Orissa

Rayagada

CC/381/2016

Mr. Girish Kumar PV - Complainant(s)

Versus

Mr. Sasibhusan Prop Star Indusrtial - Opp.Party(s)

Self

01 Mar 2019

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 381/ 2016.                                                     Date.  1.   03. 2019.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                         President.

Sri  Gadadhara  Sahu,                                                   Member.

Smt. Padmalaya  Mishra,                                              Member.

 

Mr.Girish Kumar,  S/P: P.V.Ramana Rao, Managing Partner, M/S. Dry & Fry cashew Industry LIP,  Tumbiguda, J.K.Road,  Po/Dist.Rayagada,State:  Odisha.                                                                                 …….Complainant

Vrs.

1.Mr. Sashibhusan Das, Prop. Star Industries, AT: 89 RBC Road, Po:Kolkata(WB)    

2.The Branch Manager, Vijaya Bank, Gorabazar Branch, At: Kolkata, Po:Kolkata(WB).

3.The General Manager, DIC., Rayagada(Odisha).

4.The Branch Manager, Andhra Bank, Kasturinagar Branch, Rayagada(Odisha).

5.The Chief General Manager, Andhra Bank, Hyderabad(AP).                                                                                                                                                                                                                                                                                     .…..Opp.Parties.

For the Complainant:-Self.

For the O.P. No.1:-Sri  RajaLalit Mohan, &Smt. Jayasri Padhi, Advocates.

For the O.P. No. 2 &3,5:- Set exparte.

For the O,P. No.4  :-Sri   K. Ravindra Kumar, Advocate,Rayagada.

 

JUDGEMENT

            The  factual matrix of the case is that  the complainant beingan educated unemployed had opted to set up a cashew industry under partnership, with finance from the O.P.No. 4 sponsored by the O.P.No.3.The O.P.3 and O.P.4 had sponsored the O.P.1 being the supplier of the machineries for the project and on their recommendations, the Complainant agreed to purchase the machineries from the O.P.1. The O.P.1 produced one quotation on dt. 21.02.2014 for 10 nos of machineries as per the quotation amounting to Rs.17,86,020/-(inclusive of 2% C.S.T. and cost of Transportation to destination).But for the dillydallying tactics of the O.P.4 completing the documentation for the loan sanction, which was approved only in November,2015 and the bank required a fresh quotation for disbursement of the loan. Hence, on the advice the O.P. 1 produced again a fresh quotation on dt. 18.09.2015 for the same items as in previous  quotation but with an escalated price of Rs.18,75,321/- i.e. excess by Rs.89,301/-. The complainant protested against the new price and on intervention of the O.P.4 and O.P.3, the quotation was made stand thus with abeyance to the escalated price. The condition of the quotation was that, 40% of the price quoted should be paid in advance to confirm the order and the machineries should be ready within maximum of 8 weeks,hence receipt of the advance, and within the 8 weeks time of the advance, upon the machineries made ready for despatch, the O.P.1 shall submit tax invoice,so that, the rest of 60% of the cost of machineries should be released by the O.P.4. Agreeing on the terms the O.P.4 released an amount of Rs. 7,14,408/- i.e. 40% of the quoted price on dt.20.11.2015 ,but as the machineries could not be readied by 8 weeks time, ie. On or before 15.01.2016.Without delivering the machineries or producing tax invoice, the O.P.1 demanded more money on the plea that, unless he is paid more Rs.2,46,024/- he would not be able to make the machineries ready for despatch.The Complainant has already been credited to his loan account the advance of Rs. 7,14,408/- since couple of months and is charged with interest thereof, where as the O.P.1 is not supplying the machineries and to the addendum, the O.,P.4 and O.P.3 were acting hand in gloves with the O.P.1, hence finding no way he adviced the O.P.4 to disburse an amount of Rs. 2,46,024/- on dt. 06.04.2016.Only then the O.P.1 produced tax invoice No. 11/16-17 on dt. 25.05.2016. The complainant submits that, the O.P.4 ban should have disburse the rest 60% as per the quotation less the amount of Rs.2,46,024/- only on receipt of the Tax Invoice from O.P.1 but, suspiciously the bank, for the best reason known to him, had already disbursed Rs.12,00,000/- to the O.P.1 on dt. 16.05.2016, prejudicial to the interest of the Complainant and banking guidelines.However, the Complainant produced way bill for the whole machineries, but the disputing to the payments, the O.P.1 stressed to send way bill only for item No. 1 to No. 5 of the machineries in the quotation and again the O.P.1 under his tax invoice No. 27/16-17 sent only 17.07.2016 the items but But the O.P. has not supplied the  Hand operated cashew cutting machine of 30 nos priced at 1,44,000/- (Item No. 06 in the quotation) , 15 nos of cutting tables (Item No. 7) RCN Grader ( item No. 09) and gas filling machine (item No.10)  all costing Rs.4,64,000/- and cst of 2% on the amount rs.9,280/-, amounting to Rs.4,73,280/-, Here in for 10 nos of items in the quotation, he sent an automatic peeling machine which was quoted  at Rs.6,15,000/- with no approval of the Complainant  capriciously sent  the machine marking with invoiced price of 7,07,319/- in excess of Rs.92,259/-. Till then the O.P.1 in connivance with the O.P.3 and O.P.4 had already succeeded to get disbursed with an amount of Rs.21,60,832/- which is in excess of Rs.3,74,812/-, where as the Complainant has not yet received items No. 6 to 11 in the quotation amounting to Rs.10,10,000/- exclusive of CST and Transportation cost .  Hence alleging of deficiency in service on the part of the O.P.s the Complainant has filed this complaint praying for direction to be O.P.1 to supply the items not supplied as per quotation without claiming any further amount, till finalization of the dispute, interalia others.

