Assam

Dibrugarh

CC/6/2009

SRI PRODIP KONCH - Complainant(s)

Versus

M/S INDOMECH INDUSTRIES - Opp.Party(s)

SRI ABHIMANYU BARUAH

30 Dec 2020

ORDER

       J U D G  M E N T

     This case of the complainant in brief is that the complainant entered into an agreement with M/s Indomech Industries, G.S. Tower, Fourth Floor, A.T. Road, Guwahati, represented by Sri Sibabrata Das, Senior Sales Executive  on 06-11-2008 for supply of one No.15 KVA Greaves make silent self start Generating Set at the cost of Rs.2,50,000/-. The firm had agreed to supply the machine within twenty days from the date of agreement. As per agreement an amount of Rs.50,000/- was paid in advance vide Cheque No.005620 dated 06-11-2008. But even after expiry of three months, the OPs have not supplied the machine, nor  they have informed about the position of supply. On the basis of the agreement the complainant obtained a contract for hiring of Generating Set at a monthly hire charge of Rs.15,000/- for which the complainant suffered financial loss of Rs.45,000/-. As such, due to non-supply of the said machine in time the complainant suffered financial loss as well as mental agony and harassment for which OPs are jointly and severally liable for the negligent act of OPs. As such, the complainant filed this petition before the Forum with prayer to return Rs.50,000/- paid in advance, Rs.46,500/-, loss of earning @ Rs.15,000/- per month for three months, Rs.50,000/- compensation for mental agony and harassment and cost of the case.

          On the basis of the above complaint petition this case was registered and issued notice to the OPs No.1,2 and 3 who appeared before the Forum and submitted their written statement.

       

          OPs No.1,2 and 3 in their written statement stated inter alia that the case is not maintainable in law as well as in facts. Complainant is not a consumer as defined U/s 2 (1) (d) of the C.P. Act. Further, there is no jurisdiction to file this case before this Forum as because OPs carry their business at Guwahati and it has no branch office at Dibrugarh. The complaint petition is false, frivolous and vexatious. It is further stated that clause (6) of the agreement   cum order was manufactured/inserted by the complainant after the execution of the agreement without any knowledge or consent for wrongful gain and to cause financial loss to the OPs. The OPs never agreed to receive balance amount after delivery of machine. As per terms the balance of full amount was to be paid against Proforma Invoice prior to one week from the date of despatch of the machine. It is further contended that OP No.3 on the last part of November 2008 itself intimated the complainant about the readiness of the Generating Set and asked the complainant to make balance payment of Rs.200,200/- together with Excise Duty and CESS on ED and C Form and the complainant was also invited to inspect the Generator Set at the factory of the OPs at Khanapara prior to delivery. But the complainant failed to take delivery of the machine within 15 days from the date of information rather he requested the OP No.3 to allow him some more time to arrange payment and accordingly OP allowed him time up to the month of January,2009 to make payment. The OPs are still ready and willing to perform their part of the contract provided the complainant makes payment of the entire balance amount. There is no negligence of service on the part of the OPs rather the complainant is himself negligent. As such, complainant is not entitled to any relief as prayed for and the case is in absence of merit is liable to be dismissed with cost.

             In this case the complainant examined himself as PW-1 and mentioned in the affidavit that he exhibited 3 (three) documents. Whereas, while submitting evidence on affidavit he did not submit those exhibits. He mentioned in his affidavit that OPs have filed a compromise petition before the Forum and exhibited as Ext.3 but he did not put even exhibit mark in the petition. On the other hand, OPs have examined one Sri Monoj Kr. Lundia as DW-1 and exhibited 5 (five) documents to rebut the case of the complainant. Heard argument of OPs and could not be heard argument of complainant since he was absent since long back.

 

DECISION AND REASONS THEREOF :

   Upon going through the evidence  of  both the parties and their documentary evidence and argument advanced by learned counsel for the OPs it is to found that complainant made an agreement with OPs represented by Sri Sibobrata Das, Senior Sales Executive on 06-11-08 by Ext.1 to purchase one No.15KVA Greaves Silent self start Generating Set at the cost of Rs.2,50,000/- but said Exhibit is not available with  record. However, a photocopy of an agreement cum order is available with the record which was submitted at the time of filing the complaint petition. Further, it also appears that on the same date i.e. 06.11.2008 a sum of Rs.50,000/- vide a cheque No.5620 dated 06-11-08 was paid in advance. The firm had agreed to supply the machine within twenty days as appeared in the photocopy of agreement. But three months have elapse, the OPs have not supplied the machine. As such, complainant filed the present complaint petition before this Forum.

