The case of the Complainant is that for earning his livelihood intended to purchase a 50 ton capacity  Weigh Bridge for his rice Mill at a cost of Rs.3,25,000/-  from O.P. Accordingly, the Complainant placed purchase order on 18.11.2013  in order to purchase the Weigh Bridge and as an advance paid Rs.1.00 lakh on the same day. Thereafter, as per contract between the parties, the Complainant paid again Rs.1.00 lakh on 26.11.2013. The O.P. also assured to dispatch the Weight Bridge in question within a month. Subsequently, as assured by him the Weigh Bridge was not dispatched for which as desired by O.P., the Complainant paid Rs.73,000/- on 17.12.2013 by borrowing the same from his friends and relatives. Surprisingly, the O.P. vide his letter dt.29.03.2014 intimated the Complainant that he shall deliver  the Weighing Machine by 09.04.2014 or in default refund the deposited advance amount of Rs.2,73,000/- within 7 days.  As the O.P. did not deliver the Weigh Bridge as per his commitment, the Complainant sent Advocate’s Notice on 22.04.2014 to O.P.  calling upon him to deliver the Weigh Bridge or to  refund the advance amount of Rs.2,73,000/- within 7 days. But after receipt of Advocate’s Notice, the O.P neither deliver the Weigh Bridge nor refunded the advance amount even after  running to the Office of the O.P. several times by the Complainant. So alleging deficiency in service on the part of O.P. the Complainant filed this case on 12.05.2014 praying for a direction to O.P. to supply the said 50 tons Weighing Machine or to refund the advance amount of Rs.2,73,000/- with up-to-date interest along with compensation of Rs.50,000/- and litigation cost of Rs.15,000/- to him.

            O.P. filed his written version admitting to have received Rs.1,00,000/- on 18.11.13 and thereafter Rs.1,73,000/-  on two occasions for supply and installation of 50 ton capacity Weigh Bridge. But due to serious illness of his father installation of machine was delayed. The civil construction work was started after receipt of  2nd phase payment. The civil construction was delayed due to non-availability of labour and mason arranged by the Complainant. However, the construction work was completed by end of March,2014. For the purpose of drawing, designing and engagement of engineer for civil construction, a sum of Rs.45,000/- has been contributed by O.P.-Company. Thereafter, the Complainant expressed his willingness to supply 10 mm iron plate.  Believing the version of the Complainant,  the O.P.   in his letter dt.29.03.2014  under took to supply the weigh bridge by 9th April,2010 . Accordingly, the O.P sent 7 pcs. Of iron beam to the weigh bridge site and the total cost of the said iron beam is Rs.44,100/- besides transportation expenses of s.2,000/-. In this way the O.P. in total contributed Rs.91,100/- towards the weigh bridge cost. All the time the Complainant expressed his inability and assured the O.P. to arrange the said iron plate soon. When the process of work for installation of weigh bring was going on depending upon supply of 10 mm iron plate, the Complainant without any basis and reason served Pleader’s Notice suppressing the progress of work for installation of weigh bridge. As the health of the father of the Complainant was in a critical condtion, he could reply the said Pleader Notice and on the next month the Complainant filed the present case and in the next month the father of the O.P. expired. As such, the O.P. has not caused any negligence or harassment to the Complainant. As the O.P. has already contributed Rs.91,100/-, he may be allowed to install the weigh bridge by the supply of 10 mm iron plate by the Complainant and if the Complainant does not want to install the weigh bridge by the O.P,  he is ready to refund the amount by deducting Rs.91,000/- from the advance amount. The O.P. in his additional written version filed on 15.09.2014 stated that the present complaint is barred by jurisdiction as the contract was executed by O.P. in presence of Complainant at Babe Weighing System Pvt.Ltd., Cuttack and letter dt.29.03.2014 was executed by O.P. at Cuttack. Hence, the O.P. prayed for dismissal of the complaint.  

            We have heard the Ld.Counsels appearing on both sides and perused the documents available on record. While filing written version on 19.08.2014, the O.P. had not craved the leave of the Forum to file additional written version before hearing of the case. However, when the O.P. has filed additional written version challenging maintainability of the present complaint on the ground of jurisdiction, the same needs to be decided at   the outset. Section 11(2) of the C.P.Act provides that a complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,—

(a)the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or

(c)the cause of action, wholly or in part, arises. 

