This is a complaint file by the Complainant u/s 12 of C.P. Act 1986 (as amended upto date).
The case in brief is that the Complainant has a Grill Welding Workshop since 2011 for earning his livelihood and he decided to install one Lathe Machine for better income. Accordingly the Complainant met with Mr. Ajay Sarkhel, I.D.O., Sonamukhi Block (The O.P. No.2) and as per the advice of O.P. No.2 the Complainant collected the quotation from Goutam Dasgupta, Prop. of Gouri Engineering Co., Kolkata (The O.P. No.1) and placed his order before O.P. No.1. On 09-01-2014 the Complainant paid Rs. 10,000/- in cash as advance and O.P. No.1 issued one money receipt in presence of O.P. No.2. The Complainant took loan from Bangyia Gramin Vikash Bank, Sonamukhi Branch, Bankura (The O.P. no.3) for purchasing the aforesaid machine and paid Rs.7741/- per month as E.M.I. On 07-04-2014 the Complainant handed over one Demand Draft of S.B.I., Sonamukhi Branch of Rs. 1,95,000/- to the O.P. No.1 as the payment of rest amount for purchasing the Lathe Machine and other spares. The Complainant paid total amount of Rs.2,05,000/-. But on 13-07-2014 one old repairing lathe machine has been sent through R.K. Jaiswal, dealer of Old and New Machineries suppliers, Kolkata-7 though the Complainant ordered for supply the new Lathe Machine to the O.P. No.1.
The Complainant did not accept the aforesaid machine and informed the fact to O.P. No.1 & 2 over telephone. Thereafter, the O.P. No.1 and 2 came at the Complainant’s firm and after verifying the machine both of them agreed that the aforesaid machine was not new one and the O.P. No.1 took back the same and issued two cheques of Rs.1,00,000/- dt.21-07-2014 and Rs.74,000/- dt. 28-07-2014 in the name of the Complainant to refund the money paid by the Complainant and assured to pay the rest amount shortly. The Complainant deposited the cheque of Rs. 1,00,000/- at S.B.I., Sonamukhi Branch to collect the aforesaid money in his Savings Account but the cheque has been returned due to non-submission of K.Y.C. by O.P. No.1 against his account. The Complainant also deposited another cheque of Rs. 74,000/- but the S.B.I., Sonamukhi Branch did not accept the same as in words the amount has been written as seventy four only. The Complainant informed the matter to both O.P. No.1 and O.P. No.2. and O.P. No.1 agreed to pay the full amount in his bank account and accordingly received the Account number and CIF number and deposited Rs.80,000/- in the said account of the Complainant but the rest amount did not paid till now. Several times the Complainant met and requested the O.P. No.1 and O.P. No.2 for the payment of rest amount of Rs.1,25,000/- and both O.P. No1 & 2 assured to pay as early as possible but till today the Complainant not received the rest amount. Finding no other alternative the Complainant filed this case praying for a direction upon O.P. No.1 to pay Rs.1,25,000/- along with interest and Rs.3,50,000/- as compensation and litigation cost of Rs.20,000/-.
The O.P. no.1 contested the case by filing W.V. contending inter alia that the instant case is not maintainable as the Complainant has filed another case at Judicial Magistrate, 3rd Court, Bishnupur with the self-same allegations. The O.P. no.1 categorically denied all the allegations raised by the Complainant in his petition of complaint. The O.P. no.1 stated that as per the request of the Complainant the O.P. no.1 issued a quotation of Rs.2,75,226/- out of which the Complainant paid Rs.10,000/- as advance and Rs.1,95,000/- through demand draft for purchasing the Lathe Machine and the Complainant said that the rest amount of Rs.70,226/- will be paid after receiving the Lathe Machine. The O.P. again stated that he sent the Lathe Machine through Truck but the Complainant did not received the said machine rather he detained the machine with the said truck for two-days and when the O.P. no.1 reached at the Complainants workshop to check the said machine the Complainant humiliate the O.P. no.1 and forced him for issuance of cheque and snatched the cheque book from the O.P. no.1 and on fear he put his signature on two cheques of Rs.1,00,000/- and of Rs.74,000/-. The O.P. no.1 narrated that he sent the new machine but the Complainant alleged the said machine was an old one and the O.P. no.1 told for replacing the said machine but the Complainant did not agreed. The O.P. no.1 further stated that for the detention of the said Truck the O.P. faced a loss of Rs.20,000/- and after getting signature on the cheques the Complainant released the O.P. No.1 and the O.P. no.1 also informed the matter before the O/C of Sonamukhi Police Station on 18-07-2014. The O.P. again stated that he had no desire to issue those two cheques as his account was not activated for non-deposit of KYC but it was done by him for safe his life. The O.P. also stated that he deposited Rs.80,000/- in the account of the Complainant and till today he is ready to deliver the another Lathe Machine. The O.P. no.1 stated that there was no deficiency in service on his part and prayed to dismiss the instant case.
The O.P. no.2 appeared after receiving the notice but thereafter did not contest with the case and the case has been heard exparte against him.
The notice upon O.P. no.3 has been served properly and O.P. no.3 received the same putting signature on the A.D. Card but did not contest with the case. So, the case has been heard exparte against O.P. no.3 also.