02.       The Complainant has filed the copies of quotations and other documents .Considered.

03.       The Forum considering the Complaint, the documents in support of it and having heard from the Complainant at length, found there is prima facie deficiency in service and  admitted the Complaint and notice u/s 13(1)(a) of the Act 68 of 1986 adjourning the case to Dt.10.1.2016  for filing of counter by O.P.s.           

Upon  Notice, the O.Ps 1 turned up to represent his case only on dt.01.06.2017 .i.e. after nearly 7 months, hence the notice and filed written version in which  they refuting allegation made against them.  The O.Ps 1 taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.P.  Hence the O.Ps 1  prays the forum to dismiss the case against  them  to meet the ends of justice.

The O.P.No. 4 entered its appearance on dt.  10.1.2017        to contend the allegations in the complaint not to be true interalia others which are discussed in the succeeding paras.

However,the O.P.2, 3 and 5 abstained themselves from countering the Complaint nor appeared before the forum to participate in the hearing, hence they were set exparte, and the case was heard in the absence, as per provisions of the Act.

Perused the record, documents, written version  filed by the parties. 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                               

                                                             FINDINGS.

            Undisputedly the complainant had availed the loan  from the O.P. No.4(Bank)  for establishment of Cashew Industry at  Rengalpadu village  of Kolnara  a sum of  Rs.21,60,832/-. Further there is no dispute the O.P. No.4(Bank) had sanctioned loan to the complainant towards   establishment of Cashew Industry after all the formalities securitized and after obtaining approval  to establish   the small industry by the O.P. No.3 (DIC,Rayagada). It is also not disputed that, the O.P.had quoted 10 nos of machineries for the project to the tune of Rs.17,86,020/- against which the O.P. No.4(Bank) has credited  Rs.7,14,408/- on Dt.20.11.2015, Rs.2,46,024/-, on Dt.6.4.2016 and Rs.12,00,000/- on Dt.16.5.2016 , all in total being Rs.21,60,832/- to the account  of the O.P. No.1  which is operated by him with the O.P. No.2(Bank). After  receipt of the above amount the O.P. No.1 made ready  for transportation of the machineries as per quotation.

