OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C. 60/2016
Present:-
1)Md.Sahadat Hussain, A.J.S. - President
2)Smti Archana Deka Lahkar - Member
Smti.Tamanna Bhattacharya - Complainant
D/O- Sri Dilip Kr.Bhattacharya
R/O Patarkuchi,P.O. & P.S.-Basistha
Dist.-Kamrup(M) Asam
-vs-
Ganapati Associate, Represented by its - Opp.parties
Proprietor Sri Pranjit Baruah, A.T.Road,
Torajan , Jorhat-785001,Dist.Jorhat,Assams
Appearance : -
Ld. advocate for the complainant - Mr.Dhiren Ch.Chetia Phukan
Date of argument- 02. 02. 2018
Date of judgment- 16. 02.2018
EXPARTE JUDGMENT
This is a proceeding u/s 12 of Consumer Protection Act,1986.
1) The complaint filed by Smti Tamanna Bhatacharya against Ganapati Associates, represented by its proprietor, Sri Pranjit Baruah, A.T.Road, Tarajan, Jorhat- 1 was admitted on 21.7.16 and notice was issued to the opp.party and it was served on the opp.party, but at the time of filing of written statement, the opp.party defaulted to file written statement and also refused to contest the case; and accordingly this forum, vide order 26.7.2017, directed that the case against opp.party will proceed on exparte. Thereafter, the complainant filed exparte affidavit on 6.9.17. Her counsel ld. advocate Mr. Dhiren Ch.Chetia Phukan filed written exparte argument on 27.11.17 and forwarded exparte oral argument on 2.2.18, and today we deliver the exparte judgment , which is as follow-
2) The case of the complainant is that she with a view to set up a business of manufacturing paper plate industry, talked with Sri Prasenjit Baruah, representative of the Ganapati Associates over phone and the latter visited her residence and did a negotiation with her on 30.10.15 to supply on double die paper plate machine including its accessories along with their articles; and incompliance with that oral agreement they did a written agreement also on 30.11.15, which was done in her residence, to supply the following articles with rates including transportation and Taxes etc. –
1) A double die paper plate machine - Rs.1,30,000/-
2) Die,14 - Rs. 9,000/-
3) Die,7” - Rs. 7,000/-
4) Die,12” - Rs. 12,000/-
5) Transportation - Rs. 7,000/-
6) (Sale Tax Vat)include
7) Raw Materials (200 K.G.)
in total Price - Rs. 1,70,000/- and in compliance of the said agreement he had paid Rs.1,00,000/-in cash to the opp.party on 1.12.2015 as advance for supplying aforesaid articles with terms and conditions that
(I) The articles will be supplied in between 45 to 50 days from the date of order (N.B.-delivery is subject to the time required for transportation ).
(II) The enterprise shall take burden of imparting training for supplied articles.
(III) The rest amount of the ordered articles shall be deposited to the enterprise at the time of furnishing bill.
(IV) The burden of selling of the ordered articles shall be taken up by the enterprise on its condition.
(V) In no any circumstances the agreement shall be cancelled.
After receiving of the advance amount on 1.12.15, the opp.party remained silent and then she demanded the opp.party to deliver the items as per order and the agreement; but they did not comply with her request and then her counsel Ld. advocate Mr.Dhiren Ch.Chetia Phukan, on 2.6.16, through ASTC Courier Service sent an advocate’s notice to the opp.party which was received by the opp.party and they also acknowledged the receipt over phone; and the opp.party sought time till June 2016 for compliance the condition of the agreement, but the opp.party failed to send the articles as per order; and in result she suffered irreparable loss, the cause of action first arose on 30.10.2015, i.e. the date of oral agreement held at her house at Patarkuchi, Guwahati and also on the date of order dtd.1.12.15 and on 2.6.2016 the date of sending advocate notice and on 17.5.2016 i.e. expiry of 15 days time of notice and so on. Accordingly , she is entitled to get back the advance amount of Rs.1,00,000/- with compensation from the opp.party.
