Haryana

Panchkula

CC/368/2019

M/S HIMACHAYA LIFE SCIENCES. - Complainant(s)

Versus

KUSHWAHA ENTERPRISES. - Opp.Party(s)

PARMOD BHARDWAJ & ASSOCITATES

04 Mar 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

                                                              

Consumer Complaint No	:	368 of 2019
Date of Institution	:	25.06.2019
Date of Decision	:	04.03.2021

 

M/s Himchaya Life Science, Plot No.138, HSIIDC, Industrial Area, Barwala, Tehsil and District Panchkula through its Prop. Dinesh Kumar son of Sh. C.B.Arora.                                                                                                                                                                  ….Complainant

 

Versus

1.      Kushwaha Enterprises, Plot No.122/305, Shastri Nagar, Kanpur, District Kanpur(UP) through its Prop. Sh. Kunjan Lal.

2.      Kunjan Lal, Prop. Kushwaha Enterprises, Plot No.122/305, Shastri Nagar, Kanpur, District Kanpur(UP)

2^nd Address

Plot No.122/426, Shastri Nagar, Kanpur, District Kanpur (UP).

….Opposite Parties

 

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:                Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

For the Parties:    Sh.Y.P.Sharma, Advocate for complainant.    

OPs No.1 & 2 already ex parte vide order dated 04.10.2019.

 

ORDER

(Sh. Satpal, President)

1.               The brief facts of the present complaint are that the OP had approached and inspected the premises of the complainant on 12.08.2018 and showed its willingness to provide a Soap Making machines i.e. Sigma Mixer SS with Gare Box and motor 10 hp motor, 6” Twin Duplex Plouder SS with Motor and Gear Box Heavy Duty, Rotary Cutter, 8”X18” Triple Chill Roll with Heavy Duty Gear Box and Motor 7.5 HP with installation facility to start earning his livelihood. On this, the complainant requested the OPs to provide the quotation and accordingly, the OP No.1 supplied the quotation on the same day i.e. 12.08.2018 and discussed the time of installation of the machinery at Panchkula and payment was settled. Thereafter, as per the commitment of OPs, the complainant placed order of the above said machineries and accordingly, deposited an advance of an amount of Rs.2,50,000/- vide cheque no.000025 on 16.08.2018 and Rs.2,50,000/- vide cheque no.00027 on dated 20.08.2018 and thereafter, requested the OPs to supply the machinery mentioned as above. But the OPs linger on the matter of supply of machinery  and further demanded an amount of Rs.5,00,000/- from the complainant inspite of the fact that the payment schedule has already been settled on 12.08.2018 and having no other option the complainant again paid Rs.5,00,000/- by way of two cheques amounting of Rs.2,00,000/- & for Rs.3,00,000/-. After lapse of committed period, the OPs supplied the machineries on 13.11.2018 to him and linger on the matter of installation of the said machinery and due to which the machinery remained idle in the rental premises of the complainant. It is further stated that he has time and again requested the OPs to complete installation of the said machinery but the OPs inspite of installation of machine, they demanded an amount of Rs.1,00,000/-for installation and again having no option, the complainant paid further amount of Rs.1,00,000/- i.e. Rs.75,000/- through cheque and Rs.25,000 in cash. Thereafter, the Ops again visited the business premises of the complainant and disclosed that some part is missing in the said machine which is required to be arranged by the OPs and only thereafter, the said machines could be installed and put in operation. Again, this time also, the Ops demanded further an amount of Rs.1,00,000/- and under bonafide belief,  he handed over a  security cheque without date only to be presented after the installation. After taking the said cheque from the complainant, the OPs did not return for completing the installation of the machinery and kept on lingering the matter. This negative behave/attitude of the Ops, the complainant stopped the payment of the said cheque. Having no option, the complainant engaged other person/technician from outside for the installation of the said machinery and paid an amount of Rs.1,50,000/-. Due to the above act and conduct of the Ops, the complainant had suffered a great mental agony, harassment and financial loss/business loss.  Hence, the present complaint.

2.               Notices were issued to the OPs No.1 & 2 through registered post (vide registered post No.RH380457719IN to OP No.1, vide registered post No.RH380457705IN and RH380457753IN to OP No.2 at their first and second address on 27.08.2019), which were not received back either served or unserved despite the expiry of 30 days from the issuance of notices to OPs No.1 & 2; hence, it was deemed to be served and thus, due to non appearance of Ops No.1 & 2, they were proceeded ex-parte by this Forum vide its order dated 04.10.2019.

