Nagaland

StateCommission

CC/1/2019

Kenyusinlo Seb - Complainant(s)

Versus

Getech Equipments International Pvt. Ltd & ors - Opp.Party(s)

Imlirenla

18 Jun 2022

ORDER

NAGALAND STATE CONSUMER DISPUTES REDRESSAL COMMISSION

KOHIMA: NAGALAND

 

CC 1/2019

Shri Kenyusinlo Seb

S/O. Hilo Seb

R/O H/NO.208 Hill View Colony

DC Court Road, Opposite Nagaland University

Dimapur: Nagaland

……. Complainant

 

Vs

 

1. GETECH Equipments International Pvt. Ltd.

Plot No. 200/12 phase 2

Cherlapali Industrial Area

HCL Post- Hyderabad-500051

Telanga State.

2. Smti Geetha V. Nair MD/CEO

GETECH Equipments International Pvt.Ltd

Plot No. 200/12 Phase 2

Cherlapali Industrial Area

HCL Post, Hyderabad- 500051

Telanga State. 

3.  Shri. Vivek Murthy, COO

GETECH Equipments International Pvt. Ltd 

Plot No.200/12 Phase 3

HCL Post Hyderabad -500051

Telanga State:India

 

 

•  

For the Complaint: Philip Lorin (Adv)

For the O.P: None appear

Date of Hearing:14.05.2022

Date of Order: 18.06.2022

 

 

The present complaint was filed before the Commission on 16. 7.2019. Notice was issued to the opposite parties by registered post made returnable after 8 (eight) weeks’ time on 10-06-2019. Matter was listed again on 13-4-2019. However, the Respondent did not file their written statement. It was listed again for the 7^th May 2022. On that next date ld. Counsel Mr. Philip Lorin submits that he had personally intimated the Counsel for the opposite party about the hearing. However, the opposite party did not take any steps nor attend the court. Ld. Counsel, submitted that the opposite parties have least concern about the complainant filed against them. The complainant is a businessman running huge loses the opposite party and his money has been kept parked with the opposite party for a considerable period of timed. Despite these facts, the opposite parties having communicated through their Lawyer and also in their personal capacity have not appeared nor filed their written statement. It was therefore urged upon the Forum to dispose of the matter ex-parte.

The Forum examined the plea of the ld. Counsel for the complainant Mr. Philip Lorin (Adv) and have come to conclusion that the petitioner as well as the Forum has taken all necessary steps to secure the attendance of the opposite party. The compliant having being filed on 16.7.2019 have now far passed the statutory obligation of disposal of the complaint within three months of the notice upon the opposite parties. We have taken all due cognizance of the pandemic situation that has affected the efficient functioning of the Forum. The situation having improved now it will not be incumbent upon the Forum to consider this aspect since national lock down has now been withdrawn the Government. There is opportunity to e-filing even under the lock down situation. Therefore, it is undisputable that the opposite parties have wilfully abstain from replying to the notices issued by the Forum and we proceed to have the matter ex-parte.

Facts leading to the filing the present compliant is discussed. The compliant is the proprietor of M/S Naga Hills Drilling Services with its office at H.No 208 Nagaland University Dimapur , Nagaland.

The opposite party No.1 is a registered Company dealing manufacture and supply of high-quality construction, mining and pumping machines across the country under the name and style of GETECH Equipments International Pvt. Ltd. which is an ISO certified firm located at plot No.200/12 phase 2 Cherlapally Industrial Area, HLC post Hyderabad-500051, Telangana state India. Opposite party No.2 is the Managing Director/ CEO of the GETECH Equipments International Pvt. Ltd. and opposite party No.3 is the Chief Operating Officer (COO) of the GETECH Equipments International Pvt. Ltd.

