COMPLAINT FILED: 25.08.2008<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 20th DECEMBER 2008<br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER <br /> <br /> <br /> COMPLAINT NO. 1865/2008<br /> <br /> <br /> COMPLAINANT M/s. Suresh Digital Colour Lab<br /> & Studio,<br /> Dajibanpete,<br /> Hubli,<br /> Rep. by its Partner,<br /> Sri. Sanju. S.B.,<br /> S/o. Sri. M.B. Suresh,<br /> Aged about 26 years,<br /> R/o. D. No. 428/16,<br /> Keshavpur,<br /> Hubli.<br /> <br /> <br /> Advocate (S.G. Mahaveer)<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTIES 1. M/s. Ess Dee Nutek Infinities Pvt. Ltd.,<br /> Regd. Office at,<br /> D-784, Saraswathi Vihar,<br /> New Delhi.<br /> <br /> Now shifted to<br /> 2nd Floor, Orchid Plaza,<br /> Plot No. 4, Rajya Sabha,<br /> Pitampura,<br /> New Delhi – 110 034.<br /> <br /> Having its Branch Office/South Regional Office @<br /> <br /> Advocate (T. Nanjunda Raju)<br /> <br /> 2. M/s. Ess Dee Nutek Infinities Pvt. Ltd.,<br /> # 560, 3rd Main, 11th Cross,<br /> West of Chord Road,<br /> 2nd Stage,<br /> Bangalore – 560 086.<br /> <br /> <br /> O R D E R<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to pay a compensation of Rs.9,79,960/- and for such other reliefs on an allegations of deficiency in service and unfair trade practice.<br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> Complainant has placed an order with the OP for the purpose of purchase of two multijet machine of model No. II 3212 at a total cost of Rs.16,50,000/- including tax. A provisional sale agreement came to be executed on 26.03.2007. In pursuance of the said agreement complainant made a part payment of Rs.5,53,000/- in between 26.03.2007 and 28.04.2007. OP acknowledged the receipt of the same, which is approximately 25% of the total cost of the said machine. In addition to that OP collected 6 more cheques from the complainant towards the payment of the remaining balance. With all that OP failed to supply the said machine and install the same. The repeated requests and demands made by the complainant, went in futile. For no fault of his, he is made to suffer both mental agony and financial loss. Under such circumstances he felt the deficiency in service and unfair trade practice on the part of the OP. Hence he is advised to file this complaint and sought for the relief accordingly.<br /> <br /> 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP they have supplied one machine as per the agreement entered into between them. Actually the total cost of the said machine is Rs.4,16,000/-. OP installed the said machine at complainant premises. Complainant kept balance of Rs.28,000/-. In order to recover the same one cheque was presented which was given by the complainant towards the repayment of the other EMI, but it bounced. Hence OP has initiated the action under sec - 138 of N.I. Act. As a counterblast complainant has come up with this false and frivolous complaint. Actually the endorsement made on the provisional sale agreement with regard to the payment of Rs.4,75,000/- are all forged. The approach of the complainant is not fair and honest. Complainant has illegally withheld a total sum of Rs.3,28,000/- which is due to the OP. There is no deficiency in service muchless unfair trade practice on the part of the OP. The entire complaint is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has proved <br /> the deficiency in service on the part of the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Negative<br /> Point No.2:- Negative<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. It is contended by the complainant that he placed an order for supply of two multijet machine model No. II 3212 with the OP for a total cost of Rs.16,50,000/-. In that regard a provisional sale agreement came to be executed on 26.03.2007. When we go through the said provisional same agreement it speaks otherwise. So basically complainant has not established the fact that OP agreed to sell two multijet machine for a total cost of Rs.16,50,000/-. Further the complainant has stated that towards the cost of the said machine he has in all paid Rs.5,53,000/-. OP disputed the receipt of the same, that too with regard to the endorsement alleged to have been made on the said provisional sale agreement dated 26.03.2007. The person who alleged to have received Rs.1,50,000/- on 08.04.2007 and Rs.3,25,000/-, of course no date is mentioned, has denied the said fact by filing an affidavit. Both the endorsement speaks to the fact that the said amount is paid by way of cash. If that is the fact complainant would have shown his capability of paying the said huge amount in cash and that too as on that day he had a such cash with him during the course of business. But again we find the complainant has failed to establish the said fact.