3.               To prove his case, the proprietor/complainant has tendered affidavit as Annexure C/A along with documents Annexure C-1 to C-11 in evidence and closed the evidence by making a separate statement.

4.               We have heard learned counsel for the complainant and gone through the entire record available on record, minutely and carefully.

5.               The grievance of the complainant are on two counts i.e. delayed delivery of soap making machine at the premises of the complainant as well as its non installation. For the sake of convenience, clarity and ready perusal, the details pertaining to the promised due dates of delivery of soap making machine, price of its each component and the payments made by the complainant have been reduced into tabular form below as per quotation dated 12.08.2018(Annexure C-1(colly)) and quotation dated 17.08.2018 (Annexure C-2), tax invoice (Annexure C-3), Consignment receipt of transport company (Annexure C-4) and account statement Annexure C-9.

         Table A showing the due date of delivery of machine as well as its installation as per Quotation Dated 12.08.2018 (Annexure C-1(colly))

Sr.	Task	Due date
1	Plant delivery	Within 45 days 27.09.2018
2.	50% Advance on order
3.	25% on performa invoices
4.	Balance as on plant installation	Plant installation

        

         Table B showing the price of machine as per Quotation dated 17.08.2018 (Annexure C-2 )

Sr.No.	Particular	Amount
1	250kg Sigma Mixer (S.S.Body & Inner teching) 10 hp motor Crompton with Gear Box Heavy Duty	Rs. 2,50,000/-
2	6” Twin Duples Plounder S.S. 10+7.5  HP Motor & Gear Box Heavy Duty	Rs.  6,25,000/-
3	Rotary Cutter	Rs.     25,000/-
4	8”x18” Tripple chill Roll With Heavy Duty Gear Box & Motor 7.5 HP	Rs.  2,00,000/-
5	Stamping Machine	Rs.     50,000/-
	Total Amount	Rs. 11,50,000/-
	GST 18%	Rs.   2,07,000/-
	Gross Total	Rs. 13,57,000/-

        

         Table C showing the price of machine as per Tax Invoice dated 13.11.2018 (Annexure C-3)

Sr. No.	Particulars	HSN CODE	Unit Rate	Amount
1	250kg Sigma Mixture SS with gearbox & motor,10, HP	8479 9090	1 nos	250000/-
2.	6” twin Duplex Plouder SS with gearbox & motor, 10+7.5,HP		1 nos	625000/-
3.	Rotary Cutler		1 nos	25000/-
4.	8”X18” triple Chill Roll Mill with gearbox & motor 7.5 HP		1 nos	200000/-
5.	Stamping machine		1 nos	50000/-
Bank Details: Bank Name: Central Bank of India A/C No.3467331043 IFSC Code: CBIN 0281430		Sub Total		1150000/-
		CGST @......%
		SGST @..........%
Amount in words:-		IGST @18%		207000/-
		Freight
		Total Value		1357000/-

        

         Table D showing the details of payments made by the complainant as per Bank Statement(Annexure C-9), Annexure C-10 & Annexure C-11

Tran. Date	Value Date	Chq. No.	Withdrawal	Deposit	Balance	Narration
16.08.2018	16.08.2018	25	2,50,000 Dr.	-	13,86,120.70 Dr.	Kushwaha Enterprises
30.08.2018	30.08.2018	27	2,50,000 Dr.	-	10,19,741.70 Dr.	Kushwaha Enterprises
06.11.2018	06.11.2018	000016	3,00,035.40 Dr.	-	22,073.70 Cr.	RTGS/Kushwaha Enterprises
14.11.2018	14.11.2018	19	2,00,000 Dr.	-	2,11,552,.70 Cr.	Kushwaha Enterprises
28.01.2019	28.01.2019	000113	75,005.90 Dr.	-	39,116.44 Cr.	NEFT/Kushwaha Enterprises

 

6.               The OPs did not appear to contest the claim of the complainant and preferred to be proceeded ex-parte, for which adverse inference is liable to be drawn against them. The non-appearance of the OPs despite notice shows that they have nothing to say in their defence or against the allegations made by the complainant. Therefore, the assertions made by the complainant go unrebutted and uncontroverted.