            The main grievances of the complainant is that the O.P. No.1 deviated the terms of agreement and failed to supply the quoted machineries within 8 weeks of receipt of advance of 40% of the price of machineries as per quotation. The first advance was made on 20.11.2015  and the machineries as per conditions in the condition the O.P.1 should have submitted it’s Tax Invoice within 8 weeks, i.e. on or before date 15.01.2015. When he has frustrated the contract , the breach being material, and serious given rise to a cause of action in the forum under the provisions of the act.

 The further grievance of the Complainant is that, the bank O.P.No.4 deliberately and acting hand in gloves with the O.P.1 , without the sanction of the Complainant, released an amount of Rs. 21,60,832/- on different dates, and even verifying the tax invoice, but in excess of  the quoted price of Rs. 17,86,020/- .The amount of Rs.12,00,000/- released in favor of the O.P.1 dt. 16.05.2016 , without acquiescence of the Complainant, and O.P.1 has submitted the Tax Invoice only on dt. 17.07.2016, which clearly depicts the irregularities, malfeasance and arbitrary ness on the part of the O.P.4 bank, detrimental to the interest of the Complainant.

The C omplainant further submits that, after receipt  of the above amount the materials  supplied  by the O.Ps being sub-standard and not as per the quality  and standard as quoted in the quotation so  far  the materials requires  to  be returned the  price paid by the complainant should  be   refunded to the complainant, But the O.P. No.1 till now taking  no action to refund  the amount  paid  nor supplied  defect free machineries  by taking  away  the  substandard  materials  and demanded  exonerated  charges.   Hence the complainant had issued legal notice through its counsel on Dt. 1.11.2016 and it was duly served on the O.p. No.1 for supply of balance machineries for smooth running of Cashew Industry(copies of the  legal notice is in the file  which is marked as Annexure-I). In turn  the O.P. No.1 had sent reply through  its counsel on DT. 18.11.2016 to the  complainant(copies of the  legal notice of the O.P. No.1 is in the file which is marked as Annexure-2).  Aggrieved with the above reply  Dt. 18.11.2016 of the O.P. No.1 the complainant has filed this C.C. case before the forum  against the O.Ps.

