Presented by Miss R. Pattnayak, President .
The Complainant above named filed a complaint petition before this Forum against the Opposite Party alleging violation of contract.
The brief facts of the case is that, the Opposite Party namely Minaketan Meher in order to run a stone quarry at “Para Chowk”, Ps. Bijepur, Dist. Bargarh, requested to the Complainant to invest a sum of Rs. 60,000/-(Rupees sixty thousand)only and Rs. 25,000/-(Rupees twenty five thousand)only. As per his request, the Complainant paid an amount of Rs. 60,000/-(Rupees sixty thousand)only and also paid another amount of Rs. 25,000/-(Rupees twenty five thousand)only to the Opposite Party for deposit of the said money by the Opposite Party before the Hon'ble High Court, Orissa as security deposit in relating to his quarry and in token of acceptance both have executed an agreement on Dt.18/07/2010.
Further case of the Complainant is that, as per terms and conditions of the agreement, the Opposite Party has to repay Rs.30,000/-(Rupees thirty thousand)only before Dt.30/11/2010 and balance amount of Rs. 30,000/-(Rupees thirty thousand)only before Dt.31/03/2011, but Opposite Party failed to repay the above amount and violate the terms and conditions of the agreement.
Further, the Opposite Party also agreed to supply 600(six hundred) tractor trip of spal measuring 60,000(sixty thousand) CFT @ Rs. 425/-(Rupees four hundred twenty five)only to the Complainant before Dt.31/03/2011. The Opposite Party had supplied only the 40(forty) trips of spal but failed to supply the rest 560(five hundred sixty) spal as per the terms and conditions of the agreement.
Further more, it is alleged by the Complainant is that, he had given Rs. 25,000/-(Rupees twenty five thousand)only to the Opposite Party to deposit before the Hon'ble High Court, Orissa relating to this quarry and the Opposite Party should refund the same, but till date, the Opposite Party have not taken any step for refund of the same.
According to the Complainant, since he is an unemployed person and in order to meet his livelihood, contracted with the Opposite Party and invested a heavy amount for running of the business of the Opposite Party, after obtaining loan from State Bank of India, Commercial Branch, Bargarh.
Finding no other way out after several and repeated approach to the Opposite Party, the Complainant had caused service of Pleader's Notice on the Opposite Party on Dt.20/12/2011 which was received by the Opposite Party but the Opposite Party did not give any reply, otherwise remained silent. This act of the Opposite Party amounts to unfair trade Practice and also deficiency in service. The Opposite Party is violating the terms and conditions of the agreement executed between them.
On the other hand, the Complainant suffered heavy financial loss, mental tension and harassment due to the violation of the contract.
Being aggrieved, the present complaint was filed by the Complainant with a prayer to give direction to the Opposite Party to repay the principal amount of Rs. 60,000/-(Rupees sixty thousand)only and Rs. 25,000/-(Rupees twenty five thousand)only paid by the Complaiant towards security deposit along with interest @ 18%(eighteen percent) per annum till repayment and to pay compensation of Rs. 50,000/-(Rupees fifty thousand)only for harassment and violation of the contract and also to supply 560(five hundred sixty) trips of spal @ Rs.450/-(Rupees four hundred fifty)only per trip and Rs. 5,000/-(Rupees five thousand)only towards litigation expenses from Opposite Party.
In support of his case, the Complainant has filed the following documents:-
Deed of Agreement executed between Complainant and Opposite Party on Dt.18/07/2010.
Pleader Notice dated 20/12/2011 along with acknowledgment.
Notice was duly served on the Opposite Party. SR back from him and the case was posted for appearance and version by Opposite Party but nobody appeared on his behalf either in person or through his counsel. Hence, on dated 19/12/2012, the Opposite Party was set ex-parte and the case was posted for pronouncement of ex-parte order.
We perused and gone through the deed of agreement executed between Complainant and Opposite Party on Dt.18/07/2010, where it it clearly mentioned about the terms and conditions of the agreement and it is also mentioned there in that in case of violation of the terms and conditions, the Opposite Party shall be liable to pay the total amount with interest.
The above matter arose out of the breach of contract. It is clear from the averment contained in the complaint that there was an agreement between the parties. The Opposite Party and Complainant executed a deed of agreement as agreed upon by them. So breach of conditions of agreement is definitely a deficiency in service.
Going through the proceedings and on perusal of documents available on record, the Forum found that, the Opposite Party has malafide intention to grab away the money invested by the Complainant and has completely disobeyed the order of this Forum and stand defaulted in attending either in person or through his counsel which proves his willful disobedience to Court's order. Even after the Complainant invested a large amount honestly, the Opposite Party has denied to give him which clearly amounts to fraud and cheating to the Complainant. Such conduct of Opposite Party would clearly amounts to unfair trade practice. The totality of the circumstances brought in the record warrant of conclusion that the Opposite Party is fully responsible for not refunding the invested amount as per the terms and condition of agreement. Failure on the part of the Opposite Party to refund the invested amount and also failure in fulfilling their contractual obligation resulted in rendering the service defectively within the meaning of Section 2(1)(g) of Consumer Protection Act. A breach of contract in it self may result in deficiency in service.
It is also seen that even after receiving of the Pleader's Notice the Opposite Party have not replied, which clearly shows that the Opposite Party not cared to the Complainant although has taken a heavy amount from the Complainant.
The Opposite Party was also not contested in this case and has also not filed his version and also failed to adduce any evidence before the Forum which clearly shows that they are willfully disobeying the orders of the Court.
Further in relation to the next amount of Rs. 25,000/-(Rupees twenty five thousand)only payed by the Complainant is not proved as no such giving of Rs. 25,000/-(Rupees twenty five thousand)only is there in the “Agreement” filed but the “Agreement” shows that Ist party (present Opposite Party) has deposited a sum of Rs. 25,000/-(Rupees twenty five thousand)only on the High Court for said reasons.
On the whole, it is well understood that, the Complainant invest the amount with some hope and expectation that he will get return back the actual profit for his investment with Opposite Party,but which is not full filled and the Complainant suffered much from this transaction.
On account of such deficiency in service as arising out of breach of contract the Complainant suffered loss and damage. Having regard to the fact that, the Opposite Party has committed a breach of its agreement with the Complainant. So the Opposite Party stand for adopting unfair trade practice and deficiency in service.
Hence it is ordered:-
- O R D E R -
The Opposite Party is fully liable for repayment of the invested amount i.e. Rs. 60,000/-(Rupees sixty thousand)only along with interest @ 9%(nine percent) per annum from the date of filing of present complaint i.e Dt.23/02/2012 to till realisation. The Opposite Party also liable to supply 560(five hundred sixty) trips spal @ Rs.425 /-(Rupees four hundred twenty five) per trip as per the Agreement between the Parties. Besides the principal amount and interest, the Opposite Party is also liable to pay Rs. 5,000/-(Rupees five thousand)only to the Complainant towards harassment and violation of contract and for litigation expenses within 30(thirty) days from the date of receipt of this Order, failing which, the awarded amount shall carry 18%(eighteen percent) interest per annum till the date of realization of amount.
The case is allowed accordingly and disposed off.
Typed to my dictation
and corrected by me.
Sd/- Sd/-
I agree, I agree,
(Miss Rajlaxmi Pattnayak) ( Smt Anjali Behera)
P r e s i d e n t. M e m b e r.
