heard the parties.

          This appeal has been filed by the Opposite Party / appellant (referred to as the Seller) against the order dated 07.07.2011 passed in C.C.No. 420/2010 directing him to pay an amount of Rs. 20,000/- as compensation and litigation cost and to remove the alleged defects in the supplied Computer and to make it workable within 30 days of the order.

2.       Mr. J.K. Pasari, learned Counsel appearing for the Seller assailed the impugned order on various grounds, whereas Mr. Sachin Kumar, learned Counsel appearing for the Complainant/ Respondent (referred to as the Purchaser) supported it.

3.       The Purchaser filed the present complaint alleging interalia as follows.

The Seller agreed to supply Computers at the existing market price and provide free maintenance for one year and warranty should be mentioned on the Cash memo. Accordingly he paid a sum of Rs. 3, 46,251/- vide pay order dt. 12.11.2009 issued by the Bank in favour of the Seller being the payment of ten Computers and other accessories. On 16.11.2009, five Computers @ 22,020/= each were supplied but without CD Writer which are parts of C.P.U. The Seller also promised that C.P.U will be assembled with Double RAM but he provided Single RAM. The Seller agreed to supply the said articles while delivering the rest five Computers. The Computer stopped functioning after about a week, about which a complaint was made to the Seller. The Purchaser got the Computer checked by a Software Engineer. Each of the Computers were found assembled of defective devices except the Hard Disk. The Seller charged more price than the market rate. The Purchaser refused to accept delivery of the rest five Computers and demanded return of the money, which the Seller returned but it was less than the money charged. Inspite of the repeated complaints the Seller neither replaced nor returned the full amount of the defective Computers. The Purchaser sought direction to replace the defective Computer with new one and return the excess amount of Rs. 60,200/- or to pay the amount of all the ten Computers along with 30,000/- as compensation and 8,500/- as litigation cost.

4. The Seller denied and disputed the said allegations. According to him, it will appear from the quotation itself that the CD Writer was not included in the quotation; the quotation was for one G.B. RAM and not two G.B. RAM. The allegations of the Purchaser are absolutely wrong. He did not make any complaint either oral or in writing or by telephone till the filing of the complaint. However, on the call of the Purchaser an engineer was sent thrice and everything was found OK. After about two months of receiving quotation, the Purchaser purchased the Computers after being fully satisfied about the rate and therefore it is wrong to say that the Seller charged more price. The Purchaser obtained loan from the Bank on the basis of quotation of ten Computers and other machines and then he personally took back the amount of five Computers from the Seller and then purchased only Five Computers. The Seller had to make a sale return memo and return the balance amount by cheque. Due to this bogus and mischievous complaint, the Seller has suffered huge loss.

5.       It appears that the Purchaser obtained a quotation dt.03.09.2009 from the Seller for ten Computers, one Xerox Machine and one Printer to the tune of Rs. 3,46,250/- . In the quotation, the configuration of the Computers was one G.B. RAM and not two G.B. RAM as claimed by the Purchaser. Similarly, the quotation was not for CD Writer devices as claimed by the Purchaser. Then after more than two months, the Purchaser got the said amount of quotation paid to the Seller, through Banker’s cheque dated 12.11.2009 and as per the instruction of the Bank, the Seller supplied the goods as per the quotation. Then it appears from the Bank account of the Seller that Rs. 2,31,600/- was returned  to the Purchaser by the Seller on 18/19 November, 2009 i.e. within a week of the said Purchase and a fresh invoice for only five Computers with 14 blank CD, was got issued by the Purchaser for Rs. 1,14,650/=. The Purchaser issued a receipt, to the effect that against the payment made through Bank to the tune of Rs. 3,46,250/- , he received goods worth Rs. 1,14,650/- and got back Rs. 2,31,600/- through cheques issued by the Seller. It further appears that the Seller made a sale return memo on 19.11.2009.

6.       According to the complaint petition, the Computer stopped functioning after about a week of purchase, about which he made complaints to the Seller. In the written statement filed by the Seller he stated that there was no oral/ written/ telephonic complaint till the filing of the complaint by the Purchaser. However, when called, he sent the engineer thrice and found everything OK.

7.       Thus, as per the Purchaser, the Computer stopped functioning after about a week but there is nothing to show that the problem if any, continued and were not sorted out till filing of the complaint. During this long period after the purchase of the Computers, if the Computers were not working and the Seller was not responding, the Purchaser was expected to make a complaint in writing also, but there is no chit of paper showing that the Purchaser made complaint to the Seller up to filing of the Complaint.

8.       Secondly, the allegation of the Purchaser that the goods were not supplied as per the quotation is absolutely wrong, as it would appear from the quotation itself. Quotation was for One G.B. RAM and not for two G.B. RAM; and C.D. Drive was not there in the quotation. Thirdly, the allegation of charging higher price than the market price appears to be also wrong as the purchase of the Computers was made after about two months from getting the quotation. Fourthly, the allegations made in the Complaint Petition are contrary to the materials brought on record.

          Thus, in our opinion, the Purchaser has failed to prove that there was deficiency in service by the Seller.

9.       Mr. Pasari appearing for the Seller argued that the Purchaser has not come with clean hands. He got the amount of ten Computers paid through the Bank by obtaining quotation from the Seller for ten Computers and other machines but then returned five Computers and got the balance money back.

10      Mr. Sachin Kumar, appearing for the Purchaser submitted that if the Purchaser has done anything wrong with the Bank loan, such matter is between the Purchaser and the Bank and the Seller is not concerned with the same.

11.     It is true that the Seller is not concerned with this  aspect, but this Forum can look into the conduct of the parties. As noticed above, the Purchaser made apparently false allegations in the Complaint. He obtained quotation for ten Computers etc. from the Seller, got the entire amount of quotation paid through Bank and then returned five Computers and got the amount of five Computer back directly. Some doubt on such transaction is created. However, even if this aspect is ignored, it has already been held hereinabove, that the Complainant failed to prove his case.

12.     Further ,in this appeal,  the Seller filed a rejoinder on 20.3.2004 to the counter affidavit filed by the Purchaser annexing some documents downloaded from the Website of the Purchaser i.e.

13.     No reply to this rejoinder has been filed by the Purchaser. However relying on the orders passed by the Hon’ble National Commission i.e. II (2004) CPJ 24 (NC), Meera & Co.Ltd. etc.; III (2006) CPJ 256 (NC) Super Computer Ltd., etc. and the order dt. 8.8.2005 passed in Original petition No. 290 of 1997- Jindal Drilling & Industries Ltd. etc., Mr. Sachin Kumar, appearing for Purchaser submitted that if any goods is found defective during the warranty period, then the Purchaser is a Consumer, even if the goods were used for commercial purpose.

14.     But these judgements are of no help to the Purchaser. Firstly, as found above, he could not prove deficiency in service on the part of the Seller. Secondly, the Purchaser could not prove the warranty period. His specific case was that the Seller agreed to mention one year warranty on the Cash memo, but there is no such mention in the Cash memos, which the Purchaser received without any objection. In the cash memo- “Warranty as per warranty norms of the Principal Company/ Manufacturer” was printed. But the Purchaser neither disclosed the names of the Company/ manufacturer, nor proved their warranty norms. It appears from the Complaint that assembled computers were purchased.

15.     Considering the entire facts and circumstances of this case, we allow this appeal, set aside the impugned order and dismiss the complaint.

           Issue free copy of this order to all concerned for information and needful.

              Ranchi,

              Dated:-05-12-2014