DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

Civil Station, Palakkad – 678 001, Kerala

Dated this the 30^th day of September, 2009

Present: Smt.Seena.H, President

Smt.Preetha.G.Nair, Member

Smt.Bhanumathi.A.K, Member

CC No.137/2006

P.M.Swaraj,

S/o.Muthu Rowther,

Proprietor,

Razi Garments,

11/247, Jaffar Complex,

Koduvayur, Palakkad. - Complainant

(By Adv.K.Dhananjayan)

Vs

1. M/s.Iyyappa Syndicate Workshop,

185, Near Makali Amman Kovil,

Mangalam Road,

Tiruppur – 641604.

Tamil Nadu.

(By Adv.M.V.Suryaprabha)

2. The Branch Manager,

Punjab National Bank,

Kinasseri Branch,

Palakkad.

O R D E R

By Smt.Seena.H, President

In short the case of the complainant is as follows:

Complainant is a proprietor of a shop making ready made garments. The earnings from the garment unit is solely for his livelihood. Complainant approached the 1^st opposite party who is proclaimed to be a reputed firm and stockist of all sewing machines and obtained quotation for lock stitch straight button holding machine model LBH781 one quantity for Rs.115000/- and button sewing machine model MB373 one quantity for Rs.80000/-. Complainant obtained financial assistance from the 2^nd opposite party bank and made payment of Rs.1,95,000/- by way of Demand Draft to the 1^st opposite party. Opposite party received the entire payments and supplied the machine. From the

appearance of the two the machines itself, complainant understood that they were not genuine company manufactured machines as demanded by the complainant through his order. The said machines appeared to be made locally by assembling some parts and they were not usable. Complainant informed both opposite parties about the unworthiness of the machines. 2^nd opposite party bank also informed 1^st opposite party about the same through letter demanding replacement of the machines to new one or else return the amount of Rs.1,95,000/- by way of demand draft. Subsequently on 30/03/06, 1^st opposite party repaid Rs.1,55,000/- to 2^nd opposite party and took back both the machines from the complainant. 1^st opposite party also promised to pay the balance amount of Rs.45,000/- to the 2^nd opposite party without delay. According to the complainant, machine was installed on 16/03/06 and was taken back on 30/03/06 itself. Hence complainant has not at all used it. Further inspite of repeated requests the opposite parties has not paid the balance amount to the bank. 2^nd opposite party is asking the complainant to pay the balance amount of Rs.45,000/- with 12% interest. Complainant suffered mental agony and inconvenience due to the deficiency in service on the part of the 1^st opposite party. Complainant caused a lawyer notice dtd.06/05/06 to the 1^st opposite party demanding balance amount with interest. 1^st opposite party neither replied nor paid the amount. Hence the complaint. Complainant claims no relief against 2^nd opposite party.

2. 2^nd opposite party entered appearance. 1^st opposite party filed version contending inter alia that the complaint is not maintainable before the forum. That the purchase of the machines is for commercial purpose and hence will not come under the purview of the Consumer Protection Act. Further complaint is one of civil nature and hence not maintainable before the forum. Further as no part of the cause of action has arisen within the jurisdiction of the forum, complaint is not maintainable.

3. Another contention raised by 1^st opposite party is that he is only an agent for the supply of sewing machines. 1^st opposite party purchased the machines from GM Gaylord Machines Pvt. Ltd who are dealers and suppliers of the said machine. Complaint without impleading them is bad for non-joinder of necessary parties.

4. 1^st opposite party admits the supply of machines to the complainant for Rs.1,95,000/-. All other allegations are denied. According to 1^st opposite party he has undergone loss by taking back the machine and so the complainant has to compensate for

the loss. The balance amount of Rs.45,000/- was already paid to the complainant on 10/04/06 and that the complainant has issued a receipt to the opposite party. Hence there is no deficiency in service on the part of opposite parties.

5. 1^st opposite party produced the receipt issued by the complainant acknowledging receipt of Rs.45,000/-. Complainant disputed the signature in the said receipt and filed interim application to send the receipt to hand writing expert. Application was allowed. Expert filed report and was also examined.

6. The evidence adduced by the parties consists of chief affidavits and Exts.A1 to A4. Exts.B1 marked on the side of 1^st opposite party. Expert was examined as PW1.

7. Now the issues for consideration are;

1. Whether the complaint is maintainable before the forum?

2. Whether there is any deficiency in service on the part of the opposite parties?

3. If so, what is the relief and cost?

8. Issue No.1:

Complainant has specifically stated that the garment unit is solely for his livelihood. Complainant bought machineries by availing loan. Hence no doubt that the complainant is a consumer under the definition of Consumer Protection Act. Further loan has been availed from 2^nd opposite party who's office is within the jurisdiction of the forum. So it can be said that part of the cause of action has arisen within the jurisdiction of the forum. Opposite party has contented that the case is bad for non joinder of necessary party viz, the dealer for the supply of machines. Complainant has direct contact with 1^st opposite party alone. Hence the contention that dealers were not made party and hence complaint is bad for non-joinder is unsustainable. Hence the point is answered in favour of complainant.

9. Issue No.2:

The specific case of the complainant is that opposite party owes an amount of Rs.45,000/- to the complainant which is due to the 2^nd opposite party. 1^st opposite party has raised a contention that said amount has already been paid to the complainant and the complainant has issued a stamped receipt for the same. 1^st opposite party has not

specifically admitted taking back the machines and payment of Rs.1,95,000/- made to 2^nd

opposite party. But the contention raised by 1^st opposite party regarding payment of balance amount of Rs.45,000/- implies admission of the former also. Further the report of the hand writing expert is also in favour of the complainant. Report marked as Ext.A1 series clearly states that the author of specimen signature of Sri.P.M.Swaraj is not the author of the disputed signature in their case. In view of the aforesaid facts and circumstances of the case, we are of the view that complainant has succeeded in establishing a strong case in his favour.

10. In the result complaint allowed. 1^st opposite party is directed to pay an amount of Rs.45,000/- (Rupees Forty five thousand only) with 12 % interest from the date of availing loan till realisation along with Rs.10,000/- (Rupees Ten thousand only) as compensation for the deficiency in service on the part of 1^st opposite party and Rs.4,000/- (Rupees Four thousand only) as cost of the proceedings. Order shall be complied within in one month from the date of receipt of order.

11. Pronounced in the open court on this the 30^th day of September, 2009

Sd/-

Seena.H,

President

Sd/-

Preetha.G.Nair,

Member

Sd/-

Bhanumathi.A.K,

Member

Appendix

Witness examined on the side of complainant

PW1 – Shri.K.Khan Sahib

Witness examined on the side of opposite party

Nil

Exhibits marked on the side of complainant

Ext.A1 (Series) – Reports of Finger print expert

Ext.A2 – Copy of Quotation dtd.05/01/06 of 1^st opposite party

Ext.A3 – Copy of cash bill No.38 for Rs.1,95,000/- issued by 1^st opposite party

Ext.A4 – Copy of letter dtd.22/03/06 sent by 2^nd opposite party to 1^st opposite party

Ext.A5 (Series) – Lawyer notice sent by complainant dtd.06/05/06 along with postal

receipts and acknowledgment card

Ext.A6 – Proceedings of Kerala Khadi & Village Industries Board, Thiruvananthapuram

Ext.A7 – Pass-book

Exhibits marked on the side of opposite party

Ext.B1 – Cash receipt for Rs.45,000/- (Rupees Forty five thousand only)

Costs (allowed)

Rs.4,000/- (Rupees Four thousand only) allowed as cost