DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD
Dated this the 29th day of November 2014
Present: Smt.Seena.H. President
Smt.Shiny.P.R. Member
Smt.Suma.K.P. Member
Date of filing : 11/06/2013
CC No.98/2013
Ahammed Ansari
Proprietor
Green Earth Paper Product
Kuttikode,
Thrikkadeeri,
Ottapalam Taluk,
Palakkad - Complainant
(By Adv.Ragesh.N)
Vs
Proprietor
Mid Way Marketing
Choorakaode Post,
Vallapuzha,
Palakkad - Opposite party
(By Adv.N.Sreeraj)
O R D E R
Order by Smt.SEENA.H PRESIDENT
Complaint in brief:-
During the month of May 20012, the complainant approached the opposite party for the supply of two JBZ-A-12 Automatic Paper Cup Machine with two mould and the opposite party agreed to supply the same. As per the terms entered into the opposite party had given their quotation dated 7/5/2012 for the supply of JBZ-A-12 automatic paper cup machine to the complainant. Thereafter as per the payment terms mentioned in the quotation, the complainant had paid the price of the machine and the opposite party had supplied the machines to the complainant. The complainant had paid an amount of Rupees 28,00,000/- to the opposite party towards the total price of the machine through his bank account maintained in Punjab National Bank, Cherpulassery Branch.
Soon after the installation it was noticed that the opposite party had supplied two old assembled machines of ZB-D model automatic paper cup machines, which is very cheap and poor in its performance and its costs amounts to only rupees Ten lakhs for two machines. The number of paper cup produced in the ZB-D model machine is lesser in JBZ-A-12 model machine. The opposite party has not complied with the terms as agreed as per his quotation and the same had affected the business of the complainant adversely and incurred him huge loss. Eventhough the complainant had made payment of Rs.28 lakhs to opposite party towards the total price of the machine they supplied, they had never issued a cash bill for the amount they received. Since the complainant is having SSI registration he was eligible for subsidies from government under entrepreneur support scheme (ESS) and various other schemes of government. A cash bill was essential to apply for availing the subsidies and other financial supports from the side of government and District Industries Centre. Even after repeated demands from the complainant the opposite party had never issued a cash bill in favour of the complainant. Thus complainant had lost all the government subsidies for which he was eligible only because of the fact that he was unable to produce the cash bill of the machines in time before the authority concerned. The complainant was unable to produce the cash bill before the concerned authorities and he had lost an amount of Rs.3 lakhs towards the start up money, Rs.28 lakhs towards margin money and other government subsidies for an amount of Rs.4 lakhs for which he was eligible to receive if he had produced the cash bill before the concerned authority in time. The above said act of the opposite party caused the complainant to incur a loss of Rs.9,80,000/-. This act of opposite party is a clear case of deficiency in service and unfair trade practice. At last, the complainant had issued a lawyer notice dated 20/3/2013 through his counsel to the opposite party. Eventhough the opposite party received the said notice, there was no reply. Hence filed this petition seeking an order directing the opposite party to replace the machine with a new machine, pay an amount of Rs.9,80,000/- with interest @12% and pay an amount of Rs.4 lakhs towards compensation and supply of substandard machine.
Opposite party filed version contending the following:
According to opposite party, the complainant will not come under the purview of consumer under the Consumer Protection Act 1986, as the complainant himself admits in the complaint that it was a registered company under small scale industry and obtaining benefit from it. Moreover the complainant though obtained a quotation from the opposite party the complainant stated before the opposite party that for obtaining loan from the bank they need a quotation of fetching higher value and they only need a second hand machine. They said they required a second hand machine because they want to show that machine to the bank employees when they come for inspection. The complainant also said that eventhough the amount will be paid through bank to the complainant, opposite party had to return Rs.15 lakhs to the complainant. Accordingly opposite party had given back Rs.15 lakh to complainant as per their request on 4/8/2012 itself. At that time itself the opposite party had said that they cannot issue any bill over the product for Rs.28 lakhs as it will be illegal to give a bill for a second hand product for higher value. Complainant then admitted that they do no require any bill for the product and requested for delivery of the product, hence the opposite party delivered five second hand machines for Rs.12,87,500/-. On 6/9/2012 two second hand product was given to the complainant for Rs.2,49,400/- each and on 22/10/2012 three second hand product was given to the complainant for Rs.7,87,500/- and bill was also given to the complainant for the same and a copy of the said bill was also submitted by the opposite party before the sale tax department. If the complainant was expecting a fresh new product from the side of opposite party from the first site of the product itself it will be clear that it is only a second hand product and hence complainant will not seek for a bill from the opposite party but will directly send a notice or will file a complaint. According to the opposite party, complaint is liable to be dismissed.
The evidence adduced by the parties consists of their respective chief affidavits. Ext.A1 to A4 marked on the side of complainant. Ext.B1 to B7 marked on the side of opposite party. Witness on the side of the complainant examined as PW1. Opposite party cross examined as DW1.
