BY -    SRI ASISH DEB, PRESIDENT

Brief facts of the complainant’s case are that the Complainant’s dwelling house was very old and he made a plan to construct a “ Paka bari”. O.P. has a Brick Field in the above mentioned address. On 11.11.2016 complainant went to the Brick Field of the O.P. with the following companion, Banamali Jana S/O Late Sudhir Jana of Vill. Pratham Khanda Jalpai, P.S. Chandipur, Dist. Purba Medinipur. Goutam Das S/O Panchanan Das of Vill. Habichak, P.O. Nandapur, P.S. Chandipur, Dist. Purba Medinipur, Sanatan Duyari S/O Subhas Duyari, Vill. Dhanda, P.O. Gopinathpur, P.S. Bhagwanpur, Dist. Purba Medinipur. It was settled in presence of the complainant, Banamali Jana, Goutam Das and Sanatan Duyari that complainant would have to pay Rs. 1,30,000/- ( Rupees one lakh and thirty thousand) for 20,000 Bricks @ 6,500/- per thousand bricks. O.P. paid Rs. 30,000/- on the spot (same day on 11-11-2016 ) and Rs. 1,00,000/- (Rupees one lakh) on 12/11/2016. O.P. handed over a cash memo/receipt in the name of the said Brick Field, in which he accepted the amount with his own signature on 11/11/2016 and 12/11/2016 for Rs. 30,000/- and 1,00,000/- respectively. It was also settled that O.P. will deliver the total Bricks 20,000 within 7 days. Accordingly complaint purchased about 100 bags of cement required sand and stone chips etc. for construction of his “Paka Bari”. Digging of “BHIT” was completed. Iron Rods were purchased. But due to want of Bricks construction was not started and complainant went to brick field on 20/11/2016 for asking the cause of not sending the Bricks within 7 days. In spite of repeated visit and request with the above named companion O.P. did not send any bricks. At the time of each visit O.P. requested to the complainant to wait for few days as “he was in trouble”. In this way complainant visited again and again to O.P’s Brick field, even his residence also. After 6 months on 23/05/2017 O.P. gave only 3,000 bricks to your complainant. O.P. did not deliver rest 17,000/- bricks till today. All cements got solidified, which complainant purchased for the construction. Iron rods rusted/damaged. Major part of the sand washed out and mixed with the mud. Complainant got a loss of Rs. 90,000/- for the damage of above building materials due to unfair trade practice of the O.P. For the purpose of visit with O.P. about 30 times, with two motor cycle, complainant spend at least Rs. 3,000/-. The cause of action was started on and from 20/11/2016 on ward. Hence complainant has initiated this case with the following claim and compensation and any other reliefs.  For due 17,000 bricks Rs. 1,10,500/-,  Interest for Rs. 1,10,500/- for 2 years @ 8 % p.a. Rs. 8,840/- Loss of building materials like cement, Iron Rod, sand etc. Rs. 90,000/- Travelling Expenditure Rs. 3,000/- for Mental agony and harassment Rs. 50,000/- Litigation Expenditure Rs. 10,000/-

Having received notice  the Opposite Party has resisted the claim of the complainant and filed written version stating inter alia that on 11.11.2016, the complainant came to this O.P. and proposed to buy 20,000/- bricks at the rate of 6,500/- (Rupees six thousand five hundred) per thousand bricks and gave an advance of 30,000/- (thirty thousand) only. On 12.11.2016, the complainant again came to the O.P. and paid the rest due amount i.e. Rs. 1,00,000/- (one lakh) to this O.P. It was settled between the parties that the complainant would take the bricks at various installments as and when the complainant needs the same. That after some days, the complainant informed this O.P. over mobile phone that there was some disputes/difference regarding the land matter in between co-sharers, for that reason, he was unable to take the bricks at that time and he would come to talk about the matter with this O.P. later on. Thereafter on 23.05.2017, the complainant came to the brick field of O.P. and intended to take 3,000 bricks and as per the requirement of the complainant, the O.P. at once delivered 3000 bricks and this O.P. committed that he is/was always ready to deliver the rest bricks if and when necessitated of the complainant. Thereafter the complainant again informed to this O.P. about his inability to take delivery of bricks and also informed that if and when land disputes will be finalized he will be informed this O.P. for delivering the bricks, But the complainant failed to inform for delivering the rest bricks up till now. All on a sudden this O.P. got the summons from this Ld. Forum and came to know that the complainant, without any reason and without giving any prior informing to this O.P., has filed this instant case in order to get wrongful gain. O.P. further submits that this O.P. is always ready and willing to deliver the rest 17000 bricks or is also ready to return the amount which was deposited by the complaint after deducting the amount of 3000 bricks, as per wishes of the complainant. In order to realize the malafide intention as well as to fulfill the ulterior motive of the complainant, the complainant did not give any notice prior to filling this case as the complainant is/was well known that this O.P. is/was always ready and willing to deliver the bricks or the rest amount as per wishes of the complainant. The main motto of the complainant behind preferring this case is very much illegal, baseless, malafide and to gain illegal profit. There is no element of unfair trade practices on the part of the O.P. or there is no deficiency of service which could be inferred upon the O.P. He has rendered all his good efforts which he could do in relation to the present matter of complaint. Under the circumstances, your honour would graciously be pleased to dismiss the present case and the O.P. is entitled to get cost for such a harassment and vexatious claim. And for that act of kindness, your O.P., as in duty bound, shall ever pray.