The Complainant filed written argument and some documents and made oral argument also. The O.P. no.1 did not file any written argument.
We have heard Ld. Lawyer for the Complainant and verified the documents on the record carefully.
Following points are necessary to discuss for the determination of the case.
Points for determination.
1) Whether the Complainant is a Consumer ?
2) Whether this case is maintainable before this Forum as the Complainant has filed another case before the Judicial Magistrate, 3rd Court, Bishnupur on the self-same matter.
3) Whether there is any deficiency in service and an unfair trade practice on the part of the O.Ps.
4) Whether the Complainant is entitled to get reliefs as prayed for.
Decision with reason.
Point – 1: Admittedly the Complainant has paid total Rs.2,05,000/- to the O.P. no.1 for purchasing a Lathe Machine. So, the Complainant is a Consumer u/s 2(1)(d) (i) of C.P.
Act, 1986.
Point – 2: The O.P. no.1 stated in his written version that the present case is not maintainable at this Forum as the Complainant has filed another case on self-same matter at Judicial Magistrate, 3rd Court being no.07 C/2015, u/s – 420 / 406 / 120 B IPC and the matter is sub-juiced before Ld. Judicial Majistrate, 3rd Court, Bishnupur, under the district of Bankura. The O.P. no.1 has submitted one Xerox copy of the Criminal case being no.07C/2015.
We have verified the documents carefully. It is clear from the documents that a criminal case has been filed by the Complainant before Ld. Judicial Magistrate, 3rd Court, Bishnupur under Dist Bankura and the case is still pending there. The documents also show that the criminal case has been filed on 22-01-2015 and this consumer complaint has been filed on 08-12-2014 i.e. before filing the criminal case. Moreover, the relief sought from the Consumer complaint and from the criminal case is different in nature.
In this regard the Complainant has filed some rulings as : -
1). Consumer Protection Act – Sec 13 – maintainability of Complaint – criminal proceeding launched by Complainant on the same cause of action is no bar to maintainability of Complaint under Consumer Protection Act – A.I.R. 2009 (NOC) 109 Allahabad.
2) Proceedings under Consumer Protection Act and in a Civil Court can simultaneously go on even if issues involved therein are substantially similar. – 2010(2) CPR 85, Delhi High Court.
Reliance has been placed upon those citations of the Hon’ble High Court.
So, it is clear from the above discussion that the instant case is maintainable under C. P. Act 1986 and hence maintainable under this Forum.
Point 3 & 4. Both the points are taken up together for discussion as they are inter-related to each other.
It is admitted that the Complainant paid total Rs.2,05,000/- to the O.P. no.1 for
purchasing one Lathe Machine.
At the time of argument the Complainant stated that instead of new machine, the O.P. no.1 sent one old Lathe Machine in repairing condition along with other accessories through one Track vide no.WB 03 – B 1595 with Challan no.26 / 14 – 15 dated. 13-07-2014. In support of his statement the Complainant filed Xerox copy of the Challan.
We have verified the documents. It was mentioned in the “Particulars” column of the Challan .
1. Lathe Machine for repairing.
On the other hand the O.P. no.1 stated in his written version that the Lathe Machine was new one. But he did not produce any bit of paper in support of this contention. Moreover, he offered the Complainant for replacement of the said machine which goes to prove that the allegation of the Complainant is true.
Beside the O.P. no.1 admitted that to refund the amount of money of the Complainant he issued two cheques in favour of the Complainant from his inactive account for non-deposit of KYC which is nothing but the unfair trade practice by the O.P. no.1. The O.P. no.1 stated that he did not do so intentionally rather it was done by him to save his life as the Complainant humiliate the O.P. no.1 and detained him for two days and created force upon the O.P. no.1 for issuance of cheque and snatched the cheque book from his bag.
The O.P. no.1 also stated that the matter has been informed before the O.C. of Sonamukhi P.S., Bankura on 18-07-2014. But the O.P. no.1 did not submit any cogent documents to prove his statement. Therefore, we cannot accept such pleading of the O.P. no.1. Out of Rs.2,05,000/- of the Complainant, admittedly the O.P. no.1 refunded Rs.80,000/- to the Complainant. Therefore, the Complainant is entitled to get rest amount Rs.1,25,000/- from the O.P. no.1.
The Complainant did not seek any remedy from O.P. no.2 and O.P. no.3. Therefore, the O.P. no.2 & 3 have set free from this case.
Hence, from the above discussion it is clear that there is deficiency in service and unfair trade practice on the part of the O.P. no.1.
Points 3 & 4 are thus disposed of in favour of the Complainant. Hence, the case stands.
Proper fees have been paid.
Hence, it is
Ordered
That the C.C. No.162 / 2014 be and the same is allowed on contest against O.P. no.1 and dismissed exparte against O.P. no.2 and O.P. no.3.
The O.P. no.1 is hereby directed to refund Rs.1,25,000/- to the Complainant along with interest @ 10% per anum from the date of filing of this case i.e. from 08-12-2014 till the realization of the amount.
The O.P. No.1 is further directed to pay Rs.5,000/- as litigation cost to the Complainant.
All such payment shall be made within one month from the date of this Order failing which the Complainant shall be at liberty to execute this order as per law and procedure.
Copy of this order be supplied to the parties each free of cost.
