DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD
Dated this the 29th day of March, 2012
Present : Smt.Seena.H.President
: Smt.Preetha. G. Nair, Member
: Smt.Bhanumathi A.K. Member Date of filing:23-07-2011
CC/121/2011
Vidyasagar Panicker,
Vandana Enterprises,
Varikkat, Lokaparameshwari Road,
Kavilpad,
Palakkad (Dt), Pin-678 017
Kerala.
(Party in person) - Complainant
Vs
Mr.P.L. Birla,
Paper Product Machines,
B-170, D.D.A sheds,
Okhla, Phase 1,
New Delhi-110020 - Opposite party
(By Adv.V.V.Girish)
O R D E R
By Smt. PREETHA G NAIR, MEMBER
The complainant had given an order for paper napkin making machine to opposite party on 31/08/2010 with the intention of starting a Paper Napkin Manufacturing business. An advance of Rs. 1,00,000/-(Rupees One Lakh Only) as Demand Draft was given with the order in the name of Paper Product Machines from State Bank of Travancore. The fund for the business was raised as loan from State Bank of Travancore, Kollengode branch. The construction of the building and other facilities was started from 05/09/2010 but delayed due to steep increase in the price of construction materials, the complainant could not completed the construction within the time limit of 19/02/2011. The bank's schedule for loan repayment started from 19/02/2011 and they asked to repay the loan installments. Also the cost of the construction of the building became almost double of the estimate. Under this circumstance the complainant compelled to drop the project due to financial problems and the order for the machine is cancelled on 05/05/2011. The complainant requested the opposite party to refund the advance paid to them. But the opposite party has not returned the advance amount. The opposite party was agreed that the advance
amount was to be deducted from the bill at the time of delivery and the amount was paid to them with good faith. The act of opposite party amounts to deficiency in service and unfair trade practice. The order was given to the opposite party with good intention to start a paper napkin manufacturing unit to provide self employment for the complainant and his wife. They wanted to make a livelihood for their family. The order given to opposite party is not for a specialized machine, but for their regular machine selling to various customers. Hence the complainant prays an order directing the opposite party to refund the advance amount of Rs. 1,00,000/- (Rupees One Lakh Only) with 12% interest and pay Rs.40,000/- (Rupees Forty Thousand Only) as compensation for mental torture.
The opposite party filed version stating the following contentions.
The complaint is not maintainable. The opposite party admitted that advance amount of Rs. 1,00,000/-(Rupees One Lakh Only) was paid by the complainant. The initial order was placed on 28/06/2010 and in terms of that order the opposite party manufactured the machine and thereafter numerous telephone calls were made to complainant requesting to collect the machine. Thereafter the opposite party has sent a letter dated 27/11/2010 requesting the complainant to collect the machine and pay the balance amount. Then the complainant has sent a cancellation order. The opposite party has spent lot of amount for manufacturing the machine to fulfill the order dated 28/06/2010. The complainant under no circumstance is entitled to refund of the amount on the contrary he is liable to pay the balance amount of Rs.4,64,560/- along with penal interest of 24%. Thereafter the opposite party issued a legal notice dated 16/05/2011 to the complainant to initiate legal proceedings against the complainant that not lifting the machine and paying the balance amount. The complainant neither replied the notice nor complied the same. The opposite party stated that the machine has been very specifically manufactured by them strictly as per the order of the complainant and it has a deviation from the other machine. The opposite party is not liable to pay the amount. Hence the opposite party prayed that dismiss the complaint with cost in favour of opposite party.
Complainant filed affidavit and documents. Ext. A1 to Ext. A5 marked. Opposite party no affidavit filed.
Matter was heard and complaint allowed. Thereafter opposite party preferred an appeal before the Hon’ble State Commission. Then the Hon’ble State Commission remanded back the complaint to adduce evidence and dispose the case on merits. The opposite party filed Power of Attorney and chief affidavit. Ext.B1 to B6 marked on the side of the opposite party. Complainant was cross examined as PW1. Matter was heard.
Issues to be considered are
1. Whether the complaint is maintainable or not ?
2. Whether there is any deficiency in service on the part of opposite party ?
3.If so what is the relief and cost entitled to the complainant ?
