C.F. CASE No. : CC/09/99
COMPLAINANT : Sunirmal Majumder
S/o Late Ahibhusan Majumder
Vill. Patulighat Road, Phultala
P.O. Bethuadahari, P.S. Nakashipara,
Dist. Nadia.
OPPOSITE PARTIES/OPs : 1) Proprietor,
Navakishan Bio Plantec Ltd.
Vill. Malancha Road near Pollishre Villa
Khargpur, P.O. Nimpura, P.S. Kharagpur,
Dist. West Midnapur
2) Proprietor,
Naba Kisan Bio Plantec Ltd.
SR Nagar opposite to Axis Bank
Hyderabad, 500038, Andhra Pradesh
PRESENT : SHRI KANAILAL CHAKRABORTY PRESIDENT
: SHRI SHYAMLAL SUKUL MEMBER
DATE OF DELIVERY
OF JUDGMENT : 14th February, 2012
: J U D G M E N T :
In brief, the case of the complainant is that on 01.06.09 he purchased 1000 segun plants from the OPs as per the proposal of the OP No. 1 for plantation on his land having an area of 99 satak at Nakashipara. The OP No. 1 also supplied 100 plants free of cost. Accordingly, the OP men under the supervision of OP No. 1 planted those plants on his land. The complainant paid Rs. 63,500/- as cost of one thousand plants to the OP No. 1 by bank draft. He also submits that all the plants expired within two months since the date of plantation, though he nursed the plants as per the direction of the OP No. 1. Thereafter, he intimated the matter to the OP No. 1 over telephone and requested him to pay compensation, but to no effect. Besides this, at the time of purchase on 02.06.09 the OP No. 1 handed over an agreement to him, inter alia, stating that the company would provide free service and replacement of damage plants up to two years from commencing of purchasing date on 01.06.09 without any cost from the customer who purchased the plants from the company and the total number of plants purchased one thousand. In spite of repeated demand, the OP No. 1 did not take any step for complying the terms of the agreement. So having no other alternative he has filed this case praying for the compensation as there was a gross deficiency in service on the part of the OPs.
The OP No. 1 has filed a written version in this case, inter alia, stating that the complainant purchased 1000 piece of teak saplings from this OP at a price of Rs. 63,500/- and those were planted on his land. At the time of plantation, this OP categorically stated that he had no liability or responsibility for fluctuation of growth and yield of crop of the plants which practically depend upon quality and suitability of soil. Without making any soil test and preparing the ground for cultivation the complainant planted those teak plants on his land. So the plants were not grown sufficiently as expected. In fact, this OP advised him not to allow water stagnated in the land, but the complainant did not care about it. Even after that as per terms and conditions, this OP supplied 100 pieces of fresh teak saplings against dying saplings and all those trees are still standing in the said land. He also submits that till now it would be found that 1080 of saplings are standing on the land in good condition as has been observed by the expert of OP the company. The complainant did not at all incur any loss as he is not an agriculturist. In the land at which the teak are planted is not an agricultural land. With ill motive he has filed this case in order to grab money from the OP on the plea of damage of 1000 saplings. This OP has no negligence or deficiency in service on his part in supplying those saplings to the complainant. So the complainant has no cause of action to file this case against him and the same is liable to be dismissed against the present form. He has also alleged that this Forum has no territorial jurisdiction to try this case and on this point this case is not maintainable also.
POINTS FOR DECISION
Point No.1: Has the complainant any cause of action to file this case?
Point No.2: Is the case maintainable in its present form and nature?
Point No.3: Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
All the points are taken up together for discussion as they are interrelated and for the sake of convenience.
Previously this case was heard by this Forum and accordingly the case was decreed in favour of the complainant. Being aggrieved by the findings of this Forum the OPs preferred an appeal and the Hon’ble Appellate Forum set aside the judgment and sent back the case on remand for fresh trial after taking evidence on both sides and to decide the maintainability point on jurisdiction ground.