The complainant desirous of procuring DTH Rig Machine obtained copy of the commercial terms and condition of the transaction. This has been Exhibited as Annexure-A. The complainant also personally visited the office of the opposite party at Hyderabad. Having understood the company terms and policies, the complainant place an order of the DTH Rig Machine on 09.02.2016 vide order No.028/2015-16 where the cost of the DTH Rig Machine was Rs.55,00,000.00/- (Rupees fifty five lakhs) only which was to be paid on three installments as per the payments plan. Therefore, the complainant made an advance payment of Rs .20,00,000.00/- (Rupees twenty lakhs) only on 19.02.2016 out of the total cost of the machine and the remaining balance to be made as per the payment plan on 05.03.2016 and 31.03.2016.

 

(True photocopy of receipt of the first payment of Installment is enclosed and attached as Annexure- B)

The complainant made another payment of Rs. 10,00,000/- (Rupees ten lakhs) only on 09.03.2016 as per the payment plan for the cost of DTH Rig Machine and the receipt of the payment was mailed to the complainant by the opposite parties on 11.03.2016 vide order No. 028/2015-2016 which confirms that they have received the said amount into the account.

(True photocopy of the receipt of the second installment is enclose and attached as Annexure-c)

As per the commercial terms of delivery and payment, 35% of the advance amount is to be paid before the purchase of the DTH Rig Machine and the remaining 65% is to be paid after the inspection of the equipments at the factory before dispatch. Moreover, the delivery of the machine was also supposed to be made within 4-6 weeks from the date of receipt of order with advance. As such, the complainant has already paid the advance 50% of the amount and he was expecting a call from the complainant for inspection of the DTH Rig Machine at the factory. However, the complainant was informed by the opposite parties again to make a deposit of Rs 15,00,000/- (Rupees fifteen lakhs) only which was totally against the terms and condition of the terms of delivery and payment. However, since the complainant was in need of the said equipment, the complainant deposited another Rs 15,00,000/- (Rupees fifteen lakhs) only through ICICI Bank to the opposite party on dated 02-04-2016, even though the advance amount of 50% was already paid. After the amount was deposited into the party account, the opposite party mailed the receipt of payment to the complainant vide order No.028/2015-16 dated 11.04.2016. The said receipt contains details of the payment made by complainant and also the balance amount which is to be paid after the inspection of the DTH Rig Machine at the factory.

 (True photocopy of the deposit receipt/ Third installment is enclosed and attached as Annexure-D)

After the payment of the amount as mentioned in the commercial terms of delivery and payment, the complainant was expecting of the DTH Rig Machine. However, the complainant received an email from the Assistant Manager Marketing (export) Shri. Suryakiran K stating that the technician has visited their factory on 14.06.2016 and that the DTH Rig Machine will be ready for dispatch by next week. The complainant while responding to the email on 15.06.2016 stated that delay in delivering the DTH Rig Machine has caused him huge as he has lost many contracts with the Govt. departments.

It is also pertinent to mention that before the mail was sent to the complainant by Assistant Manager Marketing (export) Shri. Suryakiran K. moreover a telephonic conversation was also made between the complainant and opposite party No.3 (Shri. Vivek Murthy) whereby he assured the complainant that DTH Rig Machine will be reach Nagaland on or before 25.06.2016. Thus, by reflecting the earlier conversation made between them, the complainant reminded that if the opposite party failed to deliver the DTH Rig Machine on the date mentioned i.e., 25.06.2016, then the advance amount of Rs. 45,00,000/- (Rupees forty lakhs) only which was already deposited may be released from their end.

(True photocopy of the mail is enclosed and attached as Annexure-E and E (1)

In spite of the assurance to deliver the DTH Rig Machine on or before 25.06.2016 the opposite party failed to deliver the machine. Surprisingly on 28.06.2016, the complainant received an email from the opposite party No. 3 stating that the compressor which the company brought the factory was not certified by ELGI and giving the complainant a faulty compressor will hinder his work and the efficiency of drilling and hence they are striving hard to find a compressor which is certified by ELGI.

