Telangana

Mahbubnagar

CC/09/96

Dhanvantari College of Pharmacy, Rep. by its Director, Dr.K. Aravind - Complainant(s)

Versus

Raju S/o Chinnu Lal, O/c Business - Opp.Party(s)

11 May 2011

ORDER

BEFORE THE DISTRICT CONSUMER FORUM AT MAHABUBNAGAR

     Wednesday, the 11^th day of May, 2011 

                                                           Present:- Sri P. Sridhara Rao, B.Sc., LL.B., President

                                                                            Sri A. Veerupakshi, B.A., LL.B., Member        

                    Smt.D.Nirmala, B.Com., LL.B.,Member

C.C.NO. 96 Of   2009

Between:-

Dhanvantari College of Pharmacy, Tirumala hills, Appannapally village, Mahabubnagar Rep. by its director Dr. K. Aravind.

                                                                                                                                                                     … Complainant

And

Raju S/o Chinnu Lal, aged major, Occ: Business & Owner of Ambica Furniture Shop, Opp: T.V. Tower, Mahabubnagar.

                                                        … Opposite Party

 This C.C. coming on before us for final hearing on 05-05-2011 in the presence of Sri C. Rajender Kumar, Advocate, Mahabubnagar on behalf of the complainant and Sri C. Rajeev Kumar, Advocate, Mahabubnagar for the opposite party and the matter having stood over for consideration till this day, this Forum made the following:   

                                                                                                       O R D E R

 (Sri P. Sridhara Rao, President)

1.  This is a complaint filed by the complainant under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite party to provide four almarahs of 20 guage as ordered by the complainant on 11-07-2009 or refund the amount of Rs.6,000/- with interest of @18% from 11-07-2009 till its realization and to pay a sum of Rs.20,000/- towards compensation and also costs of the complaint.

2.  The averments of the complaint in brief are that:-  The complainant is a recognized institution. The opposite party is the owner of furniture shop namely “Ambica Furniture” situated opposite to T.V. tower at Mahabubnagar.  On 11-7-2009 the complainant approached the opposite party and ordered for four almarahs of 6 ½ feet height with a metal sheet of 20 guage of which one almarah is with locker model for college of Pharmacy.  The opposite party accepted the order and agreed to provide four almarahs with the above said specifications to a total cost of Rs.14,800/- @ Rs.3,700/- each.  Thereupon the complainant paid a sum of Rs.6,000/- as advance on the same day i.e., on 11-7-2009 and agreed to pay the balance of Rs.8,800/- at the time of delivery of almarahs.  While accepting the said order the opposite party has issued an order form No.455 dated  11-7-2009 and he orally informed the complainant to come on 26-7-2009 to take delivery of the above specified four almarahs. Accordingly when the complainant approached for taking delivery of the items the opposite party asked him to come after 15 days on the ground that the same are not manufactured.  When the complainant again approached the opposite party on 12-8-2009 to take delivery of the items the opposite party again asked him to come after two days on the same ground that the items are not got ready.  After two days when the complainant again approached the opposite party for the said almarahs the opposite party showed four almarahs to him.  When the complainant doubted about the guage of the almarahs as 22 or 24 guage the opposite party said that the guage of the almarah is 20 guage only.  When the complainant asked to measure the guage of the almarahs the opposite party bluntly refused to measure the guage of the almarahs stating that he is not having instrument to measure the guage of almarahs in his shop and rashly answered that he is having the said almarahs which are shown to the complainant and he has to take the almarahs which are available in the shop at that time and he is not going to give back the amount of Rs.6,000/- paid towards advance.  Due to the attitude of the opposite party and non supply of 20 guage metal sheet almarahs for the institution the complainant has suffered a lot as there is urgent need of almarahs for the institution and the opposite party is bound to supply the almarahs of 20 guage to the complainant or to return the amount given in advance of Rs.6,000/- with interest of 18% per month to the complainant and Rs.20,000/- as compensation towards the mental agony suffered by the complainant. At last the complainant got issued a legal notice to the opposite party on 30-9-2009 requesting him to supply the four almarahs of 20 guage as ordered or to refund the amount of Rs.6,000/- which is paid in advance at the time of order with interest of 18% per month from 11-7-2009 along with compensation of Rs.20,000/- to the complainant.  The opposite party having received the said notice neither replied to the same nor paid the amount to the complainant.  The said acts on the part of the opposite party amount to deficiency of service.  Thus the present complaint is filed for the aforesaid relief.     