        It is pertinent to mention here that while submitting the written statement by the OPs regarding execution of an agreement was not denied. The OP in their written statement stated that clause (6) of the agreement cum order was inserted subsequently after execution of agreement without any knowledge or consent of OPs for wrongful gain. The OPs never agreed to receive balance amount after delivery of machine. As per terms of payment the balance of full amount was to be paid one week ahead of despatch of the machine.

      In this case it is found from the evidence on record that the agreement to supply one No.15 KVA Greaves make silent self start Generating Set was executed on 6-11-2008 between the complainant and the OPs. The present complaint petition was filed by the complainant on 18-02-2009 i.e. after three month whereas, the machine was to supply within 20 days. Written statement was filed on 8-4-09 by the OPs. After filing the written statement the Generating set was supplied to the complainant. Complainant paid the remaining amount Rs.1,25,000/- to OPs on 01.06.09 as it appears from Bank account statements of OP vide Ext. A/1. Further, from Ext.B /2  it appears that OP after receiving the above  amount sent the machine and invoice through truck No.AS-01/U-3857. OPs also sent a letter dated 02-06-09 to the complainant. Ext-C/3  is the said letter. The machine was installed and was working accordingly. Meanwhile the machine supplied by OPs gave some trouble for which the complainant sent letter dated 13-07-09 informing OP about the defect of the machine. Ext. D/ 4 is the letter. The OPs after getting the said information rectified the defect vide Ext.E/5.

         Admittedly, the OPs after filing written statement supplied the Generating Set, PW-1 in his evidence stated that the OPs vide letter under Ref. No. 11 /Ph/09-10/048 dated 4.6.09 sent through FAX to the complainant with request to withdraw the case. Complainant made the said letter as Ext-2 but the said letter was not submitted with the evidence as such same is not available with the record and not proved.

        Now the main question is whether there was any amicable settlement outside the Forum and thereby the complainant and the OPs agreed to compromise the case ?

        From the document available in the record it is found that OP filed a petition No.957 dated 16-07-09 stating that the case has been amicably settled out of the Forum and there is  no claim by either party against the other and prayed to dismiss the case on being compromise.

 

      DW-1 in his evidence stated that after filing the written statement the complainant approached to OPs and requested them to compromise the case out of Forum and to deliver the Generating set on final payment of Rs.2,25,000/- instead of Rs.2,54,650/- as final settlement of the case. Complainant also assured that the case will be disposed of on compromise. When it was proposed the OPs accepted the same and asked the complainant to make payment of Rs.2,25,000/- including taxes, cesses, excise duty etc. and dispose of the present case. As per agreement dated 6.11.08 the complainant had to pay an amount of Rs.2,54,650/- as follows.

@       Basic price                          Rs.     2,50,200.00

Add: ED @ 8.24%                   Rs.       20,600.00

(since decreased)                      Rs.     2,70,800.00

 

Add C.S.T.@ 12.5%             Rs.       33,850.00

                                              Rs.    3,04,650.00

 

Less: Advance paid              Rs.       50,000.00

                                                  Rs.     2,54,650.00

 

 

 

 

 

Whereas, the acceptance of Rs.2,25,000/- in place of Rs.2,54,650/- was the essence of the compromise of the case and OPs have accepted the said  reduced consideration money as a condition to settle the dispute. Accordingly, the complainant on 1.6.09 issued cheque No.TRS 557655 for Rs.2,25,000/- which was credited in the account of OPs on the same day. The OPs on receipt of the payment of Rs.2,25,000/- immediately supplied the Generating Set vide their covering letter and Invoice dated 02-06-09. Ext- B/2 and C/3. The OPs vide their letter dated 4.6.09 requested the complainant to withdraw the case. The complainant then requested the OPs to file the compromise petition on 16.07.09 on the date fixed and assured that he will put his signature on the said compromise petition before the Forum. As such, on the assurance of the complainant compromise petition No.957 dated 16.7.09 was filed. Whereas, on the same date complainant filed another petition No.956 dated 16.7.09 praying for time to adduce evidence instead of signing the compromise/withdrawal petition No.957. Complainant with ill motive after lapse of three dates i.e. 11.08.09, 08.09.09 and 16.10.09 on 04.12.09 submitted evidence on affidavit and challenged the compromise petition after four months. DW-1 in his evidence stated that the complainant very cunningly compromised the case out of the Forum and got delivery of Generating Set after taking monetary benefit and now concocted a false story. The complainant has manipulated and suppressed the real fact.

 

              PW-1 in his evidence stated that OPs after filing the  written statement supplied the Generating set and requested him to withdraw the case vide OPs letter under Ref. No.11/Pk/09-10/048 dated 4.6.09 which was sent through FAX. PW-1 further stated that after receipt of the said machine he paid balance amount to OPs as agreed.