Issue No.1
The opposite party stated that the complaint is not maintainable. Section.11 2 (c) of the Consumer Protection Act:- A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction:-
(C) The cause of action, wholly or in part arises. The opposite party admitted that advance amount of Rs.1,00,000/- was paid by the complainant as Demand Draft dated 19/08/2010 from State Bank of Travancore, Palakkad. In Ext. A5, copy of letter of the State Bank of Travancore, Kollengode branch, Palakkad shows that the loan Account of complainant is running irregular and requested to regularize the position within 15 days. The complainant argued that the advance amount of Rs. 1,00,000/- was paid as Demand Draft from State Bank of Travancore, Kollengode branch, Palakkad to the opposite party. No contradictory evidence was produced by the opposite party. The opposite party stated that the specific clause in Ext.B2 shows that all disputes subject to Delhi jurisdiction only. Section 3 of the Consumer Protection Act deals that “Act not in derogation of any other law:- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. The opposite party has not produced evidence to show that the complainant is the defaulter. Hence the complaint is maintainable. The 1st issue answered in favour of the complainant.
Issue No.II & III
Heard both parties and perused the relevant documents on record. As per the terms in Ext.B2 the delivery has to be effected within 3 months from the date on payment of advance. The opposite party stated that within that period he completed the machine and intimated the complainant over phone several times. The opposite party has not produced evidence to show that they completed the machine within 3 months and intimated to the complainant. At the time of cross examination complainant deposed that there was no intimation given by the opposite party about the completion of the machine. As per Ext.B4 dated 27/11/10 the opposite party requested the complainant to collect the machine immediately and pay the balance amount. But the complainant stated that Ext.B4 letter was not given. The opposite party has not produced any documentary evidence to prove that Ext.B4 sent to the complainant.
At the time of cross examination the complainant deposed that Delhi  sN¶v machine IXn\vtijamWv Order place sNbvXXv. Rm³ I sajo³ F\n¡v A\ptbmPyamb specification DÅXmbncp¶nÃ. Company reductions Xcmsa¶v ]dªXpsImv Rm³ B machine Xs¶ order place sNbvXp. In short the machine was completed before placing the order by the complainant. The complainant stated that the order was given to opposite party with intension to start a paper napkin manufacturing unit to provide self employment for him and his wife to make livelihood. Further the complainant stated that the construction of the building and other facilities was started from 5/9/10, but delayed due to steep increase in the price of construction materials the complainant could not complete the construction within the time limit of 19/2/2011 and the bank asked to repay the loan installments. Also the cost of the construction of the building almost double of the estimate.
In Ext.A1, the terms and conditions mentioned that “our quotation stands valid for a period of 90 days from this date, beyond which it will be subjected to our confirmation. Nowhere stated the advance amount not refund. No evidence was produced by the opposite party to prove that the machine has been specifically manufactured strictly as per the order of the complainant. It is evident from Ext.A5 that the loan account is running irregular and the bank shall be constrained to initiate appropriate action. The opposite party has doing the manufacturer of the paper napkin making machine as per the order. No evidence was produced by the opposite party to show that loss suffered to him for manufacture of machine as per the order of complainant. Ext.B3 shows that the complainant had given an order to purchase the machine on 31/8/2010. Ext.A3 dated 5/5/2011 the complainant sent a letter to the opposite party stating that due to unavoidable reasons they compelled to cancel order dated 31/8/10 for paper napkin making machine.
In the present case the complainant stated that he cancelled the order for paper napkin making machine due to financial problems. According to the opposite party they are completed the machine as per the order of complainant. No evidence was produced by the opposite party to prove that the machine was completed as per the complainant’s order. Moreover the opposite parties has not produced evidence to show that the machine was completed within 3 months. In the interest of justice complaint partly allowed.
We direct the opposite party to pay complainant an amount of Rs.90,000/- as the 90% of the advance amount and pay Rs.1,000/- as the cost of the proceedings.
Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order, till realization.
Pronounced in the open court on this the 29th day of March 2012.
Sd/-
Smt.Seena.H
President
Sd/-
Smt. Preetha.G.Nair
Member
Sd/-
Smt. Bhanumathi.A.K
Member
A P P E N D I X
Exhibits marked on the side of the complainant
1. Ext. A1-Original of 'quotation' along with brochure issued by the opposite party, dated, 28/06/2010.
2. Ext. A2- Original of purchase order placed by the complainant dated
31/08/2010.
