Date of filing : 02-01-2013
Date of order : 29-12-2014
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.01/2013
Dated this, the 29th day of December 2014
PRESENT:
SMT.P.RAMADEVI : PRESIDENT
SMT.K.G.BEENA : MEMBER
SMT.SHIBA.M.SAMUEL : MEMBER
Mohammed Ashraf, S/o.Late Abdulla Haji, : Complainant
Rasheed Manzil, Near GHS, Almpady,
Po.Alampady, Kasaragod Taluk & Dist.
(Adv.M.Fazal, Kasaragod)
Mohandas.K, Proprietor, Coolex Cooling Systems, : Opposite party
Battambara, Near Krishna Talkies,
Madhur Road, Kasaragod. 671121.
(Adv.K.Abdul Nasir, Kasaragod)
O R D E R
SMT.K.G.BEENA, MEMBER
Complainant is a gulf returnee who decided to start candy manufacturing unit under the name and style in Dubai Ice creams. To avail finance assistance complainant had to struggle for more than 1 ½ years and finally the loan of Rs.5,00,000/- was granted at the rate of interest of 12% per annum under PMEGP scheme through Andhra Bank Kasaragod Branch. The complainant approached opposite party at his shop for the purchase of a candy machine of good quality, on that date itself complainant was given an estimate of Rs.1,35,150/-by opposite party. The opposite party promised the complainant that the product i.e. Blue star 4 No.Candy machine (quantity No.1) will be delivered within 4 or 5 days from the date of order. Believing the representations made by opposite party the complainant issued a pay order of Rs.1,35,150/- on 13-03-2012 of Andhra Bank, Kasaragod branch, being the full payment of the machine. After 5 days when the complainant contacted opposite party he requested the complainant to wait for a week for the delivery of the machine. Later after several times complainant contacted opposite party but opposite party had postponed the delivery of the candy machine by stating different reasons. Due to the illegal trade practice and latches on the part of opposite party complainant could not start the production and business in time and had already sustained great loss. On 20-09-2011 opposite party gave an undertaking in writing but he could not keep the word. Complainant was constrained to send a registered notice on 1-11-2011 calling upon to opposite party to deliver the blue star 4 candy machine within 7 days with compensation. Eventhough opposite party received the notice be neither send any reply nor contacted the complainant. Since the opposite party did not deliver the product in time to the complainant he was denied subsidy as well as monitory benefit under PMEGP scheme which also caused huge monitory loss to the complainant. The complainant was struggling to pay interest in the said loan account even after spending such a huge amount for the business. Hence the complainant for necessary redressal.
2. Adv.K.Abdul Nazar filed vakalth and version for opposite party. In the version opposite party denied that the complainant had given pay order and opposite party issued for a cheque for Rs.30,000/- as return of advance amount. According to the version complainant placed an order for 4 mould candy machine and paid the amount for the same by way of pay order. The candy machine was ready for delivery within the agreed time. But the complainant asked to alter the machine as 2 mould candy machine. The opposite party agreed to alter the machine within one week. On condition that complainant pay Rs.20,000/- as alteration charges. The machine was altered in such a way that it could be covered to 4 mould candy machine if so, required in future as required by the complainant. But on completion of alteration the complainant stated that he dropped the project and not intended to take delivery of the machine and requested to return the consideration already received. The opposite party was not ready to take back the machine since it was made after the description of the complainant. Then the complainant requested the opposite party to sell the machine to any of the prospective purchasers. The opposite party agreed for the same but he could not sell the same for the price demanded by the complainant. Later on one officer from Alahabad bank contacted the opposite party and enquired about the transactions between the complainant and opposite party. Opposite party briefed the fact then he stated that the machine is financed by them and it cannot be sold without their consent and he wants the opposite party that if the machine is sold the bank will file criminal case against him. Accordingly the opposite asked the complainant take delivery of the candy machine after paying alteration charges of Rs.20,000/-. But the complainant did not take delivery of the vehicle till this date. The machine is still with the opposite party and complainant can take delivery at any time after paying the alteration charge. Opposite party further submits that he later understood that the complainant never had intention to start business. His intention was to availed loan with subsidy and sell the goods purchased by using the fund. When the bank demanded the repayment he filed a case against opposite party so as to show them an excuse for non payment. The complainant is abusing the provision of CP Act. Hence the complainant may be dismissed with exemplary costs.
3. Complainant filed proof affidavit Exts A1 to A8 marked. Heard. The case of the complainant is that he ordered for a blue star 4 candy machine quantity No.1 to opposite party. Opposite party offered him to deliver the product within 4 or 5 days and accepted the pay order of Rs.1,35,150/- of Andhra Bank, Kasaragod branch. Being the full payment of the product thereafter opposite party evaded from delivering the product by stating different reasons. Ext. A1 is the legal notice sent by the complainant to opposite party demanding either the delivery of the product or the money. Ext. A2 is the postal receipt. Ext.A3 is the acknowledgement card dt.9-11-2012. Ext. A4 is the quotation dt. 28-02-2012. Ext. A5 is the pay order letter dt. 13-03-2012 containing the signature of opposite party original receipt dt.25-03-2012 issued by opposite party is marked as Ext.A7 not issued by opposite party promising delivery before the Forum is Ext.A8. While perusing the documents and affidavit of the complainant we are of the view that complainant’s case tallies with the documents and opposite party failed to disprove the same. The explanation given for the delay in delivering the machine in the version is a cooked up story and opposite party did not produced any documents to prove the same. The prayer of the complainant in the affidavit is to direct the opposite party to deliver blue star 4 No candy machine quantity No.1 or the amount of Rs.1,35,150/- at the rate of 12% per annum from the date of receipt of pay order to the complainant. This shows that complainant is affirmed in this case. Exts A4 to Ext A6 proves that Rs.1,35,150/- has been paid by the complainant to opposite party for the full payment of purchase of candy machine. Ext.A7 is the receipt issued by opposite party to the complainant on 25-03-2012. Opposite party after receiving such a huge amount failed to deliver the machine since the complainant was constrained to issue Ext.A1 lawyer notice. Due to the unfair trade practice and deficiency in service on the part of opposite party the complainant sustained huge monetary loss and mental agony. Opposite party is bound to compensate the same.
Hence the complaint is allowed directing opposite party to refund Rs.1,35,150/- with 12% interest from 13-03-2012 with a cost of Rs.5000/- within 30 days from the date of receipt of copy of the order.
MEMBER MEMBER PRESIDENT
Exts.
A1.01-11-2012 Copy of lawyer notice.
A2. Postal receipt.
A3. Postal acknowledgement card
A4. Quotation
A5. Copy of letter issued by Andhra Bank
A6. Copy of Pay order for an amount of Rs.1,35,150/-
A7. 25-3-12 Receipt for an amount of Rs. 1,35,150/-
A8.10-09-12 Estimate.
MEMBER MEMBER PRESIDENT
Pj/