On a careful perusal of the petition of complaint along with the annexed documents and the written version filed by the OPs along with oral and documentary evidence laid down by both the parties and also after hearing the arguments advanced by the ld. lawyers for both sides it is available on record that this complainant purchased 1000 teak saplings from the OP No. 1 on 01.06.09 at a price of Rs. 63,500/- vide ‘Annexure – 1 & 2’. Complainant paid the money by bank draft vide ‘Annexure – 3’. The purchase of the teak plants at a price of Rs. 63,500/- by the complainant is also admitted by the OP No. 1 in the written version filed by him as well as in his oral evidence also. The complainant’s specific case is that on the supervision of the OP No. 1 his men planted those teak saplings on his land at Nakashipara and as per his advice this complainant nursed the plants. In spite of that all the plants expired within two months since the date of plantation which he duly communicated to the OP No. 1 over telephone. But no step was taken by the OP No. 1 for replacements of those plants as per the commitment vide ‘Annexure – 4’. OP No. 1 has categorically stated that all the saplings were planted by the complainant himself in his land and he only sold those plants for his plantation. This is not much material in this case, but the moot question is whether there is any deficiency in service on the part of the OP No. 1 as alleged by the complainant. ‘Annexure – 4’ is the document signed by the OP No. 1 who delivered the complainant on 02.06.09. This ‘Annexure – 4’ document speaks that “This is certify to Mr. Sunirmal Majumder, S/o Ahi Bhusan Majumder at Bethuadahari, P.O. Bethuadahari, Dist. Nadia, State – West Bengal, Pin No. 741126 that company will provide free service and replacement of damage plants up to 2 years from commencing to purchasing date 01.06.09 without any cost from the customer who has purchased plants from our company. Total No. of plants purchased 1000 (one thousand).” This document is a vital one in deciding the case as from this document it is available that the OP No. 1 at the time of selling one thousand plants to the complainant categorically admitted that he would make replacement and free service of damage plants up to two years from commencing of purchasing date without any cost from the customer who purchased the plants from the company. In the written version at ‘Para – 10’ this OP No. 1 has categorically stated that “Even after that as per terms and conditions this OP supplied 100 piece of fresh teak sapling against dying sapling and all those trees are still standing in the said land.” In his evidence as OPW-1, he has also submitted this statement. Even in the written version it is stated by him that till now it would be found that 1080 No. of saplings are standing in the said land in good condition as has been observed by the expert of the OP Company. But he has not filed his expert’s report on this point. Rather from the statement of the written version as well as the evidence of OPW-1 and considering the evidences of PW 1 & 2, we hold that the saplings planted on the land of the complainant are not at all in living condition at present. Death of 100 plants is already admitted by the OP No.1 in his written version as well as evidence. He has also stated that he replaced those 100 dead plants by supplying equal No. of fresh plants. But to that extent no document is filed by him. No other OPW is examined on his side supporting his contention. On the other hand, PW-1 is the complainant himself and PW-2 is another independent witness who has stated categorically that all the plants were damaged in the land of the complainant within two months since the date of purchase. He has also stated that the plants were planted by the OP men. OP has stated in his evidence that the plants were supplied at his office at Kharagpur and whether those were planted by the complainant on his land is not known to him. But at the same time he has stated that in the land of the complainant without making any soil test and preparing the ground for cultivation the complainant planted those teak plants on his land though the OP advised him not to allow water stagnated in the land. He has also stated in the written version that the growth and yield of crop of the plants depended upon quality and suitability of soil, water, cultivation and climate. So we hold that without examining the land he cannot make comment about the status of land. From this statement, it is clear that prior to plantation of teak saplings he or his men examined the land. From the evidences on both sides, we are of the clear view that the complainant duly intimated the OP No. 1 about the death of the plants as it is categorically admitted by the OP in his written version at ‘Para – 10’ that he supplied fresh 100 piece of fresh teak sapling against dying sapling and all those trees are still standing on the said land. We have already discussed that no other document or evidence is filed by the OP in support of his contention.
In view of the above discussions and considering the facts of this case our considered view is that the complainant has become able to establish that 1000 teak saplings supplied by the OP which were planted on his land expired within a period of two months since the date of purchase. It is also established that in spite of repeated demand the OP No. 1 did not supply fresh teak sapling to the complainant for fresh plantation on his land as per the terms and conditions laid down in ‘Annexure – 4’ signed and delivered by the OP No. 1. So it is a gross deficiency in service on the part of the OP No. 1 for non-supplying fresh teak plants to the complainant. As the complainant has become able to prove his case, so his entitled to get the reliefs as prayed for.