Heard both parties and has gone through the evidence on record. It is an admitted fact that opposite party has given a quotation for two machines for Rs.28 lakhs. The stand of the complainant is that opposite party has not supplied the model as per the quotation and also what was supplied was too old ZB-D model which cost only Rs.10,000/-. Further no cash bill was provided for Rs.28 lakhs. According to opposite parties they have not supplied the machine as stated in the quotation, but 5 second hand machines were supplied as per the request of the complainant and bills were also issued for the same.
It is true that a quotation (Ext.A2) was given by the opposite party for JBZ-A12 fully automatic paper cup machine with two mould and accessories for each machine. But there is no evidence on record to show that purchase order was given by the complainant for the supply of the same. So there is no evidence to show that the complainant has ordered the model alleged in the complaint.
According to the complainant he has paid Rs.28 lakhs to the opposite party. Opposite party though admitted the receipt of Rs.28 lakhs, has stated that Rs.15 lakhs was returned on the very next day to the complainant. Complainant wants the opposite party to issue a bill for Rs.28 lakhs for availing subsidy for which opposite party was not amenable as he has only supplied second hand machine worth Rs.13 lakhs. The payments terms as per Ext.A2 quotation is reproduced below:
Payment terms
1.50% Advance payment alongwith Purchase Order
2.Balance 50% within 60 days after receiving purchase order
It is not understood why the complainant has waived his option to pay 50% of the amount later. Opposite party has stated that he has withdrawn Rs.15 lakhs from the bank to hand over to the complainant. Ext.B5 reveals the fact that cash was withdrawn by opposite party. We admit the contention of the complainant that Ext.B5 will not evidence the fact that he has received the said amount, but on going through Ext.A3 lawyer notice it is seen that the only grievance of the complainant is with respect to non issuance of cash bill for Rs.28 lakhs. It is to be noted here that complainant has a case that the machine supplied to him is worth only Rs.10,000/- If that be so, complainant would definitely demand for the excess amount received by the opposite party. So we are of the view that the case of the opposite party that he has returned Rs.15 lakhs in a more probable one. Further opposite party has produced Ext.B1 series cash bill as well as Ext.B2 & B4 tax statements for the delivery of the second hand machine.
Further complainant has a case that opposite party has supplied too old assembled machine instead of a brand new one. We have gone through Ext.C1. The condition of the machine as narrated in Ext.C1 is as follows:
The machine seems to be old and it is bearing a model name of ZB-D model (Made in China), Pal paper cup machinery Tamilnadu, India. The design of the machinery is unable to be evaluated since lots of important components are not available in the machine. It is to be kindly noted that with the available parts in the said machine, the cup manufacturing process is not feasible in this point of time.
It is quite difficult to evaluate the exact cost of the machinery installed in the inspection site, since the machine is aged and does not have important parts, like motors, drive control, relays, digital instrument panel, paper stand, counting sensor, main die, die for cutting bottom part of cup, knurling for making side grew, support stand, knurling motor etc., Thus the machine available in the inspection site is not complete in all respects. In the present situation the machine may be scrapped. Also the machines in the inspection site, model ZB-D is not at all working, so the number of cups manufactured by these machines may not be analyzed.
Commissioner has also provided a table showing lack of several components in the machine which as essential for the functioning of the machine.
On going through the description of the machines provided by the expert commissioner, we understand that even an ordinary person could understand that the machine is a second hand one. The complainant being a person experience in the field ought to have refused to accept the same at the time of installation itself. As per Ext.A4 series, the letter addressed by the GM, District Industries Centre, Palakkad to the Branch Manager, PNB. GM has stated that the complainant has 6 years working experience in the relevant field.
On going through the entire evidence on record, we seriously doubt the genuiness of the complaint. Also complainant miserably failed to prove a case in his favour.
In the result complaint dismissed.
Pronounced in the open court on this the 29th day of November 2014.
Seena H
President
Shiny.P.R.
Member
Suma.K.P
Member
APPENDIX
Exhibits marked on the on the side of complainant
Ext.A1 – Photocopy of bank pass book PNB of the complainant
Ext.A2 – Photocopy of quotation dated 7/5/12 issued by opposite party
Ext.A3 – Copy of lawyer notice dated 30/3/13 issued to opposite party
Ext.A4 series – Industries office Office note alongwith documents of application of the complainant
Exhibits marked on the side of opposite party
Ext.B1 series – Bill issued to the complainant dated 6/9/2012 2 nos.
Ext.B2 – Particulars of the bill submitted before CT office Pattambi dated
1/2/2013
Ext.B3 – Bill issued to the complainant dated 22/10/2012
Ext.B4 – Particulars of the bill submitted before CT office Pattambi dated
1/2/2013
Ext.B5 – Bank statement of opposite party from 1/8/2012 to 4/8/2014
Ext.B6 – Certificate of registration of KAS paper products in the name of
complainant
Ext.B7 – Certificate of registration of Mid Way Marketing in the name of
complainant
Witness examined on the side of complainant
PW1 – Vinod.G
Witness examined on the side of opposite party
DW1 – Abdul Salam.K
Commission Report
Ext.C1 – Dr.Vinod
Cost allowed
No cost allowed
