Order No. 15 dt. 25/07/2019
The case of the complainant in brief is that the complainant placed an order for one piece of chain approximate weight 16 gm of gold and two pieces bangles approximate weight 50 gm to o.p. no.1 and for the said purpose he also paid a sum of Rs.1,11,363/- as an advance. The o.p. no.1 duly acknowledged the said sum of rs.1,11,363/- and in the said receipt o.p. no.1 agreed to deliver the article on 15.9.16. Subsequently on 23.8.16 the complainant paid further amount of Rs.1 lakh. The o.p. no.1 also duly acknowledged the said amount through their order no.0002617 dt.23.8.16. On the said date the complainant also deposited a gold bangle as sample weighing 14.402 gm oif gold to o.p. no.1 for the period placed on 11.8.16 and acknowledgement was issued by o.p. no.1. The complainant further stated that even after the delivery date o.p. no.1 did not supply the order for which the complainant approached the o.p. no.1 asking for the refund of the amount, but o.ps. did not pay any heed for which the complainant filed this case praying for asking the o.ps. to refund the amount of Rs.2,11,363/- along with interest as well as compensation and litigation cost.
The o.ps. contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that the complainant did not come to this Forum with clean hands and the complainant manufactured the case for the purpose of illegal gain against the o.ps. The o.ps. also provided the articles as per the order placed by the complainant being order nos.2610 and 2617. Only o.ps. kept one 22 kt hall marked chain. The entire fact was informed to the complainant. It was further stated that the complainant came to the shop of o.p. no.2 and wanted to exchange his old money of Rs.500/- and Rs.1000/- and for purchasing gold and handed over the money in cash as advance and further promised that balance amount would be paid just after one month. The complainant provided a sample gold churi for making gold churi as well as size of other gold ornaments as per the size of the wrist of the daughter of the complainant. The o.ps. failed to pay the amount because of financial stringency and as such, o.ps. prayed for arrange the return of the gold ornaments for which o.ps. also prayed that they may be exempted from any compensation and litigation cost.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainant for the purpose of purchasing the gold ornaments paid an amount of Rs.2,11,363/- to o.,p. no.1?
- Whether o.p. no.1 failed to provide the ornaments as per the order as well as the sample taken from the complainant?
- Whether there was any deficiency in service on the part of o.ps.?
- Whether the complainant will be entitled to get the relief as prayed for?
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. lawyer for the complainant argued that the complainant placed an order for one piece of chain approximate weight 16 gm of gold and two pieces bangles approximate weight 50 gm to o.p. no.1 and for the said purpose he also paid a sum of Rs.1,11,363/- as an advance. The o.p. no.1 duly acknowledged the said sum of rs.1,11,363/- and in the said receipt o.p. no.1 agreed to deliver the article on 15.9.16. Subsequently on 23.8.16 the complainant paid further amount of Rs.1 lakh. The o.p. no.1 also duly acknowledged the said amount through their order no.0002617 dt.23.8.16. On the said date the complainant also deposited a gold bangle as sample weighing 14.402 gm oif gold to o.p. no.1 for the period placed on 11.8.16 and acknowledgement was issued by o.p. no.1. The complainant further stated that even after the delivery date o.p. no.1 did not supply the order for which the complainant approached the o.p. no.1 asking for the refund of the amount, but o.ps. did not pay any heed for which the complainant filed this case praying for asking the o.ps. to refund the amount of Rs.2,11,363/- along with interest as well as compensation and litigation cost.
Ld. lawyer for the o.ps. argued that the complainant did not come to this Forum with clean hands and the complainant manufactured the case for the purpose of illegal gain against the o.ps. The o.ps. also provided the articles as per the order placed by the complainant being order nos.2610 and 2617. Only o.ps. kept one 22 kt hall marked chain. The entire fact was informed to the complainant. It was further stated that the complainant came to the shop of o.p. no.2 and wanted to exchange his old money of Rs.500/- and Rs.1000/- and for purchasing gold and handed over the money in cash as advance and further promised that balance amount would be paid just after one month. The complainant provided a sample gold churi for making gold churi as well as size of other gold ornaments as per the size of the wrist of the daughter of the complainant. The o.ps. failed to pay the amount because of financial stringency and as such, o.ps. prayed for arrange the return of the gold ornaments for which o.ps. also prayed that they may be exempted from any compensation and litigation cost.
Considering the submissions of the respective parties it is an admitted fact that the complainant for the purpose of purchasing gold ornaments went to the shop of o.p. no.1 and he placed order for gold ornaments and paid an advance of Rs.1,11,363/- on 11.8.16. The o.p. no.1 also issued a receipt to that effect. The complainant has also subsequently paid further amount of Rs1 lakh and the receipt was also issued wherefrom it appears that the complainant in total paid cash amount of Rs.2,11,363/-. The complainant has also stated that for the purpose of providing sample he handed over one bangle for the measurement of the wrist of the daughter of the complainant. The complainant has also filed another document annex-G wherefrom it appears that o.p. no.2 addressed to the complainant seeking time for the fulfillment of the orders placed by the complainant. After the expiry of the said period the complainant was not provided with those articles for which the complainant also sent lawyer’s letter which was replied by o.ps. and they denied that they received any ornament from the complainant. Since the evidence produced by the complainant corroborated the fact of allegations made against the o.ps. and o.ps. did not deny the said fact, though in the w/v it was denied, but in the letter addressed to the complainant being annex-G o.ps. agreed that the orders were placed by the complainant. The complainant after waiting for some period demanded the amount, but o.ps. did not pay any heed. Subsequently the complainant filed a complaint before CA & FBP, Govt. of West Bengal, whereby o.ps. were also directed to return the money, but o.ps. did not pay any heed, ultimately the complainant had to file this case. The o.ps. have taken this plea that they handed over the ornaments, but no document has been filed to that effect. Mere statement in the w/v cannot be considered to be a substantive material to establish the plea of o.ps. Since the evidence adduced by the complainant convincingly proved that the amount was returned to the complainant as well as the ornaments, therefore, we hold that by giving further time to o.ps. for providing the ornaments to the complainant will only be given advantage to o.ps. Since the complainant has not been provided with the ornaments placed by him in spite of payment of the advance amount as well as one sample gold ornament, therefore, the act of o.ps. clearly established the fact that there is gross deficiency in service as well as unfair trade practice on the part of o.ps. and the complainant will be entitled to get the refund of the money along with other relief.
Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No.244/2018 is allowed on contest with cost against the o.ps. The o.ps. are jointly and/or severally directed to return the said sample bangle weighing 14.420 gm gold to the complainant and the o.ps. are jointly and/or severally directed to refund the amount of Rs.2,11,363/- (Rupees two lakhs eleven thousand three hundred sixty three) only to the complainant along with compensation of Rs.60,000/- (Rupees sixty thousand) only for harassment and mental agony and litigation cost of Rs.10,000/- (Rupees ten thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 8% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