Ld. lawyer for the OPs submits that this case is not maintainable as this Forum has no jurisdiction to try this case. This is his submission also that his office is situated at Khargpur, Dist. West Midnapur and Head Office is in the Hyderabad. He supplied the teak sapling at the office of the Kharagpur, naturally the cause of action arose within the jurisdiction of West Midnapore which is a proper Forum for filing this case. On the other hand, it is the complainant’s categorical assertion that the cause of action arose within the jurisdiction of this Forum, so he has rightly filed this case before this Forum. Complainant submits that the teak saplings were planted on his land situated at Kanthalia, P.S. Nakashipara, Dist. Nadia which is not challenged by the OP also. From ‘Annexure – 3’ it is available that the complainant made payment to the OP from Bank draft issued by the State Bank of India, Khidirpur Sub-division Branch, Nadia on 01.06.09 and 03.06.09. Section 11(2)(c) provides that “A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,— the cause of action, wholly or in part, arises.” Considering the facts of this case and the documents filed by the complainant, we find that the cause of action took place within the jurisdiction of this Forum undoubtedly. In this connection ld. lawyer for the complainant has cited a ruling from 1 (2008) CPJ page No. 404 NC where the Hon'ble National Commission decided regarding jurisdiction that “Territorial – Machinery to be installed at Bilaspur – Cause of action arose at Bilaspur – Clause confining jurisdiction not applicable for consumer Fora is not Court – Difference in provisions of Section 11, C.P. Act and Sections 15 to 20, CPC regarding place of jurisdiction – Respective State Commission had jurisdiction to entertain complaint.”
He has cited another ruling from 1 (2008) CPJ 452 (NC) where it is decided by the Hon’ble National Commission that “Jurisdiction could be conferred only where cause of action would arise.” Ld. lawyer for the complainant has cited another ruling from II (2008) CPJ page 174 (NC) where it is decided “Jurisdiction – Territorial – Dealer selling vehicle at Vidisha, which falls within their territory of dealership – Plea regarding lack of jurisdiction rejected – Respective Fora has jurisdiction to adjudicate.”
Ld. lawyer for the complainant has cited another ruling form (2010) 3 WBLR (SC) 58 where the Hon’ble Apex Court has decided “It is well settled that the expression ‘cause of action’ means that bundle of facts which gives rise to a right or liability. In the present case admittedly the fire broke out in the godown of the appellant at Ambala. The Insurance Policy was also taken at Ambala and the claim for compensation was also made at Ambala. Thus no part of the cause of action arose in Chandigarh.”
Ld. lawyer for the complainant has cited another ruling from IV (2009) CPJ page 113 where the Hon’ble Himachal Pradesh State Commission decided that, “Jurisdiction – Territorial – Part of cause of action arose within jurisdiction of Forum, Kangra – Respective Fora had territorial jurisdiction to adjudicate.”
On a careful perusal of the facts of this case along with the oral and documentary evidences on both sides and going through the above cited rulings our considered view is that the cause of action of this case arose within the jurisdiction of this Forum as the complainant’s teak saplings were planted on the land of the complainant situated at Nakashipara, Dist. Nadia. The complainant made payment by demand draft issued by State Bank of India, Khidirpur Branch, Dist. Nadia. So we have no hesitation to hold that the case is maintainable in its present form and nature and this Forum has jurisdiction to try this case. Besides this, previously this point of maintainability of jurisdiction ground was agitated by the OPs and after hearing both sides an order was passed on 26.02.10 vide order No. 8. In that order it was observed by this Forum that the Forum had jurisdiction to try this case in its present form and nature and the petition filed by the OPs was dismissed on contest without any cost. But the OPs did not prefer any revision against that order No. 8 dtd. 26.02.10.
In the case Vikash Motors Ltd. vs. Dr. P.K. Jain (1999)6 SCC 548, it was decided that, “The objection regarding jurisdiction was decided by the District Forum on 26.07.1991, against which no appeal or revision was filed and that apparently became final. After participating in the proceedings and being satisfied with the verdict regarding jurisdiction, it is too late for the appellant to urge, at this stage, that the District Forum had no territorial jurisdiction to entertain the complaint and pass orders under the Consumer Protection Act. The appellant is estopped from raising the plea of jurisdiction at this stage, on the ground that he cannot be permitted to both approbate and reprobate after submitting and acquiescing to the territorial jurisdiction of the District Forum.”
On a careful perusal of the above cited ruling we find that in the instant case the jurisdiction point is already disposed of by this Forum on 26.02.10 vide order No. 8 after hearing both the parties, but no appeal was preferred by this OP against this order. So our considered view is that the Forum has jurisdiction to try this case and the case is quite maintainable in its present form and nature. As the complainant has become able to prove his case, so he is entitled to get a decree as prayed for. In result the case succeeds.
Hence,
Ordered,
That the case, CC/09/99 be and the same is decreed on contest against the OPs. The complainant is entitled to get Rs. 63,500/- as price of the teak saplings along with Rs. 5,000/- as compensation for deficiency in service and mental harassment caused to him along with Rs. 2,000/- as litigation cost, i.e., in total Rs. 70,500/-. The OP No. 1 is directed to pay the decretal amount of Rs. 70,500/- to this complainant within a period of one month since this date of passing this judgment, in default, the decretal amount will carry interest @10% per annum since this date till the date of realization of the full amount.
Let a copy of this judgment be delivered to the parties free of cost.