            The O.P ;No.1 in their written version contended  that the O.P. No.1 has given  an quotation Dtd.  21.2.2014 to the complainant regarding  machineries including  C.S.T against ‘C’  forms and excluding freight  charges etc. amount Rs.17,86,020/-.  Another  quotation has given on Dt.27.2.2014 to the complainant  in  respect of another machine for an amount of Rs.6,15,000/- including C.S.T.   against ‘C’ form and  excluding freight  charges etc.by the  O.P. No.1.  These two  quotations are valid  for 30 days. No payment  was made against the quotation till  19.11.2015. The O.P. No.1 has  given two quotations regarding above   machineries for rise of prices to the complainant on Dt.23.09.205 for an amount of Rs.21,01,353/- including  C.S.T. against ‘c’form and  excluding  freight  charges etc. and Rs.7,07,319/- including C.S.T against ‘C’ form and excluding  freight   charges et. The O.P. No.4 has released the amount as per quotation Dt. 23.9.2015   submitted by the complainant to his financer  bank  (O.P. No.4). The  O.P. No.4 has credited Rs. 7,14,408/- on Dt.20.11.2015, Rs. 2,46,024/- on Dt.6.4.2016, and Rs.12,00,000/- on Dt.1.6.2016 to the account of the O.P.  No.1 which  is operated by  him with the O.P. No.2.  After receipt of the above    amounts the O.P. No.1 has made ready the machineries as per quotation. The   O.P. No.1 has given tax invoice No. 11/16-17 Dtd.25.5.2016 for  an amount of Rs. 21,01,353/- to the complainant but the complainant has  not supplied way bill for delivery of machineries against  the bill.  Again   the O.P. No.1  has given tax invoice No. 12/16-17 Dtd. January, 2016 for an amount of Rs.7,07,319/- to the  complainant but the  complainant has not supplied way bill for delivery of peeling  machinery along with accessories.  As per request of complainant, the  O.P. No.1 has  supplied tax invoice No. 15/16-17 for an amount of  Rs.21,01,353/- on Dt. 13.7.2016 to the complainant      for issuing way bill, after  receipt of way bill  the machineries delivered by the O.Ps  to the complainant at his factory site but the complainant has not given entire freight charges to the vehicle but paid  Rs.10,000/- to the driver of the vehicle.  After receipt  of machineries, the complainant has not given any  complaint letter  or intimation to the O.P. No.1 regarding non receipt   of machineries as per tax invoice.  The machineries are passed through interstate gates  with verification.    As per request of complainant, the O.P. No.1  has again  supplied tax invoice No. 27/16-17 for an amount of Rs.7,07,319/- on Dt.9.9.2016 to the complainant for issuing way bill, after receipt of  way bill, the peeling  machine  along with  accessories delivered  to the  complainant by the O.P. No.1. The O.P. No.1 has demanded balance amount as  per tax invoice to the complainant  several times. The O.P. No.1 has delivered   all  machineries in good  faith  without getting entire amounts as per tax invoice  dues to the complainants request and agreed to pay balance amount immediately after delivery of peeling machine and accessories but the  complainant has not paid the balance amount, balance freight charges  Rs. 63,000/- to the O.P. No.1 till October,2016. The staff of the O.P. No.1 has gone to the complainants factory in the month of October, 2016 for trial of the machines, But they found that there is no three phase electric connection to the factory, so no trial  of machines done.  The O.P. No.1 further contended  that the complainant  has  not paid  cash Rs.2,40,248/- to him after receipt of  machineries as per the invoices  Res-IPSA-Loquiture   the same is provided  by the complainant. The complainant  has not supplied way bill after receipt of the invoice  No. 11/16-17 Dt. 25.5.2016. So the machineries as per quotation  Dt. 23.9.2015 are not delivered by the O.P.  No.1. The O.P. No.1 has delivered the machineries against tax in voice No. 15/16-17 Dtd. 13.7.2016 after receipt   of way bill from the complainant.  After  that the O.P. No.1 has delivered other machineries against tax invoice   No. 27/16-17 dd.9.9.2016 after receipt of the way bill from the complainant. The complainant has not given  any complaint  letter or any intimation to the O.P. No.1  regarding non  delivery of  machineries.  The machineries are   checked by  interstate check  gates  and delivered  to the complainant. The complainant has received Tax invoices from the O.P. No.1 regarding machineries but he has not complained  regarding price etc. to the O.P. No.1 till delivery.  After receipt of all  machineries  as per tax  invoice  the complainant is liable  to pay balance amount   of Rs.28,08,672/-  -  Rs. 21,60,432/-  =  Rs. 6,48,240/- towards machineries with includes 2% CST against  ‘C’ form and balance freight charges Rs.63,000/-  and 3%  CST on Rs.24,53,600/- cost of machineries  (for non supply of C form during financial year 2016-2017 by the complainant to the O.P. No.1 amount Rs. 73,608/- in total Rs. 7,84,848/- with  2%  interest per month from  October, 2016 till the actual date payment to the O.P. NO.1. The complainant has issued  the legal  notice  to the O.P. No.1 only to avoid the balance payment on Dt. 18.11.2016 through the advocate in that  notice  he has not   mentioned  any  thing  regarding payment of cash of Rs.2,40,248/- but in the complaint the amount is mentioned with malafide     intention to avoid the balance  payment to the O.P. No.1.  After receiving of machineries, as per quotations, the  complainant wants  automatic cutting machine   and machine and manual cutting  machines instead of hand operated  cutting machines and table, so the O.P. No.1 has give details  calculation regarding outstanding  amount  receivable  by him  in his notice reply  Dtd. 18.11.2016 .   Further the O.P. No.1 agreed   to  replace automatic cutting  machine and manual cutting machine to the complainant  after return  back of the  supplied hand cutting machine and table with payment of differential price  amount plus CST 5%  plus freight  charges from the complainant. But the complainant  did not  paid the differential  amount  and not  returned   the machinery . So the O.P.  No.1 have nothing to do.

