DATE OF FILING : 18-05-2012.
DATE OF S/R : 18-06-2012.
DATE OF FINAL ORDER : 05-10-2012.
Sri Utpal Adak,
son of Sri Sukhendu Adak,
residing at village – Bardabar, P.O. Ajodhya,
P.S. Shyampur, District –Howrah,
PIN – 711 312.------------------------------------------------------------------ COMPLAINANT.
- Versus -
M/S. Uttam Bricks,
having its registered office and place of business
at village – Srirampur, P.O. Khurigachi, P.S. Shyampur,
District – Howrah,
PIN – 711315, being represented by its parterns –
1. Sri Pradip Mondal,
son of late Laxman Chandra Mondal,
residing at village – Naskarpur,
P.O. Kharuberia, P.S. Shyampur,
District – Howrah,
PIN – 711 314.
2. Sri Akhil Pramanick,
son of Sri Tulai Pramanick,
residing at village – Srirampur, P.O. Khurigachi,
P.S. Shyampur, District – Howrah,
PIN – 711 315.
3. Sri Amalesh Ghosh,
son of late Tushar Kanti Ghosh,
residing at Village & P.O. Deoly,
P.S . Shyampur, District – Howrah,
PIN – 711 301.
4. Sri Asit Pramanick,
son of Sri Tulsi Pramanick,
residing at Village – Srirampur, P.O. Khurigachi,
P.S. Shyampur, District – Howrah,
PIN – 711 315.-----------------------------------------------------OPPOSITE PARTIES.
P R E S E N T
President : Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.
Member : Shri P.K. Chatterjee.
Member : Smt. Jhumki Saha.
F I N A L O R D E R
1. The instant case was filed by complainant U/S 12 of the C.P. Act, 1986,
as amended against the O.Ps. alleging deficiency in service U/S 2( 1 )( g ), 2( 1 )( o ) of the C.P. Act, 1986 wherein the complainant, Utpal Adak has prayed for direction upon the O.Ps. to deliver 1,30,000 pieces of grade 1 bricks to the complainant and for compensation to the tune of Rs. 10 lacs for financial loss and unnecessary harassment together with litigation cost as the o.ps. in spite of receipt of Rs. 4 lacs on 11-11-2010 did not supply the same to the complainant.
2. O.p. nos. 2 & 4 in filing separate written version admitted the case of the
complainant and declared that one partnership deed was executed on 29-04-2011 and they shifted their burden upon the o.p. no. 3, Amalesh Ghosh.
3. O.p. no. 3 in filing separate written version contended interalia that
the complainant, Utpal Adak being a partner of o.p. no. 1 by virtue of the partnership deed dated 29-04-2011 is not a consumer ; that the money of the complainant has been transferred to the capital account of the complainant and the repayment was adjusted by selling of share of o.p. nos. 1, 2 & 4 ; that in view of such adjustment supplying of bricks is a myth. So the complaint should be dismissed.
4. Upon pleadings of both parties two points arose for determination :
i) Is there any deficiency in service on the part of the O.Ps. ?
ii) Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
5. Both the points are taken up together for consideration. After going through
the materials on record together with the enclosures and after hearing the ld. Lawyers of both sides we are of the view that the instant complaint fails owing to following reasons :
( a ) There is no dispute that the complainant advanced Rs. 4 lacs to Utam Bricks after placing an order for supply 1,30,000 bricks. Such payment was made on 11-11-2010 ( Annexure A ). Within lapse of 4/5 months the status of the complainant underwent a sea-change when the deed of partnership was executed on 29-04-2011 wherein the complainant Utpal Adak was incorporated as a partner of Utam Bricks before execution of the deed of partnership all the partners including the complainant executed a deed of declaration on the same date i.e., 29-04-2011 ( enclosure B of the written version ) wherein it was declared that the money of the complainant for purchasing the bricks be transferred to the capital account of the complainant and thus the repayment of bricks was adjusted by selling the share of o.p. nos. 1, 2 & 4. As such the agitation raised on the part of the complainant is just a tempest in the tea pot.
( b ) After execution of the partnership deed dated 29-04-2011, the complainant being a partner and a businessman shouldered all liabilities of the firm. Therefore, he has no right to claim individually with respect to refund of the money advanced by him on 11-11-2010. Likewise, lawyer’s notice dated 26-04-2012 demanding the supply of same number of bricks cannot have any leg to stand upon because such letter was sent to Utam Bricks of which the complainant was himself the partner. The status of the complainant as consumer prior to 11-11-2010 has been converted as businessman dealing with commercial matters.
( c ) In his counter objection, the complainant Utpal Adak dated 16-08-2012 admitted that he is a partner ( para 31 ) of the firm. We really wonder how the complainant, Utpal Adak being the partner of the same firm can deny his own signature and raised a dispute for genuiness of the deed of partnership. In the declaration dated 29-04-2011 ( Annexure B of the written version page 2 para 4 & 5 ) it is admitted that the money of Utpal Adak for purchasing bricks was adjusted with the shares of the partnership firm purchased by the complainant. In that deed of declaration in para 7 it was further admitted that o.p. no. 3 Amalesh Ghosh has no more previous liabilities to be discharged. As such we are of the view that the o.p. no. 3 has no liabilities as claimed by the complainant.
( d ) Complainant filed one case before the District Judge, Howrah, vide O.S. No. 04 of 2012 U/S 9 of the Arbitration Act which was pending before the Ld. Additional District Judge, 1st Court, Howrah, ( Annexure C of the written version ). We trace one compromise was held on 24-09-2011 ( Annexure G and Annexure II ) wherein the parties prayed for dismissal of the case stating that the liabilities of the brick field shall be shouldered equally till the final transfer of the brick field to any 3rd party.
( e ) Therefore, we are of the view that the complainant never came before this Forum in clean hands even disputed his signatures on different documents. His status as consumer ceased as soon as he became the partner of the instant brick field on 29-04-2011. Knowing fully he is also at the helm of management of Utam Bricks. After his entry as partner, cannot claim retrospective effect of his order for supply the bricks. Therefore, it is a fit case for dismissal.
Points under consideration are accordingly decided.
Hence,
O R D E R E D
That the C. C. Case No. 43 of 2012 ( HDF 43 of 2012 ) be and the same is dismissed on contest but without cost.
Supply the copies of the order to the parties, as per rule.