Points for determination are:

1. Is the case maintainable in its present form and in law?                                            2.   Is the Complainant entitled to the relief(s) as sought for?

Decision with reasons

Both the points, being inter related to each other, are taken up together for discussion  for sake of brevity and  convenience.

We have carefully perused the affidavit of the complainant and evidence produced by the parties. From the bundle of facts it appears that the case is maintainable in its present form and in law. On plain reading of the complaint and written version it is evident that indisputably on 11.11.2016, the complainant came to this O.P. and proposed to buy 20,000/- bricks at the rate of 6,500/- (Rupees six thousand five hundred) per thousand bricks and gave an advance of 30,000/- (thirty thousand) only. On 12.11.2016, the complainant again came to the O.P. and paid the rest due amount i.e. Rs. 1,00,000/- (one lakh) to this O.P. It was settled between the parties that the complainant would take the bricks at various installments as and when the complainant needs the same. on 23.05.2017, the complainant came to the brick field of O.P. and intended to take 3,000  bricks and as per the requirement of the complainant, the O.P. at once delivered 3000 bricks. The controversial facts are that banking on unfair trade practice op did not keep his words and failed to supply the bricks on demand causing substantial damage and harassment to the complainant. With a view to proving the said facts the complainant adduced oral testimonies of complainant himself as pw-1, one Banamali Jana as pw-2, Gautam Das as PW-3 and Sanatan Duyari as pw-4 .On the other hand op Pradip kumar Mondal has deposed as opw-1. Questionnaire was put to each other’s witness. The op has not been able to elicit any facts in his favour on putting the questionnaire to those witnesses of complainant. The op asserted that due to the inability to take delivery the bricks by the complainant himself on time for civil dispute of proposed land for construction there was delay. This assertion could not be established by the op as he was bound to do in law to uphold his contentions.  Rather, certificate issued by the Local Pradhan and versions of three independent witnesses nullify the contentions of the op. The acts of the op fall within the circumference of the mischief of unfair trade practice and deficiency of service.

From the above facts, circumstances and evaluated evidence on record, it appears that the complainant has been successful in proving his case in part. Coming to the reliefs claimed it appears that the liability of damages for iron rods and cement in large quantity  disproportionate to the delivery of bricks ,which were allegedly gathered by complainant can not be fixed upon the op as a whole, The projection of the site and the condition of the previous house show that  the complainant had no space for storing cement, he purchased the same at his own risk .There is no nexus of purchase of huge quantity of building material with the commitment of the op. As such op can not be asked to make good the loss as a whole. We think it would be just and proper if the op is directed to refund the then value of 17,000 bricks Rs. 1,10,500/-, Rs. 9,500/- for loss of building materials, Rs. 20,000/- for Mental agony and harassment to the complainant along with interest @ 8% p.a. from the date of filing of this case till full realization of the awarded amount with further Rs. 5000/- as litigation cost, within two months from the date of this order, Accordingly, both the points are decided in favour of the complainant.

Thus, the case succeeds.

Hence, it is

O R D E R E D

That CC/518 of 2018 be and the same is allowed on contest against the OP.

        The Opposite Party is hereby directed to pay a sum of Rs.1,40,000/- (Rs. 1,10,500/-the then value of 17,000 bricks, Rs. 9,500/- for loss of building materials ,Rs. 20,000/- for Mental agony and harassment) to the complainant along with interest @ 8% p.a. from the date of filing of this case till full realization of the awarded amount with further Rs. 5000/- as litigation cost, within two months from the date of this order; failing which the complainant will be at liberty to put this order into execution.

 Let copy of the judgment be supplied to all the parties free of cost.