Order-18.
Date-27/05/2015.
Fact remains that Complainant Haradhan Gorai presented an account payee cheque bearing No. 000791 dated 06.03.2012 in favour of the op for a sum of Rs. 3,80,000/- to purchase a Solvent Printing Machine and as per contract, op was duly bound to supply the said printing machine on encashment of the cheque and fact remains that op encashed the cheque in the month of March-2012 but has not supplied the goods to the complainant till date. But on repeated requests on the part of the complainant, op did not act properly and did not deliver the same and shifted his office to one place to another to defraud the complainant and as protest against such illegal behaviour, complainant warned the op for taking legal steps and an Advocate notice on 16.10.2012 was sent which was acknowledged by the op but despite that op has neither responded through his Advocate, nor communicated any reason for the non-delivery of the goods to the complainant and being aggrieved by the conduct of the op, complainant filed this complaint before this Forum when cause of action arose on 06.03.2012 when the cheque was presented to the op by complainant and on encashment of the same by the op. But as per contract no machine was supplied and in the circumstances, for negligent and deficient manner of service and for adopting unfair trade practice, this complaint is filed praying for redressal.
Fact remains Jhabarmal Bothra on behalf of M/s. Ajoy Sales Corporation appeared by filing Vakalatnama and prayed for time and ultimately did not file any written statement and further did not take any step though the Ld. Lawyer of the op received the notice on 14.01.2013 and on 08.05.2014 but for not taking step by the Ld. Lawyer of op and even after that they did not take any step for which the case is heard accordingly.
Decision with reasons
On proper consideration of the complaint including the documents, it is found that complainant intended to purchase one Solvent Printing Machine 6 ft. including UPS and for which Jharkhand Gramin Bank, Gamarhia Branch granted loan to the complainant and the said bank authority in support of payment price of the said Solvent Printing Machine sent a cheque to Bank of India, Jamshedpur Branch multicity Cheque No. 000799 dated 05.03.2012 for a sum of Rs. 3,80,000/- as cost of the said machine to the op directly for delivering the machine to Haradhan Gorai of Bara Gamharia, P.O.- Gamharia, Dist – Seraikella, Kharswan and for that Bank Authority also directed the op to handover the machine to Mr. Gorai on 05.03.2012 and in this regard a letter dated 05.03.2012 of Jharkhand Gramin Bank supports that fact that op received the said cheque, encashed the same and bank authority directed the op to deliver the machine but op did not deliver.
Against that letter op wrote a letter to the Branch Manager of Jharkhand Gramin Bank, Seraikella, Jharkhand on 02.07.2012 stating that they were unable to handover the machine to Haradhan Goari one of the said bank customer because they are going to import the said machine within a month and tried their level best to provide the machine at the earliest without fail and that letter was issued on behalf of M/s. Ajoy Sales Corporation by Ajoy Bothra.
But even after that the machine was not delivered and from that letter on behalf of the op, it is clear that op admitted that there was a delay for delivery of the same machine and reason was there and truth is that op encahsed that amount of Rs. 3,80,000/- on the basis of multicity cheque No. 000799 dated 05.03.2012 of Bank of India, Jamshedpur Branch issued by the Manager, Jharkhand Gramin Bank, Seraikella, Jharkhand. Now question is why the op even after receipt of this notice in this case even after appearing before this Forum by filing power and even after getting further notice, op did not turn up to contest this case and in this regard we have gathered that op ultimately did not file any written statement on the ground that they are well aware that they received Rs. 3,80,000/- by cheque from Jharkhand Gramin Bank and op is also aware that op must report the Branch Manager that they shall have to deliver the same after receipt of the same after importing.
But he did not deliver it and fact remains that previously his office was at 219, Old China Bazar Street, 1st Floor, Kolkata – 700001 in the year 2012. Thereafter they shifted the office or closed that office and subsequently complainant when found that he was deceived and op adopted unfair trade practice, complainant filed this complaint on 22.11.2012 and fact remains that at that time that Ajoy Sales Corporation represented by Ajoy Bothra has been shifted to P-26, Raja Raj Krishna Street, P.S.- Burtolla at the 3rd floor and further during the continuation of this complaint, they shifted the office to another place i.e. C/o Sreechand Property House, 3A, Madan Mitra Lane, Kailash Bose Street (near Srimani Bazar), Kolkata - 700006.
But peculiar factor is that op’s Ld. Lawyer appeared on 23.03.2015 by filing power and on 02.04.2015 op’s Ld. Lawyer prayed for time to file written version. But thereafter they did not turn up and considering the conduct of the op, it is clear that op is nothing to say and challenged the allegation as made by the complainant. Even after getting the said amount by cheque from bank who granted loan in favour of the complainant did not supply the machine through bank authority by that letter reported to op to deliver the said machine to the complainant. But op even after reporting to the Bank Authority that the machine was not available at that time, so it shall be delivered within a short time and op also letter sent to the Branch Manager, Jharkhand Gramin Bank, Seraikella, Jharkhand to that effect by op but op did not handover or delivers the said machine as yet.
So, apparently the conduct of the op is found no doubt negligent and deficient in manner at the same time, Op has changed his address one after another place to defraud the complainant. So, the very conduct of the op is well proved that op has deceived the complainant and fact remains that he has swallowed the entire price money of the said machine and by that act op has adopted unfair trade practice to deceive the complainant.
Truth is that the entire amount of Rs. 3,80,000/- has been encashed by the op but the machine has not been delivered and such sort of conduct is no doubt an unfair trade practice and deceitful manner of trade on the part of the op for which complainant is entitled to get back the amount including 10 percent interest p.a. over the same since the date of receiving the cheque by the op that is from 05.03.2012 and till its full payment to the complainant and further for causing mental pain and agony and also for his daily loss of his earning and his livelihood for what purpose he intended to purchase the said machine, op shall have to pay penal damages to the extent of Rs. 50,000/- to complainant and further litigation cost.
In the result, this complaint succeeds.
Hence, it is
ORDERED
That the complaint be and the same is allowed exparte against the op with cost of Rs. 10,000/-.
Op is directed to pay and refund a sum of Rs. 3,80,000/- (which has been received by the op as price of the said Solvent Printing Machine 6ft. including UPS) and also shall have to pay 10 percent interest p.a. over the said amount since 05.03.2012 and till its full payment.
Further op is directed to pay penal damages of Rs. 50,000/- to the complainant for causing mental pain and suffering and also for causing loss to the daily income of the complainant for not supplying of the said machine as yet and further for adopting unfair trade practice and deficient manner of trade practices.
Op is directed to comply the order very strictly within one month from the date of this order failing which for non-compliance of the Forum’s order and also for disobeyance the Forum’s order, penal action at the rate Rs. 300/- per day shall be assessed till full satisfaction of the decree and even if it is found that op is reluctant, in that case, penal proceeding u/s 27 of C.P. Act 1986 shall be started against the op for which op shall be imposed further penalty and fine.
