BEFORE THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

C.C NO-5/2020

Present-Sri Dipak Kumar Mahapatra, President, Smt. Smita Tripathy,Member (W).

Rajkishore Sahu, aged about 58 years,

S/O- Narsingh Sahu,

R/O-Mouja Bausenmura,P.S-Dhama,Dist-Sambalpur,

At present at-Modipara Traffic Chowk,

P.O-Modipara,P.S-Town,Dist-Sambalpur.                                                           …..Complainant

Vrs.

Mahesh Agrawal,

S/O- Gobind Prasad Agrawal,

R/O- Subarnapur,P.O- Amkuni,

P.S-Dhama,Dist-Sambalpur.                                                                       …….O.P

Counsels:-

1. For the Complainant:-  Sri R.L Sharma, Advocate & Associates.
2. For the O.P          :-         Sri A.K.Hota, Advocate & Associates.

DATE OF HEARING : 22.02.2021, DATE OF ORDER : 24.02.2021

SRI DIPAK KUMAR MAHAPATRA,PRESIDENT:-         Brief facts of the case is that the Complainant has purchased Red Colour Bricks(MDM) on payment from the O.P who is alleged to producing and marketing the same. The Complainant has entered into a verbal agreement with the O.P for supply of 40,000 Red Colour Bricks @ Rs.3,500 per thousand Bricks. On dtd. 15.01.2019 the Complainant has paid Rs.1,40,000 in  advance to the O.P towards full and final consideration of the Bricks through NEFT (cheque bearing no-72572,SBI main Branch Sambalpur) to the account of the father of the O.P vide A.C No-11800843177. But the O.P has supplied only 18,000 bricks to the Complainant till February 2019 without any bill/receipts. The O.P thereafter expressed his inability to provide rest of 22,000 bricks but agreed to refund Rs.77,000/- (cost of 22,000 bricks)to the Complainant. The O.P handed over a cheque  bearing no-711092 dtd.30.07.2019 amounting to Rs.49,000/-relating to SDCC Bank, Maneswar branch Sambalpur with a promise to refund the rest amount shortly. When the O.P did not turn up to refund the balance amount of Rs.28,000/- the Complainant on dtd. 16.12.2019 served a pleader notice through Regd. Post with AD for making payment within seven days.

But the O.P has denied the allegations that he has not any Red Brick manufacturing unit at Subanpur. He has made some bricks for his own use and some were lying unused in his house at his village. On request of the Complainant the O.P became agreed to sell those bricks @ 5,000/- per 1000 bricks and made an Oral agreement. The O.P admitted the fact of receipt of payment of Rs.1,40,000  as advance deposited in the account of his father. The O.P has sold 18,000 bricks to the Complainant in different dates but denies to give rest 22,000 bricks to the Complainant and refund Rs.77,000/-.  The O.P has deducted Rs.91,000/- for the price of 18,000 bricks  but not ready to refund of Rs.28,000/- to the Complainant. As there was an Oral Agreement between the parties which is purely CIVIL by nature, so the Commission has no jurisdiction to try this case and the O.P shall not be penalised anyway.

POINTS OF DETERMINATION:-

1. Whether the Complainant is comes under the purview of Consumer Protection Act-2019?
2. Whether the oral agreement between the parties are valid?
3. Whether the O.P has committed any Deficiency in Service to the Complainant?

From the above discussion and materials available on records we inferred that the Complainant comes under the purview of Consumers as he has purchased some bricks from the O.P for consideration of money in advance. That the Complainant claims that he had an oral agreement with the O.P but it is now violated by the O.P. On considering the validity of Oral agreement we found that -Under Section 10 of the Act- All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. By fulfilling the above necessary requirements, an agreement becomes a contract under Section 10 of the Act. Section 2(e) of the Act says that an Agreement is defined as “every promise and every set of promises forming the consideration for each other”. When a person makes an offer to another and that offer is accepted by the other person that offer becomes a promise. The offer is a starting point for making an agreement and it is important that how such offer is communicated. Section 3 of the Act says - a communication of an offer can be made through the mouth, or writing, or even by the conduct. This type of offer which is communicated through mouth or writing is called ‘express offer’ the Supreme Court has given the verdict on the Acceptability of oral agreement under Indian contract act in the matter of (Ref:- Alka Bose vs. Parmatma Devi & Ors [CIVIL APPEAL NO(s). 6197 OF 2000].  All oral and written agreements will be valid if they fulfill the conditions specified in Section 10. Here the Complainant has successfully proved the existence of an oral agreement. The appellant filed the case for specific performance of sale agreement. The sale agreement was oral in nature. The Complainant has showed the pass book details where it has been clearly mentioned that an amount of Rs.1,40,000/- has been transferred to the A/C(vide No- 11800843177) of the father of the O.P on dtd.15.01.2019 for the consideration of the subject matter. This matter has been well settled in the case of  S.V. Narayanaswamy vs. Savithramma 2013R.F.A.No.1163 of 2002 c/w R.F.A.No.1164 of 2002 Karnataka High Court, where the appellant Respondent willfully acted towards the agreement. It is clear that there was an agreement between the Complainant and the O.P. After considering the shreds of evidence produced by the Complainant, the court held that there was an oral agreement between the two. The account statement in the pass book of the Complainant were shown as an evidence that entire considerable amount was paid. This clearly proves the oral agreement.

Again in the written statement filed by the O.P it is evident that he has accepted that he has charged Rs.5000/- per thousand of bricks and supplied 18,000 of bricks, so he has to deduct Rs.90,000/- from the advance payment made by the Complainant. But the O.P has deducted 91,000/- which clearly reveals the malafide intensions of the O.P which leads to Unfair Trade Practice as per the C.P Act-2019. Hence the O.P has committed Deficiency in Service along with Unfair Trade Practice to the Complainant and we order as under:-

ORDER

The Complaint petition is allowed. The O.P is directed to refund the balance amount of Rs.28,000/- to the Complainant as per the Oral Agreement made with the Complainant . The O.P is further directed to pay Rs. 3,000/-(Rupees Three Thousand)as compensation and Rs.2,000/- (Rupees Two Thousand) towards the cost of litigation. All the orders are to be carried out within 30 (Thirty) days of receiving of this order, failing which to the O.P will have pay the Complainant  with 9% interest on the balance amount from the date of order till the date of actual realization of amount.     

Order pronounced in the open Court today i.e, on 24^th day of February 2021 under my hand and seal of this Commission.

Office is directed to supply copies of the Order to the parties free of costs receiving acknowledgement of the delivery thereof.

I agree,                                                                                            

           -Sd/-                                                                                               -Sd/-

MEMBER(W)                                                                       PRESIDENT

                                                            Dictated and Corrected

                                                                             by me.

-Sd/-

                                                                       PRESIDENT