3) We have perused the evidence of the complainant as well as the documents filed with the evidence. From Ex.1, it is crystal clear that the complainant and Ganapati Associates entered into a written agreement on 30.11.15 as to sell and purchase of double die paper plate machine with some other materials and as per said agreement, the opp.party is to supply (I) double die paper plate machine at a price of Rs.1,30,000/- (II) Die,14” at the price of Rs. 14,000/-(III) Die,7” at the price of Rs. 7,000/- (IV) Die,12” at the price of Rs. 12,000/- with transportation cost of Rs.7,000/- totaling Rs.1,70,000/- to the complainant within 45/50 days from the date of agreement with other terms and conditions with the opp.party and they also to impart training in respect of the said items ; the complainant is to pay remaining bill amount at the time of completion of delivery of items and the terms and conditions of agreement would never be broken . From Ex.2 it is seen that in compliation to the order dtd.30.11.15, the complainant paid Rs.1,00,000/- to the opp.party in cash and opp.party accepted the advance issuing Ex.2 receipt. From Ex.3, it is seen that the complainant sent advocate notice on 30.5.2016.
4) We have perused the evidence of the complainant and we have found that there is no ground to dis-believe her evidence and her evidence is also supported by Ex.1, 2 & 3 documents. Thus , it is clearly established that the complainant had , on 30.10.2015, negotiated with the opp.party to supply double die paper plate machine including accessories and after that negotiation the complainant entered into a written agreement with the opp.party on 30.11.2015; and accordingly to the agreement, the opp.party was to supply (I) a double die paper plate making machine @ Rs.1,30,000/- die,14” at the price of Rs. 14,000/-, die,7” at the price of Rs. 7,000/- , die,12” at the price of Rs. 12,000/- with transportation cost of Rs.7,000/- totaling Rs.1,70,000/- to the complainant within 45/50 days from the date of agreement with other terms and conditions that is the opp.party is to impart training to the complainant about the use of the machine and the complainant is to pay remaining bill amount after completion of delivery of ordered items, and that none of the terms and conditions of agreement can be broken by the parties . It is also established that as per that agreement the complainant had paid Rs.1,00,000/- as advance to the opp.party on 1.12.15. It is also found from the evidence, that the opp.party has not supplied the ordered items even after receiving the said Rs.1,00,000/- as advance and inspite of receiving repeated requests from the complainant as well as advocate notice dtd. 30.5.16. Thus, it is a clear case of deficiency of service on the part of the opp.party.
5) The agreement was held at the residence of the complainant at Guwahati for supply of those items and items are to be delivered Guwahati . It is also found that delivery is to be done by the opp.party themselves which to be made at residence of the complainant . Hence the cause of action arose at Guwahati within the jurisdiction of this forum. The cause of action first arose on 30.10.2015 ( the date of oral negotiation) on 30.11.15 (date of written agreement) and on 30.5.16 (the date of advocate notice) . It is also found that the complaint was filed before this forum within the period of limitation.
6) Summing up above discussion, we hold that the complainant has a prima facie case against the opp.party, namely Ganapati Associates at Tarajan, Jorhat-1 of which Sri Pranjit Baruah is the sole proprietor and she has also succeeded to prove her case. Accordingly, the complaint is allowed on exparte and the opp.party - Ganapati Associates , represented by its proprietor, Sri Pranjit Baruah is allowed on exparte and opp.party is directed to refund to her the advance amount of Rs.1,00,000/-(Rupees one lakh)only which the complainant had paid to them with interest @ 12% per annum from the date of written agreement (30.11.2015) and also to pay her Rs.50,000/- as compensation for causing business loss to her and also Rs.20,000/- for causing harassment, and mental agony to her as well as Rs. 10,000/- as cost of proceeding. The opp.party is directed to pay the awarded amount within 45 days , in default, of which, other amounts shall also carry interest at the rate of 12% per annum.
Given under our hands and seals on this the 16th day of Feb,2018.
(Smti.Archana Deka Lahkar) (Md.Sahadat Hussain)
Member President