3. On the other hand, the opposite party filed counter denying the averments of the complaint and stated that though he is the owner of shop “Ambica Furniture” but the complainant never approached this opposite party either on 11-7-2009 or at any time before or after and never placed any such order and not paid any such sum of Rs.6,000/- towards any advance as alleged.  It is further stated that the order form filed by the complainant neither belongs to this opposite party nor any of his employees and it is a fabricated document created for the sole purpose of filing the present complaint, that in fact this opposite party sells only ready made furniture like sofa sets, dining tables, cots, chairs, almarahs etc., and he is not a manufacturer, that this opposite party does not accept orders or take advances for delivery of furniture, that the goods are shown and sold to the customers that are readily available in the shop on the basis of cash and carry by this opposite party.  It is further stated that this opposite party did not receive any notice from the complainant and the so called acknowledgement is fabricated to give credence to the case of the complainant as such there is no cause of action for the complainant to file the present complaint and therefore the complainant is not entitled for any relief sought for by him and therefore the complaint is liable to be dismissed with costs.

4. Thereupon the complainant in support of his claim filed his affidavit evidence and got marked Exs.A-1 to A-7.  On the other hand, the opposite party in support of his contentions filed his affidavit evidence and got marked Ex.B-1. 

5.  The points for determination now are: 

       (i)      Whether there is any deficiency on the part of the opposite party in rendering service to the complainant as alleged?

     (ii)       Whether the complainant is entitled for the relief sought for by him? 

     (iii)      To what effect? 

6. Point Nos.1 and 2:- It is the case of the complainant that when the college was in need of some almarahs he went and placed order with the opposite party on 11-7-2009 for supply of four almarahs of 6 ½ feet height with metal sheet of 20 guage of which one almarah is with locker model and paid a sum of Rs.6,000/- towards advance agreeing to pay the balance amount of Rs.8,800/- at the time of delivery of almarahs, that the opposite party having accepted the same accordingly issued Ex.A-1 order form dated 11-7-2009 and at last he not only failed to fulfill his promise but also refused to refund the advance amount.  On the other hand, it is the contention of the opposite party that the complainant never approached him at any time and never placed any such order and not paid any such advance amount to him, and that Ex.A-1 the so called order form is a fabricated one created by the complainant in order to suit his claim.  To consider the said aspect a perusal of the recitals of Ex.A-1 is just and essential.  A careful perusal of the recitals of Ex.A-1 clearly goes to show that it is an order form for supply of four almarahs of 6 ½ feet height with 20 guage and one piece should be with locker model.  But Ex.A-1 order form is silent about the name of the person or institution who placed such order.  When there is a truth in the case of the complainant the complainant while receiving the so called order form from the opposite party he being an educated person ought to have insisted the opposite party to mention his name or his institution in the relevant column of the said order form.   It is to be kept in mind that the present complaint is filed basing on the said order form  Ex.A-1.  When the plea of the opposite party is of complete denial including the genuineness of Ex.A-1 order form the burden lies on the complainant to establish his contentions that the opposite party issued the said order form Ex.A-1 having received a sum of Rs.6,000/- as against the total amount of Rs.14,800/- towards costs of four almarahs.  But the complainant except his self styled testimony did not produce any other proof in that regard.  It is the contention of the complainant that after placing order for the supply of the items and making payment of Rs.6,000/- towards advance for the same they accordingly mentioned in the accounts of their college and the accounts were also audited.  During the pendency of the case the opposite party filed I.A.No.249/2010 to direct the complainant to produce its books of accounts i.e., cash/day book and ledger for the relevant period.  On allowing the said application and as per the direction the complainant produced some attested copies of their books of accounts but they are not in accordance with the requirement sought for by the opposite party to know about the truth and correctness of the case of the complainant.  So, in the absence of any positive proof the complainant cannot take shelter under the guise of Ex.A-1 basing on which the present complaint is filed alleging deficiency against opposite party. 