7.               Upon a bare perusal of above, it is evident that neither the complainant nor the OPs have strictly followed the time schedule with regard to the due dates. The complainant has been found to have made the payment amounting to Rs.2,50,000/- on 16.08.2018 and another Rs.2,50,000/- on 30.08.2018 against the promised amount of Rs.5,75,000/-, which is 50% of the total value of the machine i.e. Rs.11,50,000/- and thus, the payment made was short by Rs.75,000/-. Similarly, the OPs have failed to deliver soap making machine at the premises of the complainant within the agreed time schedule as the same was delivered in the month of December, 2018. Thus, both the parties made default in respect of agreed time schedule.

8.               The second grievance of the complainant is about the non installation of the soap making machine. We have no version of the OP in the shape its reply and written statement alongwith any documentary evidence as it has been proceeded against ex-parte vide order dated 04.10.2019. However, the e-mail dated 17.03.2019 and e-mail dated 26.04.2019(Annexure C-5) followed by reminder (Annexure C-6) from the complainant to the OPs to install the machine so as to make it functional leave no scope of doubt that the OPs have failed to carry out its obligation regarding installation of the machine and make it functional and operational. Regarding payments as per table D, the complainant has been found to have made the payments to the OPs amounting to Rs.10,75,000/- on several dates 16.08.2018, 30.08.2018, 06.11.2018, 14.11.2018 & 28.01.2019 and Rs.25,000/- in cash as per affidavit Annexure C/A and thus, total payment of Rs.11,00,000/- has been made against the price of Rs.11,50,000/- of the machine. Thus, the complainant has made a short payment of Rs.50,000/- to the OPs against the price of Rs.11,50,000/-(excluding GST  of Rs.2,07,000/-)of the machine but the OPs in any case cannot be absolved of their duty to make the soap making machine functional and operational. The OPs after receiving an amount of Rs.11,00,000/- from the complainant qua the price of the machine was under bounded duty  to install the soap making machine by making its functional at site. It is also on record that the complainant, under the compelled circumstances, got the soap making machine installed and functional from Brillpak Technologies after making a payment of Rs.68,000/- to the said Brillpak Technologies as is evident from Annexure C-7 & C-8. Therefore, the OPs have been found deficient while not installing the soap making machine and further not making it functional and operational even after receiving a substantial amount of  Rs. 11,00,000/-, thus, the complainant is entitled to relief.

Coming to relief clause, we find that the complainant has claimed the relief against the OPs under the following heads:-

1. Rs.1,50,000/- on account of non installation of soap making machine.

As concluded above, the OPs have failed to make the soap making machine functional. The complainant has incurred an expenses of Rs.68,000/- in getting the said machine installed. As per complainant, the machine remained non functional for a period of about six months. In these circumstances, in our opinion, a compensation of Rs. 68,000/- would be adequate and proper.

2. Rs.1,20,000/- on account of Rent of the building.

Claim under this head is rejected for want of any proof regarding the payment of rent of the building.

 

3. Rs.5,00,000/- on account of mental agony and harassment as well as Rs.11000/- on account of litigations charges.

 

In our opinion, a compensation of Rs.15,000/- would be sufficient on account on account of mental agony and harassment as well as Rs.7,500/- on account of litigations charges.

 

9.               As a sequel to above discussion, we partly allow the present complaint with the following directions to the OPs No.1 & 2:-

1. To pay a sum of Rs.68,000/- on account of non installation of the soap making machine to the complainant.
2. To pay an amount of Rs.15,000/- to the complainant on account of mental agony and harassment.
3. To pay an amount of Rs.7,500/- as cost of litigation charges.

 

10.             The OPs No.1 & 2 shall comply with the order within a period of 30 days from the date of communication of copy of this order failing which the awarded amount shall carry an interest @9% per annum from the date of this order till its realization. The complainant shall also be at liberty to approach this Commission for initiation of proceedings under Section 71 of CP Act, against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:04.03.2021

 

 

Dr.Sushma Garg           Dr. Pawan Kumar Saini          Satpal           

         Member                             Member                     President

 

Note: Each and every page of this order has been duly signed by me.

 

                                       Satpal                                  

President