CC Filed on 30.04.2009<br /> Disposed on 11.02.2010<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR.<br /> <br /> Dated: 11th day of February 2010<br /> <br /> PRESENT:<br /> Sri. G.V.HEGDE, President.<br /> <br /> Sri. T.NAGARAJA, Member.<br /> Smt. K.G.SHANTALA, Member.<br /> ---<br /> <br /> Consumer Complaint No. 35/2009<br /> <br /> Between:<br /> <br /> <br /> Sri. Khaleel Ahmed,<br /> S/o. Ibrahim Sab,<br /> R/o Shalimar Garments,<br /> Chintamani.<br /> <br /> <br /> (By Advocate Sri. V. Sridhar & others) <br /> <br /> <br /> <br /> <br /> ….Complainant<br /> <br /> V/S<br /> <br /> <br /> Sri. Nama Sunil,<br /> S/o. Nama Nagaraj,<br /> Jeweller & Pawn Broker,<br /> Nama Choultry Building,<br /> M.G. Road,<br /> Chintamani.<br /> <br /> <br /> (By Advocate Sri. B.K. Devaraja & others) <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> ….Opposite Party<br /> <br /> ORDERS<br /> <br /> This is a complaint filed under section 12 of the Consumer Protection Act, 1986 praying for a direction against the opposite party to pay a sum of Rs.59,682.18 towards value of undelivered jewels, damages for mental agony, etc.,<br /> <br /> 2. The material facts of complainant’s case may be stated as follows:<br /> That on 09.11.2006 the complainant placed order with the OP for purchase of five items of jewels as per order voucher No. 0856 dated 09.11.2006 totally worth Rs.37,270.21. The complainant at the same time delivered old gold ornaments worth Rs.36,624/- to OP. He also borrowed Rs.8,000/- cash from OP at the same time. It is alleged that the complainant took delivery of jewels at items three to five shown in the order voucher and agreed to pay the balance amount after some time while receiving the delivery of jewels at item one and two shown in the said order voucher. It is alleged that thereafter the complainant approached the OP tendering the balance amount with a request to deliver items one and two but the OP went on postponing it and subsequently made unlawful demand and posed threats stating that he would not deliver the items one and two. Ultimately the complainant got issued legal notice to OP on 23.01.2009 demanding compliance. It is alleged inspite of service of legal notice the OP has not come forward to deliver items one and two by receiving the balance amount. Therefore the complainant has filed the present complaint on 30.04.2009. <br /> <br /> When the complaint was originally filed on 30.04.2009 he had mentioned that item No.2 shown in the delivery voucher alone was with OP and on 09.11.2006 he had received items one, three, four and five. Subsequently he made an application for amendment of complaint to insert that he had also not taken delivery of item no. one. That amendment was allowed subject to proof. <br /> <br /> 3. The OP appeared and filed the versions to the original complaint and the amended complaint. He contended in the version filed to amended complaint that apart from delivering items three to five shown in the order voucher on 09.11.2006 he delivered on the next day i.e. on 10.11.2006 item No. one at the request of complainant and he took delivery voucher dated 10.11.2006 signed by complainant showing delivery of items one as well as items three to five. He admitted the complainant placing orders and giving old gold as alleged in the complaint. He also stated that complainant took hand loan of Rs.8,000/- as alleged in the complaint. He contended that the complainant had stated on 09.11.2006 that he would come on the next day and pay the balance and receive items one and two, but on the next day i.e. on 10.11.2006 complainant expressed his inability to return hand loan of Rs.8,000/- and requested delivery of item No.1 and OP agreed for it and delivered item No. one and took the signature of complainant on the delivery voucher showing delivery of items one, three to five. Therefore he contended that only item No. two is not delivered and he is ready to deliver it on payment of the balance amount of Rs.8,000/- received as hand loan with interest and the balance of Rs.646.21 towards the value of jewels. Therefore he also contended that the complainant kept quiet for more than two years and thereafter issued legal notice and the complaint is not maintainable due to lapse of time. He denied the other allegations regarding unlawful demand posing threat etc., Therefore he prayed for dismissal of the complaint. <br /> <br /> 4. The parties filed affidavits in support of their respective contentions. They also filed documents. We heard the arguments. <br /> <br /> 5. The following points arise for our consideration:<br /> Point No.1: Whether the complaint is barred by time?<br /> <br /> Point No.2: Whether OP proves that he delivered jewel <br /> shown at item No. one in the order voucher dated <br /> 09.11.2006?<br /> <br /> Point No.3: Whether there is deficiency in service by OP?<br /> <br /> Point No.4: To what order?<br /> <br /> 6. After considering the records, evidence and the submissions of parties our findings on the above points are as follows:<br /> Point No.1: The averments in the complaint as well as the contentions taken in defence show that certain item/items of jewels was/were retained by OP as security for repayment of the loan and the balance price of jewels to him by complainant. In such case the cause of action arises from the date of demand and refusal to comply with the terms by either of the party. The complainant alleged that he made demands for delivery of balance items and the OP went on postponing it and demanded unlawful amount and finally he got issued legal notice dated 23.01.2009. Therefore we think that at or about the time of issuing legal notice the cause of action had arisen and the complainant can infer refusal by OP to fulfill the term of agreement only at that time. The complaint is filed on 30.04.2009. Therefore we think that the complaint is within time. <br /> <br /> If the OP had contended and proved that there was such demand and refusal more than two years prior to filing of the complaint, then only he can succeed in his contention that the complaint is barred by time. There is no such contention or proof placed by OP. Therefore we think the decision relied on by the OP is not relevant. For the above reasons we hold point No.1 in negative.