Further  The learned counsel for the  O.P. No.1 vehemently argued in his  preliminary objection & in their written version that   the complainant had himself demanded a total sum of  more than Rs.20 lakhs  in his complaint, But District Forum have no pecuniary jurisdiction to adjudicate  & entertain the complaint having  the value  of goods  & services  more than 20 lakhs.  As per Section 11(1) of the C.P. Act,  the complaint should   have  been   filed before the  appropriate  forum having  jurisdiction but  not  at District Consumer  forum   as  this forum has no pecuniary jurisdiction to try this case.

Considering the point of preliminary objection, this forum is of view that, the O.P.1 has failed to file the preliminary objection at the threshold of the initiation of the proceeding i.e. on the first opportunity he got, but is filed on a very belated stage, after nearly 6 months of the first date of hearing.

Ordinarily preliminary objections to the maintainability of a consumer complaint on the ground of absence of jurisdiction, whether territorial or pecuniary should be raised by the respondent as early as possible, at the very first opportunity available, i.e. on the first date of hearing, but if any raised at the time of passing judgment can not be considered to the prejudicial to the interest of a genuine Complaint. Hence the objections to the pecuniary jurisdiction of the forum as raised by the O.P.1 dismissed in the limine.

However, the forum is not restricted to adjudicate the point of jurisdiction, at any stage, the fact brought to its notice. Undisputedly the value of machineries was quoted at price RS.17,86,020/- but actually payment for the machineries is paid amounting to Rs. 21,60,432/-  . The Complainant further claims a compensation of Rs.5,00,000/- more, hence the cost of litigation exceeds the pecuniary jurisdiction of the Forum.

But the Complainant, submits, that, his claim is not for the whole amount, he only prays for direction to the O.P.1 to supply items No. 6 to 11 in the quotation, which in whole costs only Rs.10,10,000/- and when it is added to Rs.5,00,000/- compensation, comes to Rs.15,10,000/- which is well within the jurisdiction of the forum.

The Complainant further, sought the leave of the forum to rectify the prayer part of the Complaint, “ or to refund the entire loan amount” to the words ‘the cost of the unsupplied machineries”, by invoking the provisions of sec 151 and order 6 rule 7 of CPC.

He further submits that, after the change, the meaning and the  nature of the complaint will not be changed and that,If the above amendment is not made, in that case the complainant can bear irreparable loss and by making amendment in the complaint, interest of the O.P. will not be affected.

In J. Samuel and Ors. V. Gattu Mahesh and Ors. 2012 AIR SCW 1035, Hon'ble Supreme Court has observed thus :-

"The primary aim of the court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the court so that the court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their plaints. The Court's discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties.”

                        “Only forum  can  ID quod  hostrum, est, Sine   facto  mostro   ad alium Transferi  non potest, possumus  quod de  Jure possumus”.

For better  appreciation  this forum  has relied catena of decisions   of the Hon’ble National Commission  which are  mentioned here:-

It is held and reported in C.PR.  2014(4) page  No. 701  the Hon’ble  National Commission, New  Delhi  where in observed  “ It is the duty of District Consumer Forum to examine the issue    on their won whether they had  requisite jurisdiction to deal with the matter”.

Again  it is held  and reported  in  CPR- 2010 (2) page  No.   127 the Hon’ble    National Commission  where in observed  “Case once again   raises the important question in regard to  pecuniary jurisdiction of various consumer Forum    constituted  under the Act to entertain the consumer complaints of different valuation.   Before we consider the facts  of the present case, it would be useful to take stock  of the settled legal position. The position is that  a plaintiff/petitioner/complainant has the right to value  his suit/complaint depending upon  the claims/reliefs he seek s in suit or consumer complaint, as also to value   the suit for the purpose of jurisdiction and payment of court fee etc.   This  right, however, is not an unfettered right and a complainant     is expected  to make claims which he thinks  to be  just and reasonable   on various counts but at the same time, he is not permitted  in law in make exorbitant and excessive   claims with the ulterior object of giving  pecuniary  jurisdiction   to a particular court or forum.  It is equally settled  that if a complainant grossly over values or under values his suit/complaint with the object of bringing it within the jurisdiction of a particular court,  the plaint can be directed  to be returned to the plaintiff for presentation before the appropriate court.  However, in case, the  valuation made by the complainant on the basis of  relief claimed nor imaginary but requires judicial   consideration, the court can not reject the relief at the outset without going into its merits of reducing the valuation a directing   the return  of the complaint for presentation before the appropriate  court. “ 