 

       As I have already stated that the complainant has not submitted any documents at the time of adducing evidence though mentioned  Ext.1 as Agreement cum Order, Ext.2 copy of the letter dated 4.6.09 and Ext.3 petition which was filed by the OPs to dismiss the case on compromise. However, it is to be mentioned here that both the parties have mentioned about the letter dated 4.6.09  i.e. the letter sent by OP with request to the complainant to withdraw the case, but surprisingly, none of the above parties have submitted the said letter which is best known to them. On the other hand, complainant said that he paid the balance amount to OP after sending the Generating set, but he has not mentioned about the amount. However, from the evidence as well as  the documents submitted by OPs particularly Ext. B/1 the  account statement of OP it reveals clear that on 1.6.09 Rs.1,25,000/- was credited in the account of OP. Further, DW-1 stated that actually the complainant had to pay Rs.2,54,650/- after deducting the advance of Rs.50,000/- but due to compromise that arrived between the parties, the OPs accepted the reduced amount of Rs.2,25,000/- which is the essence of the compromise of the case. The OPs have accepted the said reduced consideration money as condition to settle the dispute. As per settlement, the complainant despatched the cheque No.TRS 557655 for Rs.2,25,000/- on 1.6.09 which was  credited in the account of OPs on the same day. Thereafter, OPs on receipt of the payment the Generating set was sent along with their letter dated 02-06-09 Ext. C /3 and Invoice dated 2.6.09 Ext B/2.

             From the evidence of DW-1 and as per discussion made above it appears clear that there must have been some conversation as to the payment of money than the delivery of Generating Set and also about the compromise. Regarding compromise the complainant is totally silent and mentioned nothing except letter dated 4.6.09 which is about withdrawal of the case.

            It cannot be accepted that the OPs voluntarily after submitting the written statement delivered the Generating Set and complainant after receipt of Generating Set paid the balance amount. If it would have been such a situation the complainant would have flatly denied to take delivery of the Generating Set since he filed complaint petition before the Forum. Besides complainant has not described situation under which he received the Generating Set. From the foregoing discussion and the circumstances and the evidence led by the OPs, it is quite clear that some compromise had taken place between the parties but the complainant has deviated from the said commitment.

 

 

            Learned counsel for the OPs submitted that the present complaint petition is not maintainable as the complainant is not a consumer defined U/s. 2(1) (d) of the C.P. Act as the supply of the Generator set was for commercial purpose.           

           In this connection  it is to be mentioned here that the word for commercial purpose used in section 2(1) (d) (i) of the C.P. Act have to be given of precise and restricted meaning; commercial purpose has to be distinguished from commercial protection and commercial activity. As provided in explanation issued by ordinance in C.P. Ordinance dated 21.6.93 “Commercial purpose” does not include used by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self employment. Therefor, purpose of purchase of the Generating Set  is for self employment to earn livelihood is not for commercial purpose.

        It is further submitted by learned counsel for the OPs that this Forum has no jurisdiction to entertain the complaint petition because the OPs carry on its business at Guwahati and it has no branch office at Dibrugarh.

         In this connection it has to be mentioned here that the agreement was between the complainant and OPs represented by Sri Sibabrata Das, Senior Sales Executive on 6.11.08 at Dibrugarh and Generating Set was delivered and installed at Dibrugarh. As such, District Forum, Dibrugarh  has territorial jurisdiction.

                In spite of the discussion made above it appears from the evidence on record that  there was an agreement between the complainant and OPs to supply a Generating Set to the complainant within twenty days from the date of agreement and complainant also paid Rs.50,000/- in advance. The OPs have admitted the above contention in their written statement as well as in the evidence of DW-1. But in spite of the agreement the OP have not supplied the Generating Set to complainant within 20 days and violated the contract. Since, 20 days elapsed and the complainant has paid Rs.50,000/- in advance, it would obviously create doubt in the mind of the complainant as to the  genuineness of the agreement particularly when three months have elapsed after 20 days which established clear deficiency in service. Complainant has rightly filed the present case in the Forum. Upon considering of the above fact this Forum comes to the unassailable conclusion that the complainant has suffered mental

 agony and physical harassment due to deficiency in service and unfair trade practice committed by the OPs. Accordingly, the Forum order OPs to pay an amount of Rs.5000/- as compensation to the complainant for giving such mental torture and harassment. The OPs are further ordered to pay Rs.2000/- as cost of filing the instant case. All the above amount shall be paid to the complainant through this Forum within one month from the date of this Judgment.

Send copy of this judgment to the OPs for compliance.

 

   Dictated by

 

(Dr.Manashi Dutta)                                                                 Dr. Nitendranath Das

       Member                                                                                       President

Dist. Consumer Forum                                                            Dist. Consumer Forum

       Dibrugarh.                                                                                    Dibrugarh.

 

(  Sri Jadav Gogoi )

          Member

Dist. Consumer Forum

          Dibrugarh.