<br /> <br /> Point No.2: It is an admitted fact that items three to five were delivered on 09.11.2006 itself to complainant. The only dispute is whether there was delivery of item no. one shown in the order voucher dated 09.11.2006. For proving the delivery of item No. one the OP produced delivery voucher dated 10.11.2006. At the time of arguments the original of this delivery voucher was shown to us. The complainant had disputed this document stating that this is a concocted document and his signature is forged on it. <br /> <br /> After careful consideration of the evidence and other facts and circumstances of the case we hold that delivery voucher dated 10.11.2006 produced by OP cannot be believed. The complainant has produced hard copy of order voucher dated 09.11.2006. The OP has produced hard copy of delivery voucher dated 10.11.2006. Both documents contained letter head portion describing the name and address of OP at the top of each page. Certain material particulars stated in the letter head portion in the document dated 10.11.2006 differ from the particulars stated in the letter head portion in the document dated 09.11.2006. In the document dated 10.11.2006 the District of the town where the shop of OP is situated is described as Chikkaballapur District whereas in the document dated 09.11.2006 it is shown as Kolar District. It may be noted that from the erstwhile Kolar District Chikkaballapur District is carved out on 23.08.2007. The document dated 10.11.2006 could not have described Chintamani Town where the shop of OP is situated as the Town within Chikkaballapur District as on that date. But the description of District is correctly shown in the document dated 09.11.2006. In the document dated 09.11.2006 the OP has described himself as “Secretary: Chintamani Jewellers Association” but in the document dated 10.11.2006 that description is not appearing. <br /> <br /> The OP contends that he got changed his letter head portion in the software after closure of the business on 09.11.2006 in anticipation of forming Chikkaballapur District. Therefore he contends that in the hard copy taken on 10.11.2006 Chikkaballapur District has appeared in the letter head portion. He also contends that his Secretaryship came to an end by 09.11.2006 therefore he deleted that description in the changed letter head form from 10.11.2006. We cannot believe such a version of OP. There was no necessity on 10.11.2006 itself to describe Chintamani as the town within Chikkaballapur Distirct. No other material is produced to show that prior to 10.11.2006 the post of Secretaryship came to an end. <br /> <br /> We asked the OP to produce hard copy of delivery vouchers generated soon after 10.11.2006 containing the signatures of different customers to verify whether really the OP had changed the letter head form in expectation of the creation of Chikkaballapur District. In his laptop it is found that in a month from 10.11.2006 number of gold items were delivered to different parties. Therefore one can expect that he should have taken hard copies of these delivery vouchers and should have obtained signatures of different customers. But he did not produce even a single delivery voucher shown to have been generated subsequent to 10.11.2006 containing the signatures of different customers. His explanation is that he was not taking signatures on delivery vouchers if a party is known to him and thereby he had not generated hard copy of delivery vouchers and had not taken signatures of customers. Such explanation appears to be too good to accept. <br /> <br /> We also verified the admitted signatures of complainant with that of the disputed signature found on the delivery voucher dated 10.11.2006. There are certain glaring differences in the admitted and disputed signatures. <br /> <br /> The OP admits receipt of legal notice got issued by complainant. Admittedly OP has not issued reply to it. If really item one was delivered on 09/10.11.2006 he would have certainly replied the legal notice. The legal notice states that items one and two were not delivered. It can be seen that item one weighs 23 grams and item two weighs 8.450 gms. The non-reply of legal notice is an adverse circumstance against OP. <br /> <br /> The OP had filed version to the unamended complaint wherein only item two was shown as undelivered item. At that time in the version the OP had stated that on 09.11.2006 itself except item No. two he had delivered other four items to complainant and further he stated subsequent to 09.11.2006 the complainant had not turned up to his shop and after lapse of two years complainant got issued legal notice. Now he contends that item No. one was delivered on 10.11.2006 and delivery voucher was signed by complainant. This fact was not stated in the earlier version. If there was delivery voucher signed by complainant that should have been produced at the earliest stage of the proceedings. It can be seen that order voucher dated 09.11.2006 shows that items three to five were delivered and such a remark is made under items three to five in this document. Such note regarding delivery is not shown under items one and two in this order voucher. It appears to overcome this difficulty the OP has created delivery voucher dated 10.11.2006 at the time of filing revised version to the amended complaint. For the above reasons we hold that OP has failed to prove point No.2.<br /> <br /> Point No.3: In view of the above findings we hold that there is deficiency in service on the part of OP. Hence this point is held in affirmative.<br /> <br /> Point No.4: Hence we pass the following:<br /> <br /> O R D E R<br /> <br /> The complaint is allowed with costs of Rs.1,000/-. The OP shall return the jewels shown in item No. one and two of Order Voucher dated 09.11.2006 to complainant on receiving Rs.8,646/- with interest at the rate of 8% p.a. from 10.11.2006 till the date of payment from him. <br /> <br /> If the OP fails to return the said items, the complainant is entitled to recover the present market value of the said items from OP less the amount payable by him. <br /> <br /> The OP shall pay compensation of Rs.10,000/- (rupees ten-thousand only) to complainant. The costs and compensation awarded herein shall be paid by OP to complainant within 30 days from the date of this order. <br /> <br /> Dictated to the Stenographer, corrected and pronounced in open Forum this the 11th day of February 2010.<br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br />