 

7. Even assuming for a moment that the case of the complainant that he placed order with the opposite party for supply of four almarahs in question and paid Rs.6,000/- towards advance and the opposite party issued order form as under Ex.A-1 is true and correct and the opposite party had not fulfilled his promise as agreed that itself shows that the complainant made only a part payment towards advance but not the entire total consideration and furthermore the goods are at last not supplied or delivered to him by the opposite party.  In a decision reported in II (2010) CPJ 547 (C. Chandra Shekar Vs. Telco Construction Equipment Company Limited & Others) it is held that Sections 57 and 58 of Sale of Goods Act make it abundantly clear that in case of breach of contract for sale of goods the remedy for specific performance or recovery of sale consideration lies in the civil courts. That was the case where the complainant therein placed order with the opposite parties for purchase of some machinery but the main opposite party did not supply the said machinery despite receiving the entire sale consideration.  When the complainant took a plea that such act amounts to deficiency of service, the Hon’ble A.P. State Consumer Disputes Redressal Commission, Hyderabad further observed that the contract was for purchase of machinery viz., goods and in case of such contract for sale of goods a complaint can be filed under C.P. Act, only if the goods supplied from any defect or for the rendering of any service so as to attract the concept of deficiency in service.  In the case on hand it is not the case of the complainant that the goods supplied by the opposite party suffer from any defect. A perusal of the record clearly goes to show that admittedly the goods are not supplied by the opposite party or not taken delivery of the same by the complainant and furthermore the complainant had not even paid the entire sale consideration.  So, in view of the principles laid down in the decision the complainant can file the complaint under C.P. Act only if the goods supplied suffer from any defect or for the rendering of any service so as to attract the concept of deficiency in service.  As the goods in the case are admittedly not at all supplied or delivered to the complainant and there is no deficiency alleged, at the most the complainant can seek his remedy through a competent civil court but not through this Forum.  Therefore, we hold that it is a breach of contract simplicitor and this Forum has no jurisdiction to entertain the present complaint, and thus the complaint is liable to be dismissed as not maintainable. Both the points are answered accordingly.       

8. Point No.3:- In the result, the complaint is dismissed in toto.  In view of the facts and circumstances both the parties have to bear their own costs. 

        Typed to dictation, corrected and pronounced by us in the open Forum on this the 11^th day of May, 2011.    

 

   I agree                                              I agree                                                        

 

 MEMBER                                MEMBER                           PRESIDENT                      

Appendix of evidence

      List of Witness examined

On behalf of Complainant:                                                             On behalf of Opposite Party:   

- Nil -                                                                                                         - Nil -

                                       

List of documents marked:-

On behalf of Complainant:-    

Ex.A-1: Order Form, Dt.11-7-2009.

Ex.A-2: Office copy of legal notice, dated 30-09-2009.

Ex.A-3: Served acknowledgement card dated 01-10-2009.

Ex.A-4: Original Authorization letter, dated 10-10-2009.

Ex.A-5: Attested copy of proceedings of the JNTU, Hyderabad, dt.30-10-2008 showing the affiliation to the complainant                                         institution.

Ex.A-6: Attested copy of proceedings of All India Council for Technical Education, Delhi, dated 30-06-2008 showing the approval of              the complainant institution.

Ex.A-7: Attested copy of Cash Book No.1 for 2009-2010.

On behalf of OP.:                  

Ex.B-1: Original Invoice book.                                                                                                    

                                                                                                   

 

                                                                                 PRESIDENT                                                                                                                                                                                    

Copy to:-

1. Sri C. Rajender Kumar, Advocate, Mahabubnagar on behalf of the complainant.

2. Sri C. Rajeev Kumar, Advocate, Mahabubnagar for the opposite party.