Chandigarh

StateCommission

A/119/2022

M/s R. P. Packers - Complainant(s)

Versus

M/s Fashion Tweet - Opp.Party(s)

Harish Goyal & Sanyam Bhardwaj Adv.

01 Nov 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	119 of  2022
Date of Institution	:	29.08.2022
Date of Decision	:	01.11.2022

 

 

 

 

 

M/s R.P. Packers through its Proprietor Shri Bajrang Jain, Ward No.15, 681/A, Harmilap Nagar, Baltana, Tehsil Zirakpur, District SAS Nagar, Mohali.

Mobile No.94639-70202.

…Appellant/opposite party

V e r s u s

M/s Fashion Tweet, through its Sole Proprietor Shri Gitesh Kumar son of Shri Ramesh Gupta, Shop at SCO No.2241, Mariwala Town, Manimajra, Chandigarh.

….Respondent/complainant

BEFORE:

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT. MRS.PADMA PANDEY, MEMBER. MR.RAJESH K. ARYA, MEMBER MR.PREETINDER SINGH, MEMBER.

  

Present:-     Sh. Harish Goyal, Advocate for the appellant (on VC).

                   Sh. Devinder Kumar, Advocate for the respondent

 

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

 

                   This appeal has been filed by the appellant/opposite party, as it is aggrieved of the order dated 21.07.2022 passed by the District Consumer Disputes Redressal Commission-I, U.T., Chandigarh, whereby consumer complaint bearing no.1065 of 2019  filed by the respondent/complainant was partly allowed as under:-

“…….To refund the amount of ₹10,080/- to the complainant being half of the invoice value;

To pay ₹5,000/- as compensation to the complainant for deficiency in service and unfair trade practice.

To also pay a sum of ₹5,000/- to the complainant as litigation expenses. 

This order be complied with by the OP within thirty days from the date of receipt of its certified copy, failing which, it shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @9% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.……..”

 

2.           The prime question which falls for consideration in this case is, as to whether, the appellant/opposite party has sold the paper carry bags/goods by sample or description?
3.           It is the case of the complainant/respondent that it ordered 2000 paper carry bags with the opposite party/appellant with its brand name on the agreed rate, for which he paid an amount of Rs.20,160/-, inclusive of GST, vide invoice dated 10.12.2018, Annexure C-1. When the material was supplied, the complainant found the same to be of inferior quality and different than what was shown by the opposite party. Therefore, number of telephonic complaints were made to the opposite party in the matter. When nothing positive came out, the complainant served a legal notice dated 03.08.2019, Annexure C-2, upon the opposite party but to no avail.
4.           The opposite party in its reply to the complaint stated that  the District Commission did not have territorial jurisdiction to entertain the consumer complaint; and that paper carry bags/goods were purchased by the complainant for commercial purpose. While  admitting the factual matrix of the case with regard to placing of order of 2000 paper carry bags with it at the agreed rate, it was stated that whatever quality was promised by the opposite party of the said paper carry bags was supplied to the complainant. It was averred that, in case, the complainant was not satisfied; he should not have made payment of goods.
5.           The complainant filed rejoinder to the written reply of the opposite party controverting its stand and reiterating its own version.
6.           The District Commission after hearing counsel for the parties and on going through the documents on record, partly allowed the complaint in the manner stated above. Hence this appeal.
7.           We have heard the contesting parties and scanned the material available on the record.
8.           Before going into the merits of this case, it is apposite to refer the provisions of Section 15 and 17 of the Sales of Goods Act, 1930 as under:- Section 15 of Sale of Goods Act, 1930 reads as under:-

“…15. Sale by description

Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description; and, if the sale is by sample as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description…”

 

Section 17 in The Sale of Goods Act, 1930 reads as under:-

“……..17. Sale by sample.—

(1) A contract of sale is a contract for sale by sample where there is a term in the contract, express or implied, to that effect.

(2) In the case of a contract for sale by sample there is an implied condition—

(a) that the bulk shall correspond with the sample in quality;

(b) that the buyer shall have a reasonable opportunity of comparing the bulk with the sample;

(c) that the goods shall be free from any defect, rendering them unmerchantable, which would not be apparent on reasonable examination of the sample….”