<br /> <br /> 7. The other things in this complaint to be noted is that complainant wants to rely on provisional sale agreement dated 26.03.2007, but whereas the sale agreement on the basis of which OP supplied the said machine refers to the date 12.05.2007. All the documents produced by the OP bears the signature of the father of the complainant Mr. M.B. Suresh and he is the direct party to the said transaction. His signature can be found on the demo report card, quotations, performa letter, delivery letter, feed back, etc. But unfortunately with all that complainant not filed the affidavit of his father to substantiate his contention. On the other hand non-examining of the said M.B. Suresh creates the doubt with regard to the genuineness of the complaints alleged by the complainant. Why he is kept behind the curtain when he is a party to the whole transaction is not known. <br /> <br /> 8. The burden lies on the complainant to establish the fact of payment of the said amount. Even on the perusal of the said provisional sale agreement, it can be made out that only Rs.5,25,000/- is paid as against Rs.16,50,000/-. But whereas complainant has contended in his complaint that he paid Rs.5,53,000/-. As against this discrepancy OP has come up with a specific defence that though earlier complainant thought of purchasing the said machine as alleged, but he dropped that idea. Then shown his inclination to purchase only one machine for a total consideration of Rs.4,16,000/- and whatever the amount that was paid earlier namely Rs.50,000/- as advance it is adjusted in the subsequent payment including that of Rs.38,000/- in all Rs.88,000/-. We are satisfied that OP has delivered the said machine and installed the same. The documents speak to the said fact. With all that complainant failed to make payment of the remaining amount of Rs.3,28,000/-. Of course the fact that complainant issued 6 post dated cheques for the repayment of the amount in due is not at dispute. <br /> <br /> 9. OP presented one of the cheque for encashment of Rs.50,000/-, but it is dishonoured. Hence he got issued the legal notice by initiating action under sec-138 of N.I. Act. Though complainant is aware of the said fact it is not pleaded. The reply given by the complainant to the said notice clearly speaks to the fact of supply and installation of one machine. Though all these facts are well within the knowledge of the complainant, unfortunately he suppressed the same to mention in his complaint. His own reply dated 29.12.2007 supports the defence of the OP. The main contention of the complainant is that the product supplied is of a low quality and of less technical specification, nothing more than that. Para. 6 and 7 refers to supply of the said machine and installation of the same. On the other hand complainant has claimed Rs.1,37,000/- as an excess of amount paid as against the actual cost of Rs.4,16,000/-. Whereas the defence of the OP is otherwise. According to OP complainant is still in due of Rs.3,28,000/-. So whole of the dispute appears to be with regard to the payment of the amount and is of civil in nature.<br /> <br /> 10. The allegations made in the complaint, in our view did not spell out a case of hiring of a service and suffering from deficiency, rather it disclosed a case relating to settlement of accounts and for the balance due on the basis of the accounts. When that is so, the complainant did not fall within the ambit of sec-2(1) (c) (e) of the C.P. Act. If the complainant is so advised, he can file a regular Civil Suit for proper remedy and redress his grievance. The documents produced by the litigating parties clearly speak loudly about the dispute of civil nature, that too having good number of allegations of forgery, concoction, etc. Considering the complex question of law, it entailed it would require volumeness evidence for its disposal, which is not possible for this Forum to go into all these aspects in its summary jurisdiction. The averments made in the complaint is rather contrary to his own reply given to the notice caused by the OP under sec – 138 of N.I. Act. Under such circumstances we find the complaint is devoid of merits and the complainant has not approached the Forum with clean hands. It is said he who seeks equity must do equity and must come with clean hands. But here the approach of the complainant is otherwise. Under such circumstances complainant does not deserves the relief claimed. There is no proof of deficiency in service. Accordingly we answer point nos.1 and 2 in negative and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is dismissed. In view of the nature of dispute no order as to costs.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 20th day of December 2008.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> p.n.g. <br />