The complainant who was waiting patiently for the last four (months) for the DTH Rig Machine to be delivered to him was shocked to learn about the faulty compressor as he was assured by the assistant Manager Marketing (Export) Shri Suryakiran K, the opposite party No.3 on 14.06.2016 that the DTH Rig Machine will be delivered/ dispatched to him by next week. This was the second instance where the opposite party has assured the complainant for the delivery of the DTH Rig Machine but failed to do so.

(True photocopy of the mail is enclosed and attached as Annexure-F)

Time and again the opposite parties have failed to deliver the DTH Rig Machine and at same time they were constantly extending the date of delivery. Therefore, the complainant had written a letter dated 21-07-2016, whereby the complainant had had clearly stated that if the opposite parties fail to deliver the said machine on or before25-07-2016, the complainant would be compelled to terminate the purchased contract/agreement and his purchase order should be treated as cancelled after the expiration of the said period, i.e. 25-07-2016 and then opposite parties shall refund the already deposited amount for the said machine, i.e., amount for the machine Rs. 45,00,000/-along with accrued interest .However, the opposite party NO.3 Informed the complainant vide email that the said machine will be ready for delivery at Hyderabad latest by 05-08-2016 and as usual the opposite party again extended the time for delivery for the DTH Rig Machine till 05.08.2016 by giving lame excuses.

However, unfortunately the opposite parties again failed to deliver the machine as per mentioned delivery date i.e., 05-08-2016 and as such, the complainant again on 17-08-2016 emailed the opposite party No.2, whereby he had expressed the dissatisfaction regarding the delivery and again reiterated to refund the amount which he had deposited for the delivery of the machine.

(True photocopies of the letter addressed to the Managing Director is enclosed and attached as Annexure-G and G (1)

After failing to deliver the DTH Rig Machine for the third time in a row and extending the date of delivery for the fourth time the opposite parties stops attending the call of the complainant. As such as, the complainant on 17-08-2016 sent an email to the opposite party to refund the amount of Rs. 45,00,000/- (Rupees forty-five lakhs) only as they have not delivered the Machine despite the assurance given by them. The complainant also sent a letter on dated 19.08.2016 to refund the amount of Rs.45,00,000/- (Rupees forty-five lakhs) only on or before 25-08-2016 but the opposite party did not take regard to refund the amount.

(True photocopies of the letter isa enclosed and attached as Annexure- H and H (1))

Having failed to refund the amount as well as to deliver the DTH Rig Machine for successive times, the complainant was making necessary arrangement to file for litigation in the court of law. However, on 23.09.2016, the opposite parties call the complainant through telephone and informed him that the new compressor has arrived and at the same time the opposite parties mailed the details of the new compressor. As such as before delivering the DTH Rig Machine, the opposite parties told the complainant to pay Rs. 20,00,000/- (twenty lakhs) only for the cost of the new compressor so that he does not suffer because of the faulty compressor after the DTH Rig Machine is delivered to him. The opposite party also mailed the details of the Bank Account through which money is to be transferred for the cost of the new compressor.

(True photocopies of the email is enclosed and attached as Annexure- I and I (1))

The complainant thought after the replacement of the new compressor, the DTH Rig Machine will be delivered to him assured by the opposite parties. Moreover, after having invested money to the tune of Rs.45,00,000/- (Rupees forty-five lakhs) only for the cost of the DTH Rig Machine he was not ready to bear and faulty compressor would hinder his work, the Complainant decided to go for replacement of the new compressor.

As such, on 07.11.2016 the complainant made a payment at yes Bank Dimapur Branch through RTGS for the cost of the new compressor. The opposite parties on 09.11.2018 sent a copy of the money receipt through mail indicating the date of payment and the amount by the complainant till date.

(True photocopies of money receipt from the Bank and receipt from the opposite parties is enclosed and attached as Annexure-J and J (1))

Since the opposite party keeps on extending the date of delivery, the complainant visited the office of the opposite party on 23.11.2016 whereby a meeting was held between them and the opposite party assured the complainant that the DTH Rig Machine will be delivered on 05-12-2016. The opposite party assurance to deliver the DTH Rig Machine was never fulfilled as such the complainant told the opposite party to give a written assurance this time. Therefore, on dated 26-11-2016 the complainant received an email stating that the machine will be delivered on the 05-12-2016, and the opposite parties also stated the outstanding balance it is be paid on the day of delivery followed by certain business terms and conditions which were binding to both the parties.

