Date of Filing: 09/05/2011

        Date of Order: 20/07/2011

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE -  20

Dated:  20^th DAY OF JULY 2011

PRESENT

SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT

SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER

SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER

COMPLAINT NO. 880 OF 2011

Sri. Vinod C.S,

Managing Director,

Erandia Resorts Pvt. Ltd.,

# C 22, Sankar Lane,

Sasthamangalam,

Thiruvanandapuram-10.

Kerala State.

(Rep. by Advocate Madanan Pillai. R)                                          Complainant.

-V/s-

Krishna Transntional Marbles Pvt. Ltd.,

Rep. by its Director Mr. Vinay Babu D.R.,

Sarajapur Road, Bangalore-560 035.

Rep. by Director.

(Rep. by Advocate B.R. Dwarakanath)                                   Opposite parties.

BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT

ORDER

            The brief antecedents that lead to the filing of the complainant made under section 12 of the Consumer Protection Act, seeking direction to the opposite party to pay a sum of Rs.8,10,189.98 paise, are necessary:-

            The complainant is the managing director of the private limited company by name and style “Erandia Resorts Private Limited”.  The opposite party was introduced to the complainant by one of its consultant Mr. Sreeganesh of M/s. Ganesh Technical, Consultancy Services, Cochin, Kerala State.  The complainant placed an order on 27.05.2010 with the opposite party for the purpose of supply of 2584 Square feet of Sira Grey flamed granite 20 mm thickness and 155 squre feet of Sira grey flamed granite of 40 mm thickness for the maintenance and repair of the resort at Mararikulam in Alapuzha District in Kerala State, as per conditions.  On 29.05.2010 the complainant paid Rs.1,61,306/-.  After the receipt of the said amount the opposite party wanted further advance of another 25%.  Accordingly the complainant paid Rs.80,653/- on 05.06.2010.  In all he had paid Rs.2,41,959/- towards advance.  As per the terms agreed the opposite party had to supply the material immediately but the opposite party had given a lame excuses that the consignment was held at Valayar check post at Coimbatore.  But further informed on 02.07.2010 that it will pay the amount after deducting penalties, transportation charges and fee paid at the check post by 06.07.2010.  In spite of repeated requests and demands and notice dated: 19.06.2011 the opposite party has not returned the amount.  Another notice was issued on 10.03.2011 in spite of that the opposite party has not paid the money.  It is deficiency in service and unfair trade practice.  Hence the complainant is entitled to Rs.2,41,959/-, interest thereon at 24% amounting to Rs.53,230.98 paise, Rs.5,00,000/- towards mental agony and Rs.15,000/- towards costs, in all Rs.8,10,189.98 paise.  Hence the complaint.

2.        In this case the opposite party engaged the service of an advocate and filed an alleged version.  The said version neither contained signature of the opposite party nor verification of the opposite party nor any affidavit verifying the alleged version.  Hence it is no version at all.  Hence it is not summarized. 

3.        To summarize their respective pleadings the parties have filed their respective affidavits. The arguments were heard.

4.        The points that arise for our consideration are:-

1. Whether the action of the opposite party amounts to unfair trade practice/deficiency in service?
2. What order?

5.        Our findings on the above points are:-

            Point (A)       :           In the Positive.

Point (B):           As per the final order

For the following:-

REASONS

6.        The complaint is summarized supra, the same be read here in again.  The opposite party has not filed any version in the sense the version is filed by the advocate for the opposite party which neither contains the signature of the opposite party nor the verification of the opposite party nor any affidavit accompanying the version.  Hence it is no version at all.  Hence the allegation made in the complaint is not challenged and there is nothing to disbelieve the same.

7.        Further the affidavit of the opposite party is no affidavit in the sense without version the affidavit has no legal sanctity in the sense, any amount of evidence without pleading is no evidence and any amount of pleading without evidence is no evidence is the fundamentals of law that is applicable to the facts and circumstances of this case.  

8.        Reading the complaint in conjunction with the documents of both the parties it is established, not challenged, not denied, but admitted that the complainant as the Managing Director of M/s. Erandia Resorts Private Limited has placed an order with the opposite party for supply of certain materials on certain conditions.  The said order reads thus:-

That is to say the complainant has placed an order with the opposite party for supply of Sira Grey flamed granite of certain dimensions and it shall be supplied to the complainant on payment of 50% of the advance and remaining 50% shall be paid to the opposite party at the time of delivery. 

9.        Further it is an undisputed fact that the complainant had paid 50% of the amount amounting to Rs.1,61,306/- on 29.05.2010.  It is also an admitted fact that after receipt of the said 50% as an advance the opposite party did not demand of any documents or any details but they wanted another 25%.  Accordingly the complainant paid another sum of Rs.80,653/- on 05.06.2010.  Even after receipt of this amount the opposite party never cared to deliver the materials to the complainant at their place as agreed on 27.05.2009.  That means the intention of the opposite party is only to get money and not to supply the materials.  This is nothing but an unfair trade practice.  Till today the opposite party has neither delivered the materials nor returned the money.