It has been submitted by the Ld.Counsel for O.P. that Babe Weighing System Pvt. Ltd. (O.P.) resides at Cuttack and the contract was executed by O.P. in presence of Complainant at Cuttack. So the present complaint is not maintainable before this Forum as it is barred by jurisdiction. On perusal of the record it is revealed that in para-15 of his written version has stated that “the O.P. is reputed Company for the installation of weigh bridge and install many more weigh bridge throughout Odisha…………..”. In the written version the O.P. has also stated that his Service Engineer has visited the spot more than 20 times for monitoring civil foundation and construction work. He has already spent Rs.45,000/- for the purpose of drawing, designing and engagement of engineer for civil construction work, Rs.44,100/- on 03.04.2014 towards cost of 7 pieces  of iron beam and Rs.2000/- towards transportation charges. Further, licence No.Ctc-M-28/2012 was granted to O.P. by the Controller of Legal Metrology to manufacture, weights, measures, weighing or measuring instruments throughout the State of Odisha. On the forgoing discussion, we are convinced that the present complaint is maintainable before this Forum as the O.P. carries on business at Nilok within Bhadrak, cause of action has partly arisen within the district   at Bhadrak when the he has started construction work of weigh bridge at Nilok within Bhadrak by deputing his Engineer and  spent around Rs.91,100/- for installation of weigh bridge.

                        On perusal of purchase order dt.18.11.2013, we found that the Complainant had placed  order with O.P. for supply and installation of Electronic Truck Scale, Model No.BWS-WS, Platform size-7 m x 3 m, capacity 50 Ton  at a total cost of Rs.3,25,000/- and the  same was executed at Nilok, Bhadrak  by both parties  with certain terms & conditions i.e. penalty clause for any delay in delivery should be clearly highlighted, in case of any delay in taking the delivery will be intimated to BABE atleast 4 weeks in advance from the accepted delivery date and 50% advance & balance against proforma invoice before dispatch. Accordingly, the Complainant has already paid advance of Rs.2,73,000/- to O.P.  exceeding 50% advance as stipulated in the purchase order.  The date of dispatch of material was within one month from 18.11.2013. Moreover, It has been admitted by O.P. in his letter dt.29.03.2014 sent to Complainant that he has received Rs.2,73,000/- from the Complainant towards supply of materials.  In the said letter it has been stated by O.P. that the customer is ready to supply 10 mm plate and the balance payment will be adjusted from the same. Further, the O.P. has also stated in the said letter that in case of non-delivery of material by 9th April,2014, he will pay back/settle all financial issues within 7 days from the date  i.e. 16th April,2014. The O.P. has taken plea that delay in delivery of material was occasioned as his father fell seriously ill and subsequently died on 23.06.2014. In support of his case the O.P. has filed death certificate of his father issued on 10.07.2014 by Registrar, Births & Deaths, Cuttack Municipal Corporation. The O.P. has also taken another plea that the Complainant failed to supply 10 mm iron plate as assured by him for which delay was occasion in supply of material and installation of the same. We have sympathy over the sad demise of the father of the O.P. but that does not mean the O.P. will not supply the material for years together as against scheduled time of one month. Further, if the Complainant failed to supply 10 mm plate as assured by him, the same could be procured by O.P. like procurement of 7 pcs. of iron beam by him. During course of hearing the Complainant submitted that he has already installed the weigh bridge by another agency as the O.P. failed to supply & install the same within a reasonable period. As such, it is found that non-supply of material by the O.P as per purchase order dt.18.11.2013 amounts to deficiency in service on the part of O.P. Moreover, the Complainant must have undergone serious mental agony and put to financial loss due to non-supply of material after receipt of huge advances for which the O.P. is liable to compensate the same.   Accordingly, it is ordered:

                                                    O R D E R

                        In the result, the complaint is allowed on contest against O.P. The O.P. is directed to refund Rs.2,73,000/- to the Complainant with interest @ 9% per annum from the date of receipt of  total  advance w.e.f. from 17.12.2013  within  a  period of 30 days of receipt of this order. The O.P. is also directed to pay litigation cost of Rs.2,000/- to the Complainant within the aforesaid period of 30 days. Further, the O.P.is directed to take back 7 pieces of iron beam supplied by him from the weigh bridge site at his own cost.