(True photocopies of the mail is enclosed and attached as Annexure-K and K (1))

On 30-11-2016 the complainant learnt from one of the opposite party that the ELGI compressor has not reached the factory. Therefore, the complainant mailed a letter to opposite NO2 reminding them of their commitment in regard to the delivery date and also to further the copies of purchase order of DTH Rig Machine and other necessary important documents.

Thereafter, on dated 03-12-2016 the opposite party mailed the purchase order vide order no. P.O. GETECH/PO/16-17/143/EEPL whereby they have stated that they have purchased one number of ELGI compressor (1100/300 (Z03030))

(True photocopies of the mail is enclosed and attached as Annexure-L and L (1))

The complainant send mail to the opposite parties reminding to furnish other relevant documents and also the reasons about he delay in delivering DTH Rig Machine but the opposite parties neither respond to his mail or attended the complainant call. He also reminded the opposite party of their commitment during their telephonic conversation to deliver the DTH Rig Machine on 05-01-2017 and 15-01-2017.

(True photocopies of the mail is enclosed and attached as annexure M, M(1), M(2), M(3), M(4), M(5)).

On dated 19-01-2017, the opposite party No.3 replied to the complainant email stating that the delivery of the DTH Rig Machine was delayed due to certain policy changes in the country and that business had come to a standstill. The opposite parties than requested for another grace period, i.e., till 10^th February 2017 for the delivery again and assured that this date will not be further extended at any cost.

However, the opposite parties again failed to deliver the DTH Rig Machine despite the assurance given to the complainant as such on dated 22-01-2017 and 24-01-2017 the complainant sent an email to the opposite party with regard to the failure of the delivery of DTH Rig Machine. The opposite party also stated that he is facing problem with his partnership from his end.

(True photocopies of the mail is enclosed and attached as Annexure N, N(1) and N(2))

On 09-02-2017 the opposite party received a letter from the opposite party stating that the delay in delivery of DTH Rig Machine was due to none availability of good refurbished compressor as per the earlier purchase order (PO). The opposite party further substantiate in the letter that the purchase of new compressor is cancelled citing various reasons and that the new compressor shall be delivered to their factory by 17-02-2017 and that the DTH Rig Machine shall be delivered to him by 22-02-2017 and settled that if there is any further delay, then the purchase order (po) shall be refunded to the complainant with bank interests.

(True photocopies of the mail is enclosed and attached as Annexure- O)

Having failed to deliver the DTH Rig Machine more than eight times by the opposite parties, the complainant sent his representatives to the head office on 28-02-2017.During the Complainant’s representatives visit at the head office, Hyderabad the opposite party assured them that they will forward all the details of the machine to the complainant. Therefore, the complainant sent an email to the opposite party reflecting the previous meeting on dated 08-02-2017 with regard to furnishing of the copies of purchase order with ELGI company, compressor as well as the conformation letter from ELGI company with all the details, model NO and date of dispatch and way bill etc.

Furthermore, he also stated in his letter that he is reaching Hyderabad on 21-02-2017 to take the delivery of the DTH Rig Machine as per period and dateline extended based on their request.

(True photocopies of the mail is enclosed and attached as Annexure- P)

On dated 01-05-2017 the opposite party sent a purchase vide P.O NO# GETECH/PO/17-18/005/ELGI through another letter the opposite parties assured to deliver the DTH Rig Machine within one week i.e., by 16-05-2017.

