Order dictated by:
Sh.S.S. Panesar, President.
1. Sanjiv Mehra complainant has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that complainant was approached by opposite party No.2, who markets the UPVC Windows for his under construction house at 77, Dr. Enclave, Ajnala Road, Amritsar on behalf of opposite party No.1, who is the importer of the said products in India and opposite party No.3 is its agent at Amritsar, who supplied and install the said product and assured after sale services. Opposite party No.2 on behalf of opposite party No.1 contacted the complainant for his under construction house and showed the picture about the product UPVC windows and assured the complainant to supply the said product as and when ordered. In the month of April, 2015 opposite party No.2 gave the final quotation of Rs. 16,53,851/- for the supply of the said UPVC windows and agreed to supply the same through opposite party No.3. The complainant was asked to make the part payment to opposite party No.3 and assured to supply the said products within 100-120 days as the same is to be import from Germany by opposite party No.1. On the assurance of the opposite party No.3, complainant made the payment of Rs. 3,91,376/- to the opposite parties. Thereafter, opposite parties continuously giving false assurances to the complainant that the said UPVC windows would be reached soon . The complainant was always ready and willing to make the balance payment . But the opposite parties never supplied the goods as ordered despite making of several e-mails , communications and personal visits by the complainant. The aforesaid act of the opposite parties in not supplying the UPVC windows as ordered inspite of taking part payment has caused an immense delay in the construction of the new house of the complainant for which opposite parties are liable to make the compensation to the tune of Rs. 10 lacs to the complainant. The complainant has sought for the following reliefs vide instant complaint:-
- Opposite parties be directed to refund Rs. 3,91,376/- alongwith interest @ 15% p.a. from date of payment till realization.
- Opposite parties be also directed to pay compensation to the tune of Rs. 10 lacs to the complainant as well as adequate litigation expenses.
Hence, this complaint.
2. Upon notice, opposite parties appeared and filed separate written statements.
3. Opposite party No.1 in its written statement has taken certain preliminary objections therein inter alia that complaint is not maintainable against opposite party No.1. It is submitted that opposite party No.1 is an enterprises with experience of a varied nature in the area of UPVC processing and in the business of construction, automotive and industry. Opposite party No.1 has been in the market in India since 1997 known for its quality products. Rehau Standard Window systems are its own development and it possesses the manufacturing and sales right also. It is submitted that opposite party No.1 only manufactures the profiles of UPVC doors and windows. These profiles are sold as raw material for manufacturing UPVC doors and windows. These are bought by fabricators, who convert this raw material to finished goods namely doors and windows using other raw material also like glass, steel, hardware, screws, PU foam, silicone, etc. These doors and windows are then installed by the fabricators, who are independent entities. Opposite party No.1 has no stake in these entities, as such , no control over their activities ; that with respect to opposite party No.1, it is submitted that Winda Fab India is one of the authorized dealer of Rehau Polymers Pvt.Ltd in India. Opposite party No.1 has no authority over opposite party No.1. Any delay on delivery to the end of customer by the fabricator or assembly of the products which are manufactured and imported by opposite party No.1 so caused will be the responsibility of opposite party No.2. The said agreement dated 22.5.2014 was entered between opposite party No.1 and opposite party No.2 for duration of three years, wherein opposite party No.2 was appointed as fabricator and whereas opposite party No.2 was also given to right to process the UPVC window sections into structural elements. As per agreement dated 22.5.2014, it is mentioned that the fabricator (opposite party No.1) will hold harmless Rehau its officers, agents and employees from any and all liabilities, claims, demands or suits arising out of the negligent operation of opposite party No.2. It is also stipulated that all existing and future technical information such as manufacturing instructions, Reinforcement instructions, Glazing instruction etc are to be strictly observed by opposite party No.2. As per the contract the staff of opposite party No.2 were trained by technical staff of opposite party No.1. The profiles of windows and doors that are manufactured by opposite party No.1 are sent in a sealed package to opposite party No.2 from Pune. In case of any delay of the ordered product, the authorized seller of the product is liable as there is no direct contract of sale between opposite party No.1 and the end buyer. The sale proceedings are a matter of discretion of the seller i.e. opposite party No.2 and opposite party No.1 has nothing to do with any such process ; that opposite party No.1 is not liable for the acts of opposite party No.2 and it is opposite party No.2 which is liable and responsible for any act and not opposite party No.1 ; that present complaint is not maintainable against opposite party No.1. There are no averments in the complaint making any direct allegation against opposite party No.1, the complaint is vague and opposite party No.1 has been made a party malafidely and has been unnecessarily dragged into the present complaint. The complainant only wrote to opposite party No.1 via e-mail for the first time on 5.12.2015 with regard to the issues, that the complainant was facing with the opposite party No.2 & 3. Opposite party No.1 replied the e-mail on 7.12.2015 and assured that opposite party No.1 will look into the matter and take up the same with opposite party No.2. The opposite party No.1 did not give any assurance from its end as opposite party No.1 is responsible for only the quality of the profiles as opposite party No.1 is the manufacturer and not responsible for any service or any deficiency of service by opposite party No.2. With respect to opposite party No.3, opposite party No.1 has no business relations with it nor is the opposite party No.1 is responsible for any money taken as advance by opposite party No.3 or opposite party No. 2 from the complainant. The receipt of advance and the sale took place between the complainant and opposite parties No.2 & 3. Thus the complaint is not maintainable against opposite party No.1 due to lack of privity of contract ; that in view of the legal objection stated above, it is submitted that once again the answering opposite party has never taken any consideration from the complainant nor had the complainant taken any services of opposite party No.1 at any time. Thus opposite party No.1 is neither a necessary nor a proper party nor any relief can be claimed against opposite party No.1 in favour of the complaint . The complaint is bad for misjoinder of parties. In parawise reply, facts narrated in the complaint have been specifically denied and a prayer for dismissal of the complaint has been made.
