:    J U D G M E N T    :

This is a case under Section 12 of the Consumer Protection Act, 1986 filed by Abul Kasem Mondal against four opposite parties viz, Mr. Monoruddin Mondol – OP 1, Mr. Meherul Shaikh – OP 2, Mr. Kutubuddin – OP 3, Mr. Abdul Rashid Mondol – OP 4, all are partners of M/S Mondol Brick Field situated at Tehatta Baliura under Dist. Nadia.

The facts of the case to put in a nutshell, are as below:-

Opposite parties submitted a proposal to the complainant to sell bricks from Mondol Brick Field@ Rs. 5,000/- per 1000 bricks.  Being agreed the complainant paid Rs. 1,25,000/- on 11.03.13, Rs. 1,00,000/- on 25.03.13 and Rs. 40,000/- on 04.04.13 for supplying of 53,000/- bricks within 11.03.14 to 04.04.14.   As the opposite parties did not keep their promise to supply bricks within stipulated period mentioned above the complainant contacted with them and requested them to supply bricks but in vain.  On 11.06.14 a legal notice was sent to the OPs.  Thus, the complainant files this present case praying for Rs. 2,65,000/- plus interest, compensation and cost of the suit.

OP No. No. 1 & 2 contested this case by filing a written version denying all the allegations made in the complaint. 

The sum and substance of the written version is stated below:-

The complaint is not maintainable.  It is barred by law of limitation.  The petition is barred by principles of waiver, estoppels and acquiescence.  As per provision of Partnership Act, this petition is not maintainable.  OP 1 & 2 admitted that the bricks were already supplied to the complainant in the following manners.

So they have no deficiency in service and they prayed for rejection of the petition in limini.

OP No. 3 and 4 contested the case by filing separate written versions challenging all the contentions of the complaint.  He admitted that on 15.10.10 an agreement was executed among OP 1 to OP 4 and they prepared a firm under name and style Mondal Brick Field.  But OP No. 3 and OP No. 4 retired from the firm on 22.05.13 and they cut off all the connection from the Brick Field.    The amount was deposited by the complainant never taken by them.  So they have no liability or deficiency in service.  So the case should be dismissed against them. 

POINTS FOR DECISION

1. Point No. 1:   Is the complainant a consumer?
2. Point No. 2:   Have the OPs proved delivery of bricks to the complainant?
3. Point No. 3:   What relief the complainant is entitled to get?

REASOND DECISIONS

            For the purpose of brevity and convenience all the points are taken up together for discussion.

            It has been argued by the Ld. Advocate for the opposite parties No. 1 & 2 that in view of Section 32 of the Indian Partnership Act, the OP No. 3 & 4 are also liable to pay their share in the beginner’s liability arising out of partnership firm business.  When the names of OP No. 1 and 4 were expunged by order dtd. 28.11.14 the matter was considered and OP No. 3 & 4 allowed to be expunged vide order No 7 in the order-sheet.  The document dtd.  21.05.13 regarding retirement of the partners was also considered at the time of passing order - 7, dtd.  28.11.14.  It has been argued further with reference to Section 69 of the Partnership Act that the relief lies before the civil court and not before this Forum when Ld. Advocate for the OP 1 & 2 has further argued that no suit to enforce could be filed when the partnership firm was not registered. 

            It has been further argued that the signatories in the receipts of brick transactions / monetary transactions were Sattar Mondal, Kutubuddin Mandol, Manirul Mondal and Meherul Sk (the total amount paid to M/S Mondol Brick Field was 2,65,000/- vide Para- 11 of the plaint).  In the prayer portion the amount of Rs. 2,65,000/- was fixed for supply of 53,000/- bricks.

            Now the question is whether OP could establish the supply / delivery of bricks.  From the evidence, interrogatories and reply and also from the documents on record, we find that the opposite parties have failed to establish the delivery of 53,000/- bricks.

            It has been argued that delivery of the bricks and booking of the bricks relates to commercial purpose and naturally the transaction would not come under Consumer Protection Act.

            We have meticulously gone through petition of complaint and the written statement.  At ‘para—2’ the complaint it has been specifically mentioned that he (complainant) determined to construct of residential house for his own.  This point was not challenged in the written statement successfully.    

            In the written statement it has been argued that the bricks were agreed to be purchased for the purpose of reselling.  The burden of proof of resale lies upon the OPs but that burden was not discharged by oral and documentary evidence.  Hence, the point of commercial purpose raised by Ld. Advocate for the OPs does not hold much water.  Thus, we are inclined to believe that the complainant is a consumer. 

            The pleadings of the documents also go to show that the complainant was a consumer of Mondal Brick Field.

            Now the question is what relief the complainant is entitled to get.

            We have perused the deed of retirement made on 22.05.13 along with the receipt dtd.  21.05.13 and we are also convinced that on the basis of evidences and pleadings that OP No. 1 & 2 are liable to pay Rs. 2,65,000/- along with 6% interest thereon from 06.01.2014 till the date of realization. 

Hence,

Ordered,

That, the case CC/2014/112 be and the same is allowed on contest.  The OP No. 1 and OP No. 2 are jointly and severally directed to pay Rs. 2,65,000/- along with 6% interest thereon from 06.01.14 till the date of realization.  The OP 1 & 2 are also directed to pay a compensation of Rs. 2000/- and Rs. 1000/- as litigation cost within a period of one month since this date of passing the judgement, in default, the decretal amount shall carry an interest @ 9% per annum since this date of realization of the full amount.

Let a copy of this judgment be delivered to the parties free of cost.