(True photocopies of the mail is enclosed and attached as Annexure- Q and Q (1))

On dated 10-05-2017 the opposite party issued a cheque vide No. 024725 of ICICI Bank Limited, Kapra, Hyderabad amounting to Rs.60,05,000/- as a security instrument which is to withdraw on 05-06-2017 in case of failure of delivery of the DTH Rig Machine and assured the complainant that the Rig shall bedelivered on or before 30-05-2017 however, in the event of failure to deliver the DTH Rig Machine , Mr. Zochunilo Semy shall have the right to withdraw the post-dated cheque issued to him from the company account.

Furthermore, the complainant on dated 16-05-2017 and 06-06-2017 mailed a letter to the opposite party stating/ reminding the final date of delivery i.e., 30-05-2017. He also stated that the instrument of security payable in favor of Zochunilo Semy will be deposited to the bank in the event of failure to deliver the DTH Rig Machine and reminded to the opposite parties in event of failure of delivery the DTH Rig Machine, the complainant to withdraw the said deposited security instrument bearing cheque No. 024725 on 07-06-2017.

(True photocopies of the mail is enclosed and attached as Annexure R, R(1), R(2), R(3))

On failing to deliver DTH Rig Machine by the opposite party, the Complainant on dated 15-06-2017 presented the security instrument bearing cheque No. 024725 of Rs. 60,05,000/- (Rupees sixty lakhs five thousand) only, with its bankers namely central bank of India, Dimapur and the said cheque was dishonored vide chequereturn memo dated 15-06-2017 issued by the Complainant’s bank. The aforesaid cheque was returned unpaid with the remarks “FUNDS INSUFFICIENT”.

(True photocopies of the cheque and return is attached and enclosed as Annexure-S and S (1))

On 30-01-2018, the complainant sent an email in regard to the confirmation of the delivery date as assured from the opposite parties and stating that failure from the opposite party in regard to the delivery date, the complainant has no other option but to redress his grievances in the court of law. Thereafter, in reply to the email on dated 31-01-2018 the opposite parties again assured the complainant that they will deliver the DTH Rig Machine within 15 days from the date of email, i.e., 14-02-2018 since the compressor procurement is delayed.

The opposite party replied to the complainant email on dated 31-01-2018 that they will deliver the DTH Rig Machine on the 15-02-2018 at any cost and also requested the complainant to kindly bear with them for another 15 days. As such, the complainant gave one last chance and reminded that he will reach Hyderabad on 14-02-2018 to take the delivery on the next date as promised by the opposite parties.

Having promised to deliver the DTH Rig Machine by 15-02-2018, the opposite party again made another excuse stating that there has been some delay on making payment to ELGI and as such, renewal plus transaction in their account has been affected. Henceforth, the delivery was again extended to 22-02-2018.

(True photocopies of the email is enclosed and attached as Annexure T,T (1) and T (2))

On 08-03-2018 the complainant had served a legal notice dated 08-03-2018 upon the accused by way of Registered post vide receipt No. RE457469300IN and RE4574685251IN dated 08-03-2018 and the same was received by the complainant on 20-03-2018.

(True photocopies of the Legal Notice Receipt of Registered post and Delivery Receipt of the letter is attached and enclosed as Annexure U, U(1),U(2) and U (3))

 On 29-05-2018, the opposite party replied to the legal notice which was served to them through their counsel informing the complainant to again deposit an amount of Rs. 15,00,000/- (Rupees fifteen lakhs) only for the cost of new compressor which my client has already paid to them and furthermore states that the DTH Rig will be ready at their factory within (20) days from the date of the receipt of the amount. He also further states that Mr. Vivek Murthy, Respondent No.3 is no longer a part of our clients organization.

Inspite of numerous assurances from the opposite party for the delivery of DTH Rig Machine, the opposite counsel stated that in their legal notice quote “in event contrary to this happens, all such steps will be vehemently opposed by our client at your client’s own risk and cost, consequences and peril”.

(True photocopy of Reply of Legal Notice is hereby enclosed and attached as Annexure-v)

On 08-10-2018, the complainant through his counsel replied to the notice of the opposite counsel stating that the full amount of DTH Rig Machine and its accessories has been paid in full amount and requested the opposite counsel to deliver the DTH Rig Machine with accessories on or before 08-11-2018.

