Date of filing : 21.09.2017

Judgment : Dt.20.12.2018

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Smt. Suchismita Chakraborty alleging deficiency in service on the part of the opposite party namely Kabita Jewellers and its sole proprietor Sri Sujan Karmakar.

            Complainant’s case in short is that Complainant had ordered for a gold neck chain weighing about 40 gms from the OP the sole proprietor of Kabita Jewellers and as asked by the OP to deposit a sum of Rs.1,20,000/- towards the cost of the said gold, the Complainant deposited a sum of Rs.1,20,000/- with the OP who issued a receipt bearing receipt No.2931 dt.16.3.2017  in the name of the Complainant and undertook to deliver the said gold ornament on 14.4.2017. But, when Complainant went to the OP on 15.4.2017 for delivery of the gold chain, OP requested the Complainant to come after couple of days as he could not complete making of the chain. The Complainant thereafter went on repeated occasions, but the OP on one or other pretext avoided to deliver the ornament and even refused  to refund the said sum of Rs.1,20,000/-.

            So, finding no alternative, complainant issued a notice upon the OP through her Ld. Advocate claiming the refund of the sum of Rs.1,20,000/- along with interest @ 18% p.a. But, in spite of the same, the OP neither delivered the chain nor refunded the amount and, thus, the present case has been filed by the Complainant directing the OP to pay the sum of Rs.1,20,000/- and Rs.80,000/- towards interest @ 18% p.a. and also the damages, in alternatively prayed for directing the OP to deliver the gold made chain 40 gms in weight and the interest and damages of Rs.80,000/-.

            The OP has contested the case by filing written version denying the material allegations made in the complaint petition. It is the case o f the OP that the Complainant had made several visits between 16.3.2017 and 14.4.2017 and frequently changed her specifications and designs which resulted delay in the process of delivery. It is further case of the OP that he has returned to the Complainant a sum of Rs.80,000/- in presence of Sri Debasis De and thus only an amount of Rs.40,000/- is due to be paid, which he is ready and willing to refund. Thus, the OP has prayed for dismissal of the complaint petition.

            With the complaint petition, Complainant has annexed copy of the receipt dt.16.3.2017 issued by the OP and also copy of the notice sent by the Complainant on 13.7.2017 through her Ld. Advocate.

            During the course of the evidence, both the respective parties adduced evidence by filing affidavit-in-chief and the questionnaire as well the reply thereto.

            During the course of the argument, Ld. Advocate for the Complainant has emphasized that an amount of Rs.1,20,000/- was paid, has not been disputed and if according to the OP he has returned Rs.80,000/-, it is for him to prove the same.

On the other hand, Ld. Advocate for OP has argued that the money was spent towards the purchase of the gold. The delay was caused due to the act of the Complainant as she repeatedly changed the design of the chain. It is also submitted that only Rs.40,000/- is due to be paid.

So, in the back drop of the case of both the parties, following points require to be determined.

            1) Whether the OP has rendered any deficiency in providing service or has committed any unfair trade practice?

            2) Whether the Complainant is entitled to the relief as prayed for?

            Decision with reasons

            Point Nos.1 & 2

            Both these points, being inter related, are taken up together for discussion for the sake of convenience and to avoid repetition.

           At the very outset it may be pertinent to point out that it is not disputed by the OP that the Complainant had ordered for a gold chain and he had issued receipt dt.16.3.2017, filed by the Complainant. On perusal of the said receipt, it is apparent that for the gold weighed 40 gms, Rs.1,20,000/- was paid by the Complainant o n the said very date of issuance of the receipt. The receipt also discloses that the due date for delivery of the ornament was on 14.4.2017. According to the Complainant, she went immediately after the due date i.e. on 15.4.2017. But she was told by the OP that the chain was not ready and even thereafter on repeated occasions the OP failed to deliver the chain. Thus the fact that the gold chain has not been delivered is not in dispute.  The only contention which has been raised by the OP is that there has been delay due to the change of design by the Complainant. But, in this context, he has neither filed any document, nor any further receipt to show alleged change in design by the Complainant. Further, according to OP, he has paid Rs.80,000/- but no document is filed by him to show the payment. It appears that in reply to the question of the Complainant being question No.15, whether OP can show any document or money receipt regarding return of the sum of Rs.80,000/-, the OP has answered that he is in possession of an important record and will produce the same before the Forum. But for the reason, best known to the OP, no such record in order to substantiate his claim that Rs.80,000/- has been returned, is filed by him. A bare assertion about return of the amount will not be sufficient to prove that such amount has been returned specially when the OP is a proprietor of a shop. It is hard to believe that without keeping any receipt he shall make such payment. So, the contention of the OP that he has paid Rs.80,000/- cannot be accepted. If that be so, then the OP is liable to pay the entire amount of Rs.1,20,000/- along with interest in the form of compensation as there has been unfair trade practice on his part.

Thus these points are answered accordingly.

            Hence ordered

            CC/552/2017 is allowed on contest.

            The OP is directed to return Rs.1,20,000/- to the Complainant along with interest on the   said amount @ 10% p.a. from March, 2015. He is further directed to pay Rs.10,000/- as litigation cost.

            The OP shall pay the entire amount as stated above within two months from the date of this order failing which the amount shall further carry interest @ 10% p.a. till its realisation.

              In alternatively OP is directed to deliver gold neck chain weighing 40 gms to the Complainant along with litigation cost of Rs.10,000/- within the above said period of two months.