FINAL ORDER / JUDGEMENT

Sri. Apurba Kr. Ghosh  ……….President

The Complainant has filed this case against the O.P. and praying for the following order / reliefs:-

1. Direction against the O.P. to refund amount paid by the complainant to the tune of Rs. 22,000/-
2. Direction against the O.P. to pay compensation of Rs. 70,000/- to the complainant for mental agony and harassment caused by the OP.
3. Cost of legal proceedings.

            BRIEF FACT OF THE COMPLAINT

1. Complainant has stated that he paid a sum of Rs. 22,000/- by cheque No. 004116 to the OP for publication  his book title “Itihass-O-Oitigya Kamrup,  Coochbehar”on 30.12.2014 on condition that the OP would publish his book within one month and said 110 copies  though he mentioned 60 copies  in the receipt. ( Xerox copy of money receipt dt. 30.12.2014 and Bank statement are marked as annexure-A) page 1 to 3.
2. That, the OP did not publish his book and delivered him till the date of filing of this case, he met him on several occasions but he only give him date after date for publication of his book but he did not publish any book.
3. The complainant has further stated that he tried to communicate with him on several occasions over telephone and SMS through Telephone No. 9474585415 to 9434044936 but he did not respond.
4. That, the complainant sent him a letter on 22.12.2016 claiming the full amount of Rs. 22,000/- along with compensation. (Copy of letter is annexed as annexure ‘B’ along with acknowledgement card, postal receipt).
5. That, in spite of receiving letter the OP did not respond or communicate with him and he try to communicate with him over Telephone and SMS but he did not respond.

In spite of complaint the complainant has filed following documents:

1. Xerox copy of money receipt dt. 30.12.2014, Bank statement (Annexure-A) Page No. 1 to 3.
2. Xerox copy of letter sent to the OP on 02.12.2016, AD Card dt. 30.12.2016, Postal receipt dt. 29.12.2016 (Annexure-‘B’ Page no. 1 to 4).

Notice was sent from this Commission to the OP. On receipt of notice, the O.P. has appeared before this Commission through Vokalatnama, filed written version, denied all the material allegations of the Complainant. In the written version the OP has stated that, the complaint is not maintainable in its present form either in law or in fact/ the complaint is liable to be dismissed for suppression of material facts/ the complainant did not come before this commission with clean hands/ the complainant  is guilty with his own wrong and is not entitled to get any relief as prayed for/the complainant is not a consumer of the goods and the OP is not a seller of the goods/the relationship between the complainant and the OP is govern by law of contract  which does not recognize any mental agony suffering as a head of damages for breach of contract. The OP has further stated that the statement made in Para no. 1 is denied by the him and the complainant issued a cheque being No. 004116 which was duly acknowledged by the OP but the said cheque was not issued only for publishing  the book of the complainant under the title “Itihass-O-Oitigya Kamrup,  Coochbehar” but the complainant  on 30.12.2014 had purchased few books from  the OP worth  Rs. 5368/- vide bill not. 288 dt. 30.12.2014 and that is why the complainant had not paid Rs. 22,000/- solely for the purpose of publication of books within the period of one month.

OP is further stated that he never stated that 110 copies of book will be published within one month and said submission of the complainant has not been written anywhere and on 30.12.2016 when the  complainant paid a sum of Rs. 22,000/- he requesting the OP that he needs 5 copies of the said books within 7 days for his personal purpose and the OP hand over 5 copies of the said books within 7 days to the complainant which was duly acknowledge by him.

It is also stated in the W/V by the OP that he runs his business under the name and title National Library having ISBN registration from the competent authority for publishing any book of any author/writer and in all event the author/ writer supplies Manuscript stored in a flash drive like (CD, pen drive etc.) to the publisher and the publishers has no power and authority to change/tamper anything in the manuscript.

The OP has further stated in the W/V that the complainant after receiving 5 copies of the book came to the OP and alleged that the said 5 copes was wrongly printed and published which contained full of mistakes/errors in the said books and he decline to take other copes from the OP and in the meantime the OP sent the flash drive given by the complainant to a reputed printing house namely “Kasturi Printers & Publishers”, Guwahati and there is no scope to stop the printing of the said book as requested by the complainant. The OP has also denied statement made in Para No. 2 and he never informed that the OP for the publication of the book and the complainant has suppress the entire facts in his written complaint and there is no deficiency in service on the part of the OP. The OP has further stated that the statement made in Para No. 3, 4 & 5 are denied by the OP and on 22.12.2016 the complainant sent letter which is self contradictory as there was no such agreement in between the complainant and the OP and there was no such agreement that in case of failure of publishing book of the complainant the complainant will be entitled for the amount paid by him along with interest and in the said letter the complainant has stated that a money receipt of Rs. 17000/- was given to the complainant by the OP but in his written complaint it is mentioned that a sum of Rs. 22,000/- was paid by way of cheque for publication of the said book. The OP has also stated that after few days of the said payment he received 5 copies of book without raising any objection and subsequently when he found that there was several mistakes in his manuscript  and he is tried to shift the burden upon the OP and therefore complainant is not entitled to get any compensation of Rs. 70,000/- form the OP. The OP has also stated that no such agreement was made by and between them and the OP never stated anywhere that he will deliver the books within one month as alleged by the complainant.