The complainant counsel further stated that the complainant has already paid an amount of Rs.10,00,000/-(Rupees Ten Lakhs) only out of the due amount of Rs.15,00,000/- (fifteen lakhs) only, as such the requested amount will be paid in compliance to their commercial terms after inspection of the equipment at their opposite party factory before dispatch.

(True photocopy of reply of Legal Notice and receipt of Registered post is hereby enclosed and attached as Annexure-W and W(1))

The opposite parties have slept over the repeated requests and the legal notice of the complainant, thus a glaring case of imperfection in service has been committed and hence it has resulted in deficiency in service in the manner of performance on the part of the opposite parties and as such, the deficiency in service entails damage and /or compensation.

That the complainant is a Consumer within the meaning of the Consumer Protection Act 1986.

The complainant therefore, prays for the following reliefs for the deficiency is service rendered by the opposite parties as under:

1.To pay the sum of Rs 55,00,000/- (Rupees fifty-five lakhs) only which is paid towards the cost of the DTH Rig Machine;

2. professional fee of advocate Legal Notice i.e., a sum of Rs. 20,000/- (Rupees Twenty Thousand)

3. physical harassment and mental agony i.e., sum of Rs.50,000/- (Rupees Fifty Thousand)

4. cost of litigation i.e., sum of Rs.30,000/- (Rupees thirty thousand)

Total amount of compensation = Rs.56,00,000/- (Rupees fifty-six lakhs)

The Complainant, therefore, prays before this Honourable Commission to direct the opposite parties to pay the compensation i.e., an amount of Rs.56,00,000/- (Rupees of fifty-six lakhs) only to the complainant for the deficiency service along with 18% interest per annum w.e.f. 19.02.2016 till the disposal of the compliant case.

The Forum has heard the ld. Counsel patiently and also examined all the exhibits in the course of narration of the facts by the ld. Counsel for the complainant. All the exhibits mentioned by the ld. Counsel for the complainant are in consonance with the narration and claim presented. There seems no room to doubt the veracity of the evidences produced before the Forum.The matter has also been kept pending for the past three years which is not in keeping with the consumer laws.

The Forum is also of the view that the claim amount is very reasonable in comparison to what the complainant has been through all these years. He has made all efforts to see that the matter is resolved outside the Forum by taking several steps. It is seen that the opposite party has even issued a bounced cheque No.024725 of Rs. 60,05,000/- (Rupees sixty lakhs five thousand) only with its bankers namely Central Bank of India. Dimapur which was dishonoured by cheque return memo dated 15-06-17 and is exhibited. This is a criminal offence punishable under S.138 of the Negotiable Instruments Act. Such kind of dealing with a client is harassment and a play to delay the matter.

The communication exhibited between the opposite parties and the complainant clear enough for the forum to come to the determined to avoid the discharge of their part of agreement by creating now conditions which has not been recorded in the commercial terms and conditions exhibited as Annexure A

The Forum is of the undivided opinion that the complainant should be compensated as prayed for.

We direct that the opposite party No.1. 2 and 4 shall jointly and severally be liable to compensate the compliant as shown here under:

1. A sum of Rs. 55,00,000/- (Rupees fifty-five lakhs) for the cost of DTH Rig Machine shall be refunded to the complainant. With interest of 9% from the date of filing.

2. professional fees and cost of litigation Rs.50,000/- (Rupees fifty thousand) only shall be paid to the complainant.

3. A sum of Rs. 50,000/- is always awarded to the complainant for harassment and mental agony.

The opposite parties are directed to deposit a sum of Rs. 56,00,000/- (Rupees fifty-six lakhs) only before this forum for onward disbursement to the complainant. The awarded amount shall be deposited within 30 days of the passing of this order. In the event the awarded amount is not deposited as directed 9% interest per annum shall be changed till realization of the full awarded sum.

With the above direction CC 1/2019 is dispose off.

Furnish of the order to the necessary parties.