District Consumer Disputes Redressal Forum
Dakshin Dinajpur, W. Bengal
(Old Sub-Jail Municipal Market Complex, 2nd Floor, Balurghat Dakshin Dinajpur Pin - 733101)
Telefax: (03522)-270013
Present
Shri Sambhunath Chatterjee - President
Miss. Swapna Saha - Member
Shri S. Ganguli - Member
Consumer Complaint No. 43/2014
Sri Uttam Datta,
S/o Late Suresh Chandra Datta
C/o Anwesha Eye Clinic High Road
Chhandaneer Ward No. 13, C.R. Polly,
P.O. & P.S.: Gangarampur,
Dist. Dakshin Dinajpur – 733124 ………Complainant
V-E-R-S-U-S
Mojaffar Rahaman Mondal,
S/o Motiar Rahaman Mondal,
C/o Abir Hardware, Hospital More, Kaldighi
Resi.- Puran Para Dhaldighi,
P.O. & P.S. Gangarampur.
Dist. Dakshin Dinajpur- 733124 ……………Opposite Party
For complainant ……………… - In person
For OP …………… - Shri Sushovan Chatterjee, Ld. Adv. &
- Shri Siddhartha De, Ld. Adv
Date of Filing : 31.10.2014
Date of Disposal : 09.07.2015
Contd…P/2
Judgment & Order dt. 09.07.2015
The case of complainant in brief is that the OP is a retail seller and supplier of hardware goods. The complainant files this case on the ground of deficiency in service and it is also contented by the complainant that he purchased building materials from the OP since some defects were found in the goods supplied from the OP and it was brought to the notice of OP and he issued two cheques of Rs.1 lakh each in favour of the complainant. Those cheques were presented to the bank and cheques were returned with the endorsement that the OP had no sufficient fund in the said account. After getting such information from the bank whenever a notice was issued to the OP he contacted the complainant and requested him to receive another cheque worth of Rs.2 lakh and the OP also received Rs.2 lakh in cash as an advance part payment to supply building materials. An agreement was entered into between the parties and the OP agreed to pay the balance amount within the three months from the date of said agreement.
It was further contented by the complainant that OP did not honour the said agreement and the cheques issued by him were also produced before the bank and the cheques were dishonoured by the bank due to insufficiency of fund. The complainant filed documents relating to the building materials purchased by the complainant as well as various agreements including undertaking given by the OP to pay the entire amount due to the complainant. It was averred by the complainant that the OP refused to pay the amount due to the complainant for which the complainant filed this case praying for realization of the amount of Rs.4 lakhs plus the interest accrued thereon.
The OP contested the case by filing written objection and denied all the material allegations of the complaint. The OP denied that he is not doing any business of hardware goods including stone chips, bricks etc.
Contd…P/3
at Gangarampur. The OP stated that he never received any amount from the complainant and the OP had never any business transaction with the complainant. It was specifically stated by the OP that the petitioner is a money lender and during the money lending business transaction between the parties the OP always used to pay him @ 3% interest per month. The OP admitted that he wants to pay Rs. 1 lakh to the complainant. The OP also made various allegations against the complainant regarding some of the cases pending between the complainant and the other persons of locality to fortify the claim of the OP that the complainant was in the habit of taking post dated cheques and he also in habit of filing cases under section 138 NI Act.
On the basis of the pleadings of the respective parties the points are to be determined :-
- Whether the complainant is a consumer or not as defined u/s 2 (d) of the Consumer Protection Act, 1986?
- Whether the case is maintainable under the provision of CP Act, or not?
- Whether there is any deficiency in service on the part of OP or not?
- Whether the complainant is entitled to get any relief or reliefs as prayed for?
DECISION WITH REASONS
In order to avoid repetition of facts all points are taken up together.
It is the case of complainant that in order to make some construction work he approached the OP to supply the building materials who used to run a business of supplying of building materials at the relevant point of time. The complainant emphatically stated that he after the payment of Rs.1 lakh some goods were supplied and since some goods including cement were of inferior quality and it was brought to the notice of the OP who agreed to return the money taken from the
Contd…P/4
complainant and he agreed to return money Rs. 2 lakhs and a cheque of Rs. 1 laksh was issued which was placed before the Bank wherein the complainant used to maintain the account and it was informed to the complainant by the bank that the cheque could not be cleared / honoured because of deficiency of fund. The said fact was brought to the notice of OP and the OP entered into an agreement to supply the goods to the complainant and the complainant also paid amount of Rs. 2 lakh as an advance part payment out of the total agreed amount of articles to be supplied by the OP. But the OP did not supply the articles nor he returned the money resulting in total financial loss sustained by the complainant to the tune of Rs. 4 lakhs. The complainant in order to prove the said transaction filed several documents including the bills, undertaking given by OP to pay Rs. 1 lakh each, cheques showing those documents were dishonoured by the bank and the OP also executed documents mortgaging his property in favour of the complainant on his failure to pay the amount due to the complainant.
Though, it was argued by Ld. Lawyer of the OP that the complainant is a money lender but no such convincing materials could be produced by the OP to substantiate his claim. Moreover, from the written objection filed by the OP it appears that OP agreed to pay Rs. 1 lakh to the complainant, the OP has claimed that there was no business transaction between the parties then why the OP agreed to pay the amount Rs.1 lakh, such contradictory stand point nullifies the argument advanced by the Ld. Lawyer for the OP. Before institution of the case notice was sent to OP but he did not give any reply which goes to show that the plea of doing the money lending business as urged by the OP is an afterthought affair. Though, it was vehemently argued by the Ld. Lawyer for the OP that in order to get rid of the delay committed by the complainant for filing a case u/s 138 NI Act, this plea has been taken by the OP that the complainant has filed this case falsely by the complainant against the OP, but from the materials on record it appears that the
Contd…P/5
complainant paid the amount to the OP for supplying goods and the OP also furnished several documents to substantiate the claim of the complainant therefore, it cannot be held that the case ought to have been filed u/s 138 NI Act, whenever catena of the documents filed by the complainant corroborates of the fact that there was business transaction between the parties and there was also deficiency in service which attracts the provisions as laid down in CP Act.
Considering all these aspects we hold that the case is maintainable and points as mentioned above are disposed of in favour of complainant.
Hence, it is
O R D E R E D
that the case is allowed on contest against the OP. The complainant will be entitled to get Rs. 4 lakhs from the OP. OP is directed to pay the said amount within the 60 days from this day failing which the OP will have to pay interest @ 8 %p.a. till the realization of the said amount.
The complainant is directed to deposit a sum of Rs. 15,000/- (Rupees Fifteen thousand) only in the “State Consumer Welfare Fund ” (A/c No. 0093000100310261) payable at P.N.B. Balurghat Branch, within 7 days from the date of receipt of this cheque.
Direction is also given to the OP to deposit the said cheque to this Forum within the abovementioned period.
Contd…P/6
Let plain copies of this order be furnished to the parties forthwith free of cost.
Dictated & corrected
………Sd/-….…….
(Sambhunath Chatterjee)
President
We concur,
……Sd/-..…… ………Sd/-……..
(S. Saha) (S. Ganguli)
Member Member
- Date when free copy was issued ……………………
- Date of application for certified copy ……………………
- Date when copy was made ready ……………………
- Date of delivery ……………………
FREE COPY [Reg. 18(6)]
- Mode of dispatch ……………………
- Date of dispatch ……………………
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