By filing written version the OP praying for dismissal of this case. 

Having heard the Ld. Advocates of both the parties and perusal of the entire record including complaint, written version and documents filed by the complainant, the following points are to be considered by this Commission.

POINTS FOR CONSIDERARTION     

1. Whether the Complainant is a consumer?
2. Whether the case is maintainable under the C.P. Act?
3. Whether there is any deficiency in service on the part of the O.P. as alleged by the Complainant?
4. Is the Complainant entitled to get any award and relief as prayed for as per the prayer of her Complaint?

                   Decision with Reasons

   All the points are taken up together for discussion to avoid unnecessary repetition and for sake of convenience and brevity of this case.

The complainant was given liberty to prove its case by filing evidence. To prove the case the complainant has file written evidence in the form of an affidavit. In the written evidence the complainant has corroborated the contents of his complaint and he has specifically said on which day he paid a sum of Rs. 22,000/- to the OP for publishing his book namely “Itihass-O-Oitigya Kamrup,  Coochbehar” he also stated in his evidence that despite receiving the sum of rupees from him the OP has failed to published this 110 copies of book within one month and despite receiving several telephonic communications the OP make no response. The complainant has also stated in his evidence that 5 copies of books were handed over by the OP to him which was full of mistake and also stated that the OP intentionally harassed him/cheated him which is clear deficiency in service.

At the time of hearing of argument Ld. advocate of complainant submits that the complainant  has been able to prove the case against the OP and he is entitled to get  the relief as prayed for. He further argued that by filing WNA the complainant has stated everything and he was able to prove the fact that he paid a sum of Rs. 22,000/- to the OP by issuing cheque bearing no. 004116 on 30.12.2014 but the OP issued money receipt of Rs. 17,000/- on the said date in spite of Rs. 22,000/-. Ld. advocate of the complainant also argued that on several occasions he visited the OP to receive the delivery of his books and also visited his office cum Library and try to communicate over phone and SMS but of no result. Ld. advocate of complainant also argued that the complainant sent a notice on 29.12.2016 to the OP claiming full amount of Rs. 22,000/- and he is entitled to get compensation of Rs. 70,000/- along with a sum of Rs. 22,000/- from the OP for not publishing the books by him.

OP to falsify the case of the complainant has filed written evidence in the form of an affidavit by himself and also adduced evidence by Sri Khanin Medhi as OPW-2. In the evidence by as OPW-1 the OP has specifically corroborated the contents of his written version and he specifically stated that the complainant did no pay a sum of Rs. 22,000/- to him for publication of his books but he paid only 17, 000/- to him and the complainant received some of books worth of Rs. 5368/- from him vide bill no. 288 dated 31.12.2014. The OP in his written evidence has also stated that on 30.12.2014 he received a sum of Rs. 17,000/- from the complainant for publishing/ printing books of 60 copies and to that effect money receipt was hand over to him and the Complainant requested for supply of 5 copies of the books within the period of 7 days for his personal use and for which the OP supplied 5 copies of book to the complainant which was duly acknowledged by him and after passage of few day from the receipt of 5 copies of book the complainant went to the OP and alleged that as if that 5 copies was wrongly printed and contains full of mistakes/errors and hand over the copies of books in which the complainant himself corrected all the errors and thereafter complainant declined to take the remaining copies of the book and requested him to correct all errors in the said books but in the meantime the OP had sent the Manuscript for printing to a reputed printing house namely “Kasturi Printers & Publishers”, Guwahati that is why there was no scope of stop printing of the books as requested by the complainant. The OP has further stated in his deposition that complainant specifically did not contact with him for the purpose of publication of his books through any media and he forced him and created pressure upon him for altering error in the newly printed books which was not possible by the said printing house as the books were already printed and by suppressing the material fact the complainant has filed the instant case and there is no deficiency in service on the part of the OP. By filing written evidence the OP praying for dismissal of this case.

The OPW-2 in his evidence in chief has specifically stated that he is proprietor “Kasturi Printers & Publishers”, Guwahati and he is engaged in a business of selling and publishing books of the author/writers and in the process of publishing of books of the author/writer supplies manuscript stored in a flash drive like (CD, Pen Drive etc.) to the publisher and the publisher has no power and authority to chance/tamper anything in the manuscript and in the month of January 2015 he received a order of printing of several books in the name and style i) Delton, ii) History of Kirat, iii) Koch-Rajbanshi, iv) Darjeeling and v) Itihass–O-Oitigya Kamrup, Coochbehar from N.L. Publisher (OP) and on receipt of the same he also received an amount of Rs. 75,000/- in several installments as and full and final payment for the printing of the said books which was acknowledged by him vide his letter dt. 05.12.2015 to the OP. It is also stated by the OPW-2 that at the time of placing the order the OP requested him to supply 5 copies of “Itihass-O-Oitigya Kamrup,  Coochbehar” within one week or at the earliest and accordingly he had supplied the said books to the OPs and in his acknowledge letter dt. 05.02.2015 he stated that the outstanding books will be supplied to the OP within 25^th February 2015  and he supplied all the books including 55 copies books of “Itihass-O-Oitigya Kamrup,  Coochbehar” of the complainant within 25^th February, 2015 to the OP.