10.      In this regard on 02.07.2010 the opposite party has sent an e-mail to the complainant at 18:01:15 hours which reads thus:-

That means, the opposite party going to deduct the fee paid at check-post and the transportation charges and will return the balance amount even that has not been done till today.  The complainant has written several letters, e-mails to the opposite party.  The complainant issued notices on 10.03.2011 and on 18.03.2011.  The opposite party though received the notices have not replied nor sent the materials to the complainant, nor returned the money.

11.      Anyway the opposite party has produced an e-mail correspondence dated: 11.07.2010 between Smitha Jayaraman and Shreeganesh.  The complainant is not a party to this e-mail nor that e-mail is forwarded to the complainant at any point of time.  Anyway the said e-mail has no bearing or no legal sanctity against the complainant.  According to the terms agreed on 27.05.2010 as discussed supra, the opposite party shall make the goods ready for dispatch on 01.06.2010.  It must reach immediately Mararikulam.  The total amount that has been agreed is inclusive of transportation taxes levies.  The complainant is not held liable for any direct tax or indirect tax liabalities arising out of the transport of the goods from Bangalore to Mararikulam.  How complainant is liable to pay any amount in addition to the amount under any condition what so ever?  All liabilities are on the opposite party.  Hence the contention of the learned counsel for the opposite party that, as the complainant has not furnished TIN number that is tax information number, the opposite party is not liable for anything and because of that the material which were sent were held up at the check post at K.G. Chavadi in Coimbatore.  This is an untenable contention

12.      When the material is purchased only for the purpose of maintenance and repairs of their resort it does not mean that its TIN number is required.  The opposite party should have intimated the complainant at the time of purchasing itself at the time of an agreement itself about this requirement that has not been done.  Here the complainant has not purchased any material for its commercial purpose.  It is for repair work that means it is for personal use and not for commercial purpose, hence TIN number excuse is a lame excuse.

13.      Hence this TIN number is not required.  After paying the alleged penalty the opposite party would have delivered the material at Kerala which is nearby Coimbatore that has not been done it has taken back the material why?

14.      It was contended during the course of the arguments that the complainant is a business man hence the complaint is not maintainable.  The learned counsel for the opposite party cited the decision in II (2010) CPJ 91 and III (2010) CPJ 333 (NC) passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata and the National Commission, New Delhi, respectively.  There is no dispute about the proposition of law stated therein.  Those facts and circumstances are not applicable to the facts and circumstances of this case.  Here the complainant has not purchased any material for the purpose of any commercial activities.  He has purchased for the maintenance and repair of his establishment.  That is not a commercial activity.  Even otherwise there is no material to hold that the complainant is not a consumer; there is no such pleading at all nor such material is there.

15.      It is further contended by the learned counsel for the opposite party that the complaint as such is not maintainable in the sense the managing director of the company has filed the present complaint and there is no jural relationship between the parties in this complaint.  This is an untenable complaint.  We have to read the complaint in conjunction with all the documents.  Here the complaint is filed by the Managing Director as the Managing Director of M/s. Erandia Resorts Private Limited and not in his individual capacity.  The Managing Director have entered in to the contract with the opposite party had paid money to the opposite party as the Managing Director hence as a Managing Director he has filed the complaint.  There is nothing wrong in it.  Even it is seen that the complaint is signed for M/s. Erandia Resorts Pvt., Ltd., its Managing Director.  That means it is M/s. Erandia Resorts Private Limited which has made the complaint and not Mr. Vinod C.S. in his individual capacity.  In the cause title merely saying that the Managing Director, M/s. Erandia Resorts Private Limited in the beginning is only a typographical mistake that as contended.  It should have been M/s. Erandia Resorts Pvt., Ltd., by its Managing Director.  Anyway reading the entire complaint and the signature and verification made to the complaint it clearly goes to show it is M/s. Erandia Resorts Private Limited that has made the complaint through its Managing Director.  Hence this contention is taken only for the sake of the contention as rightly contended.

16.      The opposite party has produced the proceedings of the Commercial Tax Officer they (Enforcement) KG Chavadi Coimbatore dated: 20.10.2011.  Ordering release of certain goods and receiving compounding fees of Rs.90,450/-.  This does not say this is with respect to the granite in question in this case.  This receipt is issued to Mr. P. Raghavendram AR.  Here the driver’s signature is blank and he enclosed form is also blank.  Hence it has no bearing at all.  For its mistake it committed, the opposite party has to bear in.  The opposite party has never stated on what date in which lorry it has sent the materials? What is the GC note? Etc.,.  Hence under these circumstances the opposite party is liable to refund the entire amount as it has not sent the materials, it is liable to pay interest on the amount and costs of this litigation.  He we hold the above points accordingly and proceed to pass the following:-

ORDER

1.        The complaint is Allowed-in-part.

2.        The opposite party is directed to pay to the complainant a sum of Rs.2,41,959/- together with interest thereon at the rate of 12% per annum from 12.05.2010 until payment within 30 days from the date of this order .

3.       The opposite party is also directed to pay Rs.2,000/- to the complainant towards cost of this litigation.

4.       The opposite party is directed to send the amounts as ordered at Serial Nos. 2 & 3 above through DD by registered post acknowledgment due to the complainant and submit the compliance report to this Forum with necessary documents within 45 days.

5.       Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.

6.       Send a copy of this order to both parties free of costs, immediately.

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 20^th  Day of July 2011)

MEMBER                                               MEMBER                                         PRESIDENT