4. Opposite parties No.2 & 3 in their written statement have taken certain preliminary objections therein inter-alia that present complaint is an abuse of the process of this Forum . Infact the complainant has not come to this Forum with clean hands and has suppressed the material facts from this Forum. The real state of affairs are that replying opposite parties got the order from complainant for UPVC windows in March 2015. Final quotation for a sum of Rs. 16,53,851/- was given to the complainant in which special discount @ 47% was also given to the complainant. The complainant made advance payment of Rs. 3,62,000/- vide cheque No. 095941 dated 30.4.2015. But thereafter complainant changed his design as per his own wishes and then he gave final order of UPVC Windows in dark oak colour and after revised quote, the final order value comes to Rs. 17,80,503/-. In respect thereof revised quote No. Q00958 dated 21.5.2015 was given to the complainant . The complainant was under obligation to make 25% advance payment out of total amount and 25% amount at the time of survey and 35% amount before the delivery and 10% amount at the time of delivery and balance 5% amount by way of PDC cheque after two months of installation of windows . The complainant made the first installment of 25% amount out of the total amount of Rs. 17,80,503/- by way of giving cheque bearing No. 097656 dated 20.6.2015 for a sum of Rs. 29,376/- as previous difference (because the complainant had already made the payment of Rs. 3,62,000/- as per previous quotation and the said amount was adjusted in the first installment of 25% advance payment as per revised quote) and in this way the complainant paid Rs. 3,91,376/- as 25% advance payment as per the revised quote. It is important to mention that the replying opposite parties visited the premises of the complainant for survey and the complainant was under obligation to make 25% amount to the tune of Rs. 3,91,376/- at the time of survey. But the complainant failed to do so and false assurances were given by the complainant for making such 25% amount in two or three days, but he did not make any payment thereafter. It is pertinent to mention that the replying opposite parties had already prepared 6 windows which were ready for installation and replying opposite parties had already purchased the material from opposite party No.1 for more than Rs. 8 lacs in order to satisfy the order of the complainant. In this respect so many requests were made to the complainant telephonically as well as vide e-mails dated 30.7.2015 and 12.8.2015 for making the further payment so that opposite parties could install six windows already prepared and for preparing further windows because for completing the order of complainant, the replying opposite parties had already put their more than Rs. 8 lacs at stake. But it is the complainant who was actually not having the payment to make the same to opposite parties and now to wriggle out from his obligation, has created a false story ; that complainant has not placed on record any cogent and convincing material in order to substantiate the pleas as alleged in the complaint ; that present complaint involves complicated questions of facts and law and even in order to adjudicate the real controversy between the parties voluminous evidence is to be adduced which requires recording of testimony of experts, their cross examination alongwith other evidence and such like controversy cannot be adjudicated in summary proceedings . On merits , facts narrated in the complaint have been specifically denied and a prayer for dismissal of complaint has been made.
5. In his bid to prove the case Sh. Deepinder Singh,Adv.counsel for the complainant tendered into evidence affidavit of the complainant Ex.C-1, copy of account statement Ex.C-2, copies of the quotations Ex.C-3 to Ex.C-5.
6. To rebut the aforesaid evidence Sh.Narinder Singh Giani,Adv.counsel for the opposite party No.1 tendered into evidence affidavit of Sh.Alpana Singh, Authorized representative Ex.OP1/1, power of attorney Ex.OP1/2, copy of agreement Ex.OP1/3, copy of e-mail dated 4.12.2015 Ex.OP1/4 and closed the evidence on behalf of opposite party No.1.
7. On the other hand Sh.Neeraj Brahmi,Adv.counsel for opposite parties No.2 & 3 tendered into evidence affidavit of Sh.Raman Kumar Ex.OP2,3/1 and Ex.OP2,3/2, copy of authority letter Ex.OP2,3/3, copy of revised quote No. Q00958 dated 21.5.2015 Ex.OP2,3/4, copy of quotation Ex.OP2,3/5, copies of e-mail Ex.OP2,3/6 and Ex.OP2,3/7 and closed the evidence on behalf of opposite parties No.2 & 3.S
8. We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted on behalf of all the parties.
9. Ld.counsel for the opposite parties has vehemently contended that there is no privity of contract between complainant and opposite party No.1. Opposite party No.1 has been wrongly arrayed as party to this complaint. The alleged agreement copy whereof is Ex.OP1/3 on record has been executed inter-se opposite parties & the complainant is not privy to that agreement. No payment has been made by the complainant to opposite party No.1. Opposite party No.1 is under no obligation to execute the obligation of opposite party No.2 in compliance with agreement Ex.OP1/3.
10. On the other hand , ld.counsel(s) for the opposite parties No.2 & 3 have vehemently contended that no doubt a sum of Rs. 3,91,376/- has been received under the contract agreement dated 30.4.2015 from the complainant by opposite party No.2. But however, as per provisions of contract agreement , the complainant was obliged to make further payment i.e. 25% advance payment out of the total amount and 25% at the time of survey and 35% before the delivery of goods and 10% at the time of delivery of goods and the balance 5% amount was to be made by him by way of PDC cheque after 2 months of the installation of windows.
11. But, however, complainant has not made any further payment so far to opposite party No.2 and as such the contract agreement could not be executed. Reference has been made to e-mails Ex.OP2/6 dated 30.6.2015 and Ex.OP2/7 dated 12.8.2015 wherein a request has been made to the complainant to make the balance payment so that the windows agreed to be