 At the time of hearing of argument Ld. Advocate of OP argued that they have already filed WNA and stated everything there. He argued that the complainant has not been able to prove the case against the OP and by suppressing the material fact he filed the instant case for causing loss to the OP. Ld. Advocate of the OP also argued that the Complainant has not been able to prove the case against the OP.

Ld. advocate of OP referred decisions of (2004) 3 SCC 137. (2015) 9 SCC 755. (2007) 6 SCC 711 by referring these decisions Ld. advocate of OP argued that the complainant has not been able to prove his case .

Having heard the Ld. Advocate of both the parties and on perusal of the complaint, written version, evidence of the parties, documents filed by them as well as their written notes of argument it reveals that, the complainant is claiming that, he had paid a sum of Rs. 22,000/- to the OP on 30.12.2014 for publishing a book namely “Itihass-O-Oitigya Kamrup,  Coochbehar”.  The complainant also claiming that, he gave money to the OP on 3012.2014 on condition that, the OP would publish the book of the complainant written one month and deliver 110 copies.

It is also the claim of the complainant that the OP did not publish his book till today i.e. till the date of filing of this complaint.

On the contrary the case of the OP is that, the complainant did not pay him a sum of Rs. 22,000/- for publishing the book of the complainant. It is also the case of the OP that he never assured the complainant that he would publish and deliver 110 copies  of books within one month. The OP also denied that, he did not publish the book of the complainant and did not deliver him till the date of filing of this case.

Now let us see how far the complainant has been able to prove his case against the OP or not?

 From the complaint, written version of the OP and from the documents filed by the parties it is admitted fact that, the complainant gave a sum of Rs. 22,000/- to the OP through a cheque bearing in NO. 004116. The complainant is claiming that the he gave the sum of Rs. 22,000/- to the OP for publish his book. But by producing Bill No. 288 dated 30.12.2014 the OP has been able to prove that, on 30.12.2014 the complainant purchased books from the OP worth of Rs. 5368/- and the OP issued the cheque for the sum of Rs. 22,000/- in favour of the complainant. It is also not denied by he complainant that, he did not purchase books worth of Rs. 5368/-  30.12.2014 from the OP and as such we can safely presumed that, Rs. 22,000/- was not paid by the OP solely for the purpose of publication of books.

It is also the claim of the complainant that, there was a condition that the OP would publish his books within one month and deliver 110 copies. But in support of that claim of the complainant he neither filed any agreement nor filed any contract paper before this Commission to substantiate his claim that, the OP assured to publish books within one month and  deliver the same to the complainant.

In Para No. 2 of the complainant the complainant has claimed that, the OP did not publish any book and deliver him till today i.e. till filing of this case. But on the contrary the OP in his written version has stated that within 7 days from 30.12.2024 the OP handed over 5 (five) copies of the said book to the complainant which was duly acknowledged by him. That statement of the OP has also been acknowledged by the complainant who in his evidence as well as in his WNA admits the same. Accordingly we can safely presume that the statement made in Para No. 2 of the complaint petition is not correct. Though the complainant had received 5 (five) copies of that book from the OP but  he did not state the  said fact in the four corner of his complaint.

In the written version and in the WNA the OP has specifically stated that, the complainant after receiving 5 (five) copies of book went to the OP and claims that, those copies were wrongly printed & published which contained full of mistakes/errors in the said book and he declined to take other copies from the OP though the remaining books were published in the mean time. In support of the claim of the complainant he did not produce his flash drive or manuscript and the book which he receive from the OP before this commission to prove his claim that the books were printed/published wrongly which contained full of mistake.

Moreover in the complaint petition the complainant has claimed that, he gave a sum of Rs. 22,000/- to the OP for publishing his book but in the letter which the complainant sent to the OP (Annexure-B) the complainant stated that, a money receipt of Rs. 17,000/- was given to the complainant by the OP. Therefore the statements made in the complaint petition and statements made in the letter dated 22.12.2016 are contradictory with the other.

In the written complaint the complainant did not state specifically since when the cause of action for filing of this complaint arose.

Considering all we are of the view that, the complainant has not been able to prove the case against the OP.

Hence, it is therefore,

O R D E R E D

That the instant Consumer Case being in No. 28/2017 be and the same is hereby dismissed on contest.

Let a copy of this order be given to the parties free of cost.

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