Order-16.
Date-31/08/2015.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that complainant placed an order to the OP1 on 19-10-2014 for supplying goods (furniture) as per list that is 5 items and total price of the goods to be supplied by the OP has been fixed at Rs.1,25,000/- only and the OP issued a sale order being numbed SRS/03/14-15/J00028 dated 19-10-2014 and at the time of placing the order complainant paid a sum of Rs.50,000/- in cash out of total price and same has been admitted in the remarks column of the sale order. Thereafter, complainant again paid a sum of Rs.20,000/- to the OP against supply of one virgo Sofa (3+3+1+1) which was not at all ordered by the complainant and the said Sofa was nothing but an old Sofa which was at display in the show room of the OP. As per sale order, OP is bound to supply the furniture within 21-10-2014 but OP failed and neglected to supply the furniture till today in spite of receiving payment of Rs.70,000/- from the complainant.
By a letter dated 21-11-2014 Advocate of the complainant demanded refund of Rs.70,000/- with interest at the rate of6 percent p.a. from the OP within 15 days from the date of letter but OP did not pay any heed to the demand of the complainant. So, the complainant submitted that the act of delivery of old sofa by the OP amounts to shortcoming in the purity or standard required to be maintained by the OP and fault on the part of the OP of non-delivery of the goods within the stipulated period is deficiency of service and in the above circumstance, complainant has prayed for redressal before this Forum directing the OP for refunding the sum of Rs.70,000/- along with interest and as the cause of action arose on 19-10-2014 and it is still continued.
On the other hand, OP by filing written statement submitted that the complainant wanted to purchase the item No.1 to 4 and 7 mentioned in the complaint as well as the sale order dated 19-10-2014 for Rs.1,25,000/- and for which gift item Nos.5 and 6 were given, mentioned in the list of articles as free of cost and paid a sum of Rs.50,000/- only to the OP.
It is further submitted that said sofa set ordered is item no.1 of the list mentioned in the paragraph 1 of the complaint as well as sale order dated 19-10-2014 and accordingly sent to the complainant on 21-10-2014 Item No.1 and item No.7 multipurpose cabinet along with one gift articles as item no.5 mentioned in the said paragraph but complainant failed and neglected to pay balance amount for which it could not be delivered.
Against purported Advocate’s letter dated 24-11-2014 as received by the OP through the complainant’s Ld. Lawyer by speed post denied all the allegation and stating the truth of the entire incidents behind it.
It is further submitted that the sofa set after fittings delivered to the complainant without any objection and due to failure to pay the balance amount of Rs.55,000/- complainant falsely claimed that other articles were not delivered as per order and only for the intention to get money and to save their skin they have purposely filed this complaint against the OP for which the present compliant should be dismissed.
Decision with Reasons
On proper evaluation of the complaint and the written version and also considering the arguments as advanced by both the parties and further on proper assessment of the sales order we find that no doubt that 7 items of good i.e. 1) Sofa (3+3+1+1) Virgo Round (G.R.)/Modfurn/Sofa/Riyaz, 2) FX62 Corner Sofa (3+2+Corner)/Modfurn/Sofa, 3) Sofa Virgo Set (Puffee)/Modfurn/Sofa/Pufee, 4) Puffy/Modern/Puffy/Riyaz, 5) Center Table Fo5A/Modfurn/Center Table, 6) Center Table 920A/Modfurn/Center Table and 7) Multipurpose Cabinet 531/Modfurn/Shoe Rack total amount was fixed Rs.1,25,000/- and from that sales order it is found Sofa (3+3+1+1) Virgo round (G.R.)/Modfurn/ofa/Riyaz was ordered by that sales order dated 19-10-2014 and value was fixed Rs.42,050/- but complainant has claimed that she did not order for any such sofa but she paid a sum of Rs.20,000/- against supply one Virgo Sofa (3+3+1+1) which was not at all ordered by the complainant is a false claim of the complainant.
It is proved beyond any manner of doubt against total amount of Rs.1,25,000/- complainant admittedly paid on the date of placing order Rs.50,000/- and subsequently Rs.20,000/- and against that OP issued receipt and admitted fact is that complainant received the sofa but complainant allegation is that the sofa was an old one that is another point but the claim of the complainant that he never ordered for any virgo sofa (3+3+1+1) is completely false. However, after proper evaluation of the complaint and the sales order and other documents we find that already OP received Rs.70,000/- and supplied one Sofa (3+3+1+1) i.e. item No.1 of the sale order and also item No.7 multipurpose cabinet and one gift item No.5 as mentioned in the sale order and delivery challan supports that and against that delivery challan dated 21-10-2014 there is no allegation against the OP by the complainant. Complainant has not denied the fact of deliver of that 3 items that is item No.1, i.e. sofa, item No.7, Multipurpose cabinet and item No.5 one gift. But peculiar factor is that only about receipt of item no.7 and 5 complainant is silent it indicates that complainant has adopted unfaithful practice and suppressed the truth and has not appeared before this Forum with clean hand but truth is that complainant enjoyed the gift in respect of the sale order, already received item no.7 that is multipurpose cabinet and also item no.1, i.e. sofa. After considering the sale order and the supply of item nos.1, 7 and 5 and against that the value of the articles as mentioned in the sale order is that value of item No.1, Sofa is Rs.42,050/- and item No.7 is Rs.4,650/- but in respect of item No.5 the gift actual value is Rs.4,000/-. So, it is clear that complainant already received one gift item and two items 1 and 7 and the total value of the sum is Rs.42,050/- and Rs.4,650/- that means total rs.46,700/- so invariably complainant received item valued at Rs.46,700/- and against that one item that is gift valued at Rs.4,000/- received at free of cost. Then under any circumstances, complainant cannot claim refund of Rs.70,000/- but out of Rs.70,000/- complainant may get back Rs.23,300/- only. But we have failed to understand for what reason the complainant appeared before this Forum not with clean hands and suppressing the truth though she has enjoyed the gift along with received item Nos.1 and 7 of the sale order when delivery challan has proved it but even then the complainant did not care to refrain herself to tell a lie before this Forum. So, considering the above facts we are convinced to hold that no doubt already one year passed and out of the sale order two items that is item Nos.1 and 7 that is sofa (3+3+1+1) and multipurpose cabinet have already received by the complainant and already is being enjoyed for one year. So, there is no question of return of the same so, we have calculated the said valuation that is Rs.46,700/- for said two items at best balance amount of Rs.23,300/- is still in the custody of the OP and no doubt complainant is not willing to take any other item. In the above situation as per provision of law OP is bound to refund that amount of Rs.23,300/- but under any circumstances, complainant cannot get the entire amount of Rs.70,000/-.
In view of the present peculiar position and situation and also considering the date of that sale order and the loss of faith of the complainant upon the OP and at the same time OP also lost faith upon the purchaser that is the customer and in the above situation the entire consumer dispute can only be properly resolved after adopting this procedure for assessment proper relief. Accordingly OP is directed to refund Rs.23,300/- to the complainant out of Rs.70,000/- and no doubt OP has supplied two items with gift for value of Rs.46,700/- and after deducting that amount out of Rs.70,000/- OP shall have to refund Rs.23,300/- to the complainant and it was the duty of the OP to refund it when complainant prayed for refund of Rs.70,000/- and at that time if OP would show his honest business mode or process by expressing that OP is willing to refund of Rs.23,300/-. Invariably, in that case we shall have to dismiss the complaint but in the present case it is found that at the time of advancement of argument OP also tried to convince the Forum that noway he shall have to refund any amount because complainant did not comply but our view is that if any advance amount is paid for purchasing any goods by any customer to any seller and if customer does not purchase items against such paid amount in that case it is the fair business practice of the seller to refund the same but we have realized in this case that there is no fair business practice of the OP for which OP did not also refund the amount of Rs.23,300/- what the complainant is legally entitled to.
In the result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest with a cost of Rs.2,500/- against the OP.
OP is hereby directed to refund and repay a sum of Rs.23,300/- along with litigation cost of Rs.2,500/- i.e. total Rs.25,800/- within one month from the date of this order failing which for non-compliance of the Forum’s order penal damages at the rate ofRs.100/- per day shall be assessed till full satisfaction of the decree and if it is collected it shall be deposited to this Forum.
Even if, it is found that OP is reluctant to comply the Forum’s order in that case penal proceeding u/s.25 read with Section 27 of the C.P. Act shall be started against them for which further penalty and fine shall be imposed.