3. Ext. A3- Letter sent by the complainant to the opposite party dated
05/05/2011.
4. Ext. A4- Letter issued by the opposite party to the complainant dated
10/05/2011.
5. Ext. A5- Letter from State Bank of Travancore, Kollengode Branch, Palakkad dated 22/06/2011.
Exhibits marked on the side of the opposite party
1.Ext.B1 – Letter sent by Vandana Enterprises to the opposite party
dt.20/4/09
2.Ext.B2 – Copy of quotation sent to the complainant by opposite party
dt.28/6/10
3.Ext.B3 – Purchase order placed by complainant dt.31/8/10
4.Ext.B4 –Copy of the letter sent by the opposite party to the
complainant dated 27/11/10
5.Ext.B5 – Copy of the letter sent by opposite party to the complainant
dt.10/5/11
6.Ext.B6 – Legal notice sent by opposite party to the complainant
through their advocate alongwith postal receipt.
Witness examined on the side of the complainant
PW1 – Vidyasagar Panickar
Witness examined on the side of the opposite party
Nil.
Cost allowed
Rs. 1,000/- allowed as the cost of the proceedings
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
Palakkad, Kerala
Dated this the 27th day of September, 2011
Present: Smt.Preetha. G. Nair, Member
: Smt.Bhanumathi A.K. Member Date of filing:23-07-2011
CC/121/2011
Vidyasagar Panicker,
Vandana Enterprises,
Varikkat,
Lokaparameshwari Road, - Complainant
Kavilpad,
Palakkad (Dt), Pin-678 017
Kerala.
(Party in person)
Vs
Mr.P.L. Birla,
Paper Product Machines, - Opposite party
B-170, D.D.A sheds,
Okhla, Phase 1,
New Delhi-110020
O R D E R
BY SMT. PREETHA G NAIR, MEMBER
The complainant had given an order for paper napkin making machine to opposite party on 31/08/2010 with the intention of starting a Paper Napkin Manufacturing business. An advance of Rs. 1,00,000/-(Rupees One Lakh Only) as Demand Draft was given with the order in the name of Paper Product Machines from State Bank of Travancore. The fund for the business was raised as loan from State Bank of Travancore, Kollengode branch. The construction of the builiding and other facilities was started from 05/09/2010 but delayed due to steep increase in the price of construction materials, the complainant could not completed the construction within the time limit of 19/02/2011. The bank’s shedule for loan repayment started from 19/02/2011 and they asked to repay the loan installments.
Also the cost of the construction of the building became almost double of the estimate.
Under the circumstances the complainant compelled to drop the project due to financial
problems and the order for the machine is cancelled on 05/05/2011. The complainant requested the opposite party to refund the advance paid to them. But the opposite party has not returned the advance amount. The opposite party was agreed that the advance
amount was to be deducted from the bill at the time of delivery and the amount was paid to them with good faith. The act of opposite party amounts to deficiency in service and unfair trade practice. The order was given to the opposite party with good intention to start a paper napkin manufacturing unit to provide self employment for the complainant and his wife. They wanted to make a livelihood for their family. The order given to opposite party is not for a specialized machine, but for their regular machine selling to various customers. Hence the complainant prays an order directing the opposite party to refund the advance amount of Rs. 1,00,000/- (Rupees One Lakh Only) with 12% interest and pay Rs.40,000/- (Rupees Forty Thousand Only) as compensation for mental torture.
The opposite party filed version stating the following contentions.
The complaint is not maintainable. The opposite party admitted that advance amount of Rs. 1,00,000/-(Rupees One Lakh Only) was paid by the complainant. The initial order was placed on 28/06/2010 and in terms of that order the opposite party manufactured the machine and thereafter numerous telephone calls were made to complainant requesting to collect the machine. Thereafter the opposite party has sent a letter dated 27/11/2010 requesting the complainant to collect the machine and pay the balance amount. Then the complainant has sent a cancellation order. The opposite party has spent lot of amount for manufacturing the machine to fulfill the order dated
28/06/2010. The complainant under no circumstance is entitled to refund of the amount on the contrary he is liable to pay the balance amount of Rs.4,64,560/- along with penal interest of 24%. Thereafter the opposite party issued a legal notice dated 16/05/2011 to the complainant to initiate legal proceedings against the complainant that not lifting the machine and paying the balance amount. The complainant neither replied the notice nor
complied the same. The opposite party stated that the machine has been very specifically manufactured by them strictly as per the order of the complainant and it has a deviation
from the other machine. The opposite party is not liable to pay the amount. Hence the opposite party prayed that dismiss the complaint with cost in favour of opposite party.
