[1]                    This is the case wherein the Complainant has filed the present complaint, alleging deficiency in service against the Opponent for not delivering the badges on the promised date. The facts giving rise to the present complaint are in brief as follows :-

 

The Complainant had paid Rs.5,000/- by way of advance payment to the Opponent And the Opponent had promised to deliver a sample badge by 30^th March and deliver the entire consignment on 10/4/2011. However, the Opponent failed to deliver the badges as promised. The Complainant hence requested the Opponent to deliver the badges latest by 20^th April 2011 as the event of Barakhana was scheduled on 21^st of April. An officer of the Complainant and one staff stayed in the office of the Opponent to ensure expedition of delivery.   The Opponent had promised to give the delivery on 21^st April by 2 ‘o’ clock. But despite of all the efforts made by the Complainant, the Opponent failed to deliver the consignment on 21^st April as promised. Hence the Complainant had no other option but to cancel the order. It is the grievance of the Complainant that the Opponent refused to cancel the order and refund the advance of Rs.5,000/-.paid at the time of order booking. The act of the Opponent not honoring his commitment to deliver the goods on the date promised is a case of deficiency in service and hence the Complainant has requested the Forum to order the Opponent to refund the amount of Rs.5,000/- alongwith interest and other ancilliary amounts. In support of the complaint, the Complainant has filed affidavit of authorized officer of the college and three documents vide exh. 5.

 

[2]                    On receipt of Forum’s notice, the Opponent appeared in person and filed his say along with affidavit and two documents. The Opponent has denied all the allegations made by the Complainant against him in respect of deficiency in service. It is the contention of the Opponent that a sample piece was kept ready and this sample was to be approved by the Opponent by 30^th March 2011. Accordingly, the Opponent had kept the sample ready and had submitted it to the Complainant for approval. However, there was a delay in approval of the sample by the Complainant which led to revision ofthe delivery schedule from 10 April 2011 to 20^th April 2011. The opponent claims that he had made it clear to the complainant that delay in approval of the sample had made it difficult to meet even the dead line of 20 April 2011, However on the request of Complainant he agreed to give it a try. According to the Opponent, Mr. Raju, who had come on behalf of the Complainant to collect the badges, did not have balance amount to make the necessary payment against delivery. Mr. Rajiv insisted for the delivery with assurance that balance payment would be made later, to which the Opponent refused. According to the Opponent, the Complainant had not followed the normal routine procedure for placing the order. According to him there is no deficiency in service as the goods were ready for delivery but could not be handed over due to non payment of the due balance amount. In view of the fact that there was no written agreement mentioning the clause of cancellation of order the present complaint of the Complainant cannot be allowed. According to the Opponent, since the Complainant has not taken the delivery of the goods, great monetary hardship was caused to him and hence he has requested direction to the Complainant to collect the goods on payment of the balance due amount along with interest. 

 

[3]                    After filing the say by the Opponent, the Complainant filed purshis vide exh. 13 that it does not wish to file any further evidence. Hence the matter was posted for arguments. The Complainant filed its written notes of arguments at exh. 14 whereas the Opponent filed his written notes of arguments at exh.15. Thereafter, Adv. Smt. Kulkarni was heard on behalf of the Complainant and the Opponent was heard in person and the matter was posted for judgment. 

 

[4]                    On perusal of the complaint, say, documents and arguments advanced by both the parties, the following points arise for our consideration. The points and their answers are as follows :-

Point No. 1 :- Has the Complainant proved that the                

 

Point No. 2 :- Does the complaint deserve to be

 

Point No. 3 :- What order ?                                          … As per final order.

 

Point Nos. 1 and 2 :- Since these two points are connected with each other they are being discussed together. On perusal of the complaint it can be seen that it is the specific allegation by the Complainant that the Opponent had promised to deliver the badges on 21^st April but failed to do so inspite of receipt of an advance amount of Rs.5,000/-. The fact of receipt of amount is admitted to the Opponent. However he has specifically and categorically denied the date of delivery. It is the contention of the Opponent that since the approval of the sample was delayed by the Opponent, the delivery schedule was revised and he had agreed to deliver the goods by 25^th of April. This date was verbally agreed and was not documented. On perusal of the documentary evidence it can be seen that the approval of the sample was condition precedent for delivery of the goods. There is nothing on the record to show when the sample was approved.  It can be seen from the documents at Exh. 11/1 that he had promised to give the delivery of the sample by 30^th of March. The Opponent has raised a specific contention that the sample was not approved by the Complainant within stipulated period and hence the delivery was delayed. If we peruse the entire evidence which is filed on record by both the parties it can be seen that the terms and conditions in respect of the delivery of the goods were not transcribed into writing. The Complainant has come with a case on affidavit that there was breach of terms and conditions by the Opponent. Whereas the Opponent has come up with a specific   defence that breach was committed by the Complainant itself. In view of evidence in the form of word against word we have to base our conclusion on the circumstantial evidence. If we peruse the documents filed by the Complainant in support of its complaint, it can be seen that it has not produced any evidence to show that in spite of repeated reminders or demands the Opponent did not deliver the goods in time. Moreover, the Complainant has not even filed any evidence in support of its grievance in respect of date of delivery. It can be seen from the documents on record that one Mr. Raju was following up with this matter of badges with the Opponent. However for the reasons best known to the Complainant, it has not even filed affidavit of Mr. Raju. The Opponent has come out with a specific case that his goods were ready but since the Complainant wanted the delivery of the goods without paying the entire consideration, he refused to handover the same.   In fact the Opponent had brought those badges before the Forum. According to the Opponent, since the goods were ready for delivery there was no question of canceling the order. We find merit in the submission of the Opponent. The Opponent has placed on the record copy of formal purchase order issued by the Opponent in the normal course. The Complainant being an institution such a formal order was necessary. However without issuing any such purchase order, the Complainant seems to have had some transactions with the Opponent. It is the basic principle of law that the person   who comes to the Forum with a grievance of deficiency in service has to prima-facie prove his grievance on the basis of some evidence. However in the present case the Complainant has miserably failed to do so. There is nothing on the record to prove that there were repeated reminders or follow up of the Complainant for delivery of goods. The affidavit of Mr. Raju is also not on record. If the goods were ready with the Opponent, which he had brought before the Forum, we see no reason why the delivery should not be handed over to the Complainant, except for the non- payment of the balance consideration.   The Complainant has miserably failed to prove any deficiency on the part of the Opponent and hence the demand of the Complainant to get the money back becomes a case for recovery of money. Such a case can not be entertained by the Consumer Forum under the provisions of Consumer Protection Act. Hence the complaint deserves to be dismissed. Before we proceed to pass the final order we would like to mention that xerox copy of the document produced by the Complainant in support of its contention was not legible. Hence a direction was given to Advocate for the Complainant to file the original document for perusal of the Forum. However, no such document was produced. Hence no reference is made in the judgment to the document filed by the Complainant. 

 

(i)                  The complaint stands dismissed.

 

(ii)                No order as to costs.

 

(iii)               Certified copies of this order be supplied to