Date of filing : 26.07.2017
Judgment : Dt.19.11.2018
Smt. Sashi Kala Basu, Hon’ble President.
This is a complaint filed under Section 12 of the C. P. Act by the Complainant namely M/s Puja Trade, represented jointly by (i) Ms. Rupali Guha Roy, (ii) Priyanka Guha Roy and (iii) Priyanjali Guha Roy alleging deficiency in service on the part of the opposite party M/s Ganpati Furniture System (P) Ltd.
The brief fact of the Complainant’s case is that they carry on their business for their livelihood dealing in sale and purchase of the furniture. During the course of the business on being approached by one Dilip Roy representing the OP and Mr. Bharadwaj, Manager of the OP to provide service to the Complainants in sale and purchase of the furniture of different types and sizes, the original representative of Complainant namely Barun Roy and Rupali Guha Roy (Priyanka Guha Roy and Priyanjali Guha Roy brought on record after the death of Barun Roy during pendency of this case by way of substitution) agreed to utilize the service of the OP and received several packages consisting of wooden furniture as detailed in the invoice No.337 dt.4.9.2015 and consideration amount of Rs.3,51,333.25p was demanded by the OP. Those furniture in packages were sent to the Complainant by truck. Complainant paid a sum of Rs.2,50,000/- by Account Payee Cheque and also gave one undated blank cheque as security. But, on physical verification of the wooden furniture, it was found that most of them were of bad quality and in damaged condition. Since the Complainant had to keep furniture in godown, Complainant had to pay a sum of Rs.34,200/- to o ne Barry Marketing. The Complainant requested the OP to take back the damaged furniture, but they did not take it back. On the contrary with mala fide intention they produced the undated signed cheque filling up the same by themselves mentioning Rs.1,40,329/-. But, the payment of the said cheque was stopped on the prayer of the Complainant. The OP is guilty of unfair trade practice and as such the present complaint has been filed for an order directing the OP to pay Rs.4,28,029/- along with interest @ 18% p.a.
The complaint petition is contested by the OP by filing written version denying the material allegation made against it contending inter alia, that the Complainant is not a consumer as the nature of the transaction is purely for commercial purposes and this Consumer Forum has no territorial jurisdiction to entertain the complaint.
It is the specific case of the Complainant that as per requirement of the Complainant OP sent various goods vide invoice dt.4.9.2015 amounting to Rs.3,51,333/-. Goods were received by the Complainant, but he only made part payment of Rs.2,50,000/- and issued a cheque for remaining amount of Rs.1,40,329/-. But, on presentation of the said cheque, it was returned unpaid on account of ‘stop payment’. A criminal complaint case has been filed by the OP against the Complainant under Section 138 of N.I.Act and the present case filed by the Complainant is only a counter blast to the said criminal complaint filed by the OP. Since the Complainants themselves have withheld the legitimate dues of the OP, the OP has prayed for dismissal of the complaint petition.
Along with the petition of complaint, Complainant has annexed the documents such as copy of sale invoice dt.4.9.2015, copy of letter to the Branch Manager by the Complainant requesting for stop payment, certain copies of e-mail sent by the Complainant to the OP, bill regarding charges to be paid in the exhibition at Kolkata Ice Skating Rink, receipt by Barry Marketing, stock summery and a copy of the demand notice sent by the Complainant to the OP through its Ld. Advocate.
During the course of the evidence, both the parties have filed their respective affidavit-in-chief followed by cross-examination in the form of filing questionnaire and reply thereto.
So, the following points require determination :-
- Whether the Complainant is a consumer within the definition as provided under the provision of C. P. Act ?
- Whether the OP is guilty of doing unfair trade practice?
- Whether the Complainant is entitled to the relief as prayed for.
Decision with reason
Point No.1
The definition of ‘Consumer’ under the provision of Consumer Protection Act is very categorical that it excludes all buying of goods or hiring or availing the services for commercial purposes. However, it will not include the goods bought or service availed exclusively for the purposes of earning one’s livelihood by means of self employment.