 

9.           It may be stated here that in the notice, Annexure C-2, as well as in the main consumer complaint, name of brand of the said paper carry bags is not mentioned. It is simply stated that carry bags for their brand name for 2000 quantity was ordered. It is apposite to reproduce para nos.2, 3 and 4 of consumer complaint as under:-

“……That the complainant has ordered for paper carry-bag with their brand name for 2000 quantity. The rate Rs. 7.50 and Rs. 10.50 for a single piece has been mutually agreed between the complainant and OP.

That the complainant has ordered 2000 pieces on the agreed rate and the opposite party has issued an invoice for Rs. 20,160/- with GST on 10-12-18. The invoice is annexed hereto as 'Annexure C-1'.

That the complainant has shown different material than supplied by the OP. A inferior quality bag has been supplied by the opposite party. To this effect, a no of complaints have been made telephonically to the OP but all went in vain.…….”

 

10.           A bare perusal of contents of the notice Annexure C-2, as well as of the consumer complaint reveals that the name of the brand of the  paper carry bags is not mentioned. A bare perusal of tax invoice, Annexure C-1 reveals that though brand name is mentioned but the same is not legible. It may be submitted here that though it has been stated in para no.3 of the notice, Annexure C-2 that the complainant was shown different material than the supplied one but there is no evidence or any substance available on the record as to what quality of paper carry bags was shown to the complainant at the time of booking thereof. In the absence of such evidence, no inference can be drawn that something different was shown to the complainant by the appellant before purchase of goods and different material was supplied to the complainant.
11.           Much reliance has been placed by the complainant upon notice Annexure C-2 to the effect that the said notice was not replied by the opposite party, as such, the non reply of the opposite party to the said notice itself amounts to admission on its part. It may be stated here that it is well settled law that mere non reply of  the notice does not amount to admission. It was so observed by the Hon’ble Punjab and  Haryana High Court, at Chandigarh, in Ravinder Kumar Gogia Vs. V. Ram Pal Hawaldar, CR No.6171 of 2008 (O & M), decided on 12.01.2009.
12.           Furthermore, in this case, the goods were accepted by the complainant and price thereof was paid to the opposite party. Even the goods were sold further to its clients by the complainant. It is specifically stated in para no.3 of the notice as under:-

“…….Every customer is complaining the poor qualities of your paper bag thus the image and reputation of my client's firm is degrading by the customer due to the fault on your part.…..”

 

13.           There is nothing on record that on receipt of the said paper bags from the opposite party, the complainant immediately lodged any complaint with regard to its  alleged inferior quality or otherwise. Furthermore, the goods were supplied to the complainant on 10.12.2018 and notice, Annexure C-2 has been issued on 03.08.2019 i.e. after more than eight months.  In Sorabji Hormusha Joshi And Co. vs V.M. Ismail And Anr. AIR 1960 Mad 520, it was held by the Hon’ble Madras High Court that where buyer has not shown that goods supplied by seller were not of merchantable quality as described in sold notes and on the facts, the goods supplied were of merchantable quality as they were capable of being used for purposes for which they were brought, and buyer had an opportunity to inspect them but he did not avail himself of the same and was content to take delivery, he is precluded from saying afterwards that unmerchantable goods were fraudulently palmed off on him and from holding seller liable for any damage done to the good. In the present case also, as stated above, since the complainant has failed to prove its case that after receiving the said papers, it inspected the same for its quality/brand and did not raise any objection immediately and on the contrary, had sold the same to its customers, as such, now the complainant is precluded from saying that the said papers were of inferior quality. The complainant has therefore  failed to meet the  requirement of the provisions of Sections 15 and 17 of the Sale of Goods Act, 1930. In our considered opinion, the District Commission fell into a grave error in holding to the contrary.
14.           In view of peculiar facts and circumstances of this case, it is held that the order passed by the District Commission being not based on the correct appreciation of facts and circumstances of the case, as also the record, suffers from illegality and perversity, warranting the interference of this Commission. The same is accordingly set aside.
15.           For the reasons recorded above, this appeal stands allowed. The order of the District Commission is set aside and the complaint stands dismissed with no order as to cost.
16.           Certified Copies of this order be sent to the parties, free of charge.
17.           The file be consigned to Record Room, after completion.

Pronounced

01.11.2022

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(PADMA PANDEY)

          MEMBER

 

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

 

Sd/-

(PREETINDER SINGH)

MEMBER

Rg.

 

 

 

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