Complainant filed affidavit and documents. Ext. A1 to Ext. A5 marked. Opposite party no affidavit filed. Matter was heard.
Issues to be considered are,
1. Whether the complaint is maintainable?
2. Whether there is any deficiency in service on the part of opposite party?
3. If so, What is relief and cost entitled to the complainant?
Issue I
The opposite party stated that the complaint is not maintainable. Section 11 2 (c) of the Consumer Protection Act.
(C) The cause of action, wholly or in part arises. The opposite party admitted that advance amount of Rs.1,00,000/- was paid by the complainant as Demand Draft dated 19/08/2010 from State Bank of Travancore. In Ext. A5, the State Bank of Travancore, Kollengode branch, Palakkad shows that the loan Account of complainant is running irregular and requested to regularize the position within 15 days. The complainant argued that the advance amount of Rs. 1,00,000/- was paid as Demand Draft from State Bank of Travancore, Kollengode branch, Palakkad to the opposite party. No contradictory evidence was produced by the opposite party. Hence the complaint is maintainable. The 1st issue answered in favour of the complainant.
Issues II & III
After receiving the notice, the opposite party has not present before the Forum. The version filed in the office by the opposite party. Complainant present in all postings. But the opposite party was absent. No affidavit and documents filed by opposite party. The act of opposite party amounts to deficiency in service. The complainant stated that the order was given to opposite party with intention to start a paper napkin manufacturing unit to provide self employment for the complainant and his wife to make livelihood. Further the complainant stated that the construction of the building and other facilities
was started from 05/09/2010, but delayed due to steep increase in the price of construction materials the complainant could not complete the construction within the
time limit of 19/02/2011 and the bank asked to repay the loan installments. Also the cost
of construction of the building almost double of the estimate. In Ext. A1, the terms and conditions mentioned that "Our quotation stands valid for a period of 90 days from this date, beyond which it will be subjected to our confirmation". No where stated the advance amount not refund. No evidence was produced by the opposite party to prove that the machine has been specifically manufactured strictly as per the order of the complainant. No evidence was produced by the opposite party to show that the machine has a deviation from the other machine. It is evident from Ext. A5 that the loan Account is running irregular and the bank shall be constrained to initiate appropriate action. The opposite party has manufactured the paper napkin making machine as per the order. No evidence was produced by the opposite party to show that loss suffered to them for manufacturing of machine as per the order of complainant.
In the above discussions we are of the view that there is deficiency in service on the part of opposite party. Hence the complaint allowed. We direct the opposite party to refund the advance amount of Rs.1,00,000/- and pay Rs. 3,000/- as compensation for the mental agony. And also pay Rs.500/- as cost of the proceedings to the complainant.
Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of receipt of order till realization.
Pronounced in the open court on this the 27th day of September, 2011.
Sd/-
Smt. Preetha.G.Nair
Member
Sd/-
Smt. Bhanumathi.A.K
Member
A P P E N D I X
Exhibits marked on the side of the complainant
Ext. A1-Original of ’quotation’ along with brochure issued by the opposite party, dated, 28/06/2010.
2. Ext. A2- Original of purchase order placed by the complainant dated 31/08/2010.
3. Ext. A3- Letter sent by the complainant to the opposite party dated 05/05/2011.
4. Ext. A4- Letter issued by the opposite party to the complainant dated 10/05/2011.
5. Ext. A5- Letter from State Bank of Travancore, Kollengode Branch, Palakkad dated 22/06/2011.
Exhibits marked on the side of the opposite party
Nil.
Witness examined on the side of the complainant
Nil.
Witness examined on the side of the opposite party
Nil.
Cost allowed
Rs. 500/- allowed as the cost of the proceedings.