There cannot be any doubt that in this case Complainant purchased the huge number of furniture as mentioned in sale invoice, for sale, which means it was for commercial purpose. The furniture were taken for sale in an exhibition at Ice Skating Rink, is evident from the document. If that be so, than the complainant has to establish that they were purchased and were in sale only in order to earn their livelihood. A mere statement in the petition of complaint that Complainant carries on their business for their livelihood, will not be sufficient. Neither in the petition of complaint nor in their evidence Complainants have disclosed, since when they are running the said business. To a question put by the opposite party to the Complainants by way of questionnaire about the nature of their business as to whether it is a partnership firm, proprietorship firm or a company, Complainants have only stated that it is a self employed family business. It further appears that in spite of a specific question by the OP to Complainants as to whether they would produce the Trade License or partnership Registration Certificate or Certificate of Incorporation, Complainants have not produced/ filed those documents before this Forum. Neither any explanation is forthcoming for its non production. If these documents were filed then it would have been evident whether the business of the Complainants is having large scale sale operation in the area of Kolkata city and its adjoining towns, as alleged by the opposite party. So, withholding of those documents leads to an adverse inference against the Complainant. It is hard to accept that in purchase and sale of such heavy furniture, Complainants have no permanent staff. So in the absence of the documents referred to above, as the business in this case being for commercial purpose, Complainants are not the ‘Consumer’ under C. P. Act.
The case law cited by the Ld. Advocate for the Complainants reported in MANU/CF/0478/2017 (Leelavati VS V.S.R. Intratech Pvt. Ltd.) is not applicable in the given facts and situation of this case because in the said case law, at the stage of admission only case was dismissed on the ground of non-maintainability of consumer complaint. But, in this case in hand, evidence has been adduced which is already discussed above.
Apart from this, it is apparent from the sale invoice filed by the Complainant that the terms and conditions specifies that disputes under the invoice are subject to Delhi jurisdiction. So, as per the said terms, the competent court at Delhi has the necessary jurisdiction to entertain any complaint. Moreover, apparently in the cause title also OP’s business is in Delhi. The goods were supplied from the office of opposite party at Noida. So, on the point of territorial jurisdiction also, the case is not maintainable.
This point is thus answered accordingly.
Point Nos.2 & 3
Both these points are taken up together for discussions for the sake of brevity and convenience as they are inter-related.
We prefer to discuss whether there has been any unfair trade practice, in spite of the observation in point No.1 about non-maintainability of the complaint.
The sale invoice, filed by the Complainant, shows that huge number of the furniture were purchased by the Complainants and they were sent by OP on 04.09.2015. Admittedly total price was Rs.3,51,333/- out of which Rs.2,50,000/- was paid to OP by the Complainants by an account payee cheque which was encashed and also gave one another cheque which according to Complainants was only as security but according to OP cheque was towards rest of the price money.
The allegation against OP is that the most of the wooden furniture sent by them, were of bad quality and in damaged condition. Complainants requested the OP to take back those damaged furniture but they did not take it back. In this context, it may be pointed out that no document is filed about the details of furniture which were found by the Complainant damaged. As per the terms and conditions in the sale invoice, Claims against defects to reach to OP within 10 days of the receipt of the goods. So, Complainants have to establish as to when the goods were received and when those alleged defects were detected. Copies of certain e-mails are filed by the Complainants but there is no list of damaged furniture. Neither there is any document that OP responded to those mails acknowledging about defects being brought to their knowledge by the Complainants. No document is also forthcoming before this Forum about the total value of those alleged damaged furniture.
The documents filed by the Complainants indicates that the furniture were placed in an exhibition for four days at Ice Skating Ring. So, it is for the Complainants to establish that the furniture were found damaged on the date of receiving it after it was sent by the OP and not while loading/unloading thereafter either for exhibition purpose or otherwise.
Before this Forum excepting the statement of the Complainant, neither there is any document regarding list of alleged damaged furniture and its value nor the Complainant prayed for holding any inspection of those alleged damaged furniture by a Commission. A document which is a stock summery of the furniture is filed by the Complainant, which reflects of payment of an amount of Rs.12,000/- is made towards damaged furniture but to relate that they were the furniture received from OP, no document is filed. Said stock summery is for the period (From 1, April, 2015) and then 1, April, 2016 to 6 November, 2016. Furniture in questions were sent on 4.9.2015. So, Complainants have to establish by cogent evidence that those stock contained the furniture received from OP.
It further appears from the record that the Complainants have not paid the total consideration price of Rs.3,51,333/-. Admittedly, they paid only Rs.2,50,000/-. The balance amount has not been paid by the Complainants. The cheque issued by them which according to Complainants was just security but according to OP was for balance amount, was not encashed as the payment was stopped by the Bank on the prayer of the Complainants. So, the Complainants themselves have also not complied the agreement/sale invoice.
In view of the discussions as highlighted above, as the Complainants not only have failed to establish that they are ‘consumer’ but also have not been able to establish that the OP is guilty of unfair trade practice. So they are not entitled to any reliefs as prayed.
These points are answered accordingly.
Hence
Ordered
CC/412/2017 is dismissed on contest without cost.