  Further in the case of Dushyant Kumar Gupta   Vrs. Topday Homes & Infrastructure Pvt. Ltd. In Consumer complaint No. 198 of 2015 on  Dt. 30.01.2017 passed order where in the Hon’ble National Commission observed in para-12 

“Now I am coming to the complaints  which do not come within the pecuniary jurisdiction of this commission. The question which arises for consideration as to what  course of action should  be   adopted in respect of these complaints which have been  pending with this commission for the last 1 ½ years. One course   can be to dismiss these  complaints with liberty to such  complainants to  institute fresh complaints before the concerned State Commission.   The aforesaid  course of action,  in my view, would  not be fair and reasonable, considerin that the complaints are pending for about 1 ½ years and at one point of time, this commission held  the view that the market value of the  flat as on the date of filing of the complaint could  be treated as the value of the service in such matters. In my view, the appropriate course of action in such  matters would be  to follow  the procedure prescribed Order-7 Rule- 10  A of the Code of Civil procedure.  Though the aforesaid provisions has   not been  expressly to this  commission by section 13(4) of the C.P. Act, 1986 the principle underlying the said provision can in appropriate cases, be adopted  by this commission, in order to protect the  interest of  the consumers, while  simultaneously  ensuring that no prejudice is caused to the service provider by adopting such a course of action.  The  O.P. in these  cases has filed its written  version on the merits  of the complaints.  It has also led  evidence on merits.  No prejudice  would be caused  to the O.P. if the complaints are returned  for being presented   before the concerned  State commission, with  a direction to the  State Commission to decide them  a fresh, taking into consideration, the pleadings, affidavits and the evidence including documentary evidence filed by the parties  before the commission provided an  opportunity  is given to the parties to lead evidence and if filed, such additional  evidence  is also considered  along with the evidence, which was filed before this  commission.  The aforesaid course of action besides ensuring a prompt and expeditious  disposal of the complaints   by a  competent  consumer forum  will also ensure that no prejudice is caused  to either  party in any manner.”

Judicils   Posterioribus  Fidesest adhibenda.   In view  of the aforesaid section of the Act, inter alia  citations of the Hon’ble National Commission this forum has got no jurisdiction to adjudicate this complaint and  the complainant is directed  to approach  the appropriate  competent  forum  having jurisdiction for his grievance   as the  forum can not entertain   the claim  which exceeds rupees twenty lakhs.

The   learned counsel for the  O.P. No.4(Bank) argued  that  the debtor and   creditor  relationship  shall not create the  status of a consumer relied the citation   1992  (A) CPR- 86-88 State Commission, Rajstan. Hence  the case is not maintainable  & proceed to dismiss.

During the course of hearing the complainant also agreed to with draw the Complaint with prayer of liberty to file a better complaint in this forum  or any other forums of law having jurisdiction, and on such an event, the period spent agitating in this forum shall be excluded for the counting of limitation.

At  this stage this forum observed   the interest of justice  would met if  the  complainant should have filed a fresh complaint before the  appropriate Commission/forums having jurisdiction    on same cause of action   in response to the present order, rather than filing a Revision/Appeal   against the said order.

To   meet the ends of justice   the following order is passed.

                                                           

                                                ORDER.

In resultant the complaint is allowed to withdraw the complaint with permission to file a fresh Complaint/plaint/petition before the appropriate forum or courts of law having jurisdiction, and on such event, the period spent in this forum agitating the dispute i.e. the period from filing of this complaint to the date of disposal shall be excluded from counting of limitation.

The  Interim order passed on Dt. 13.12.2016, 28.7.2017, 31.10.2017,  13.5.2018  by this forum   stands  vacated.

No order as to costs.

Copies of the order be served on the parties  concerned as per rule.

Dictated and  corrected by me.

Pronounced on this      1st             day of  March, 2019.

 

MEMBER.                               MEMBER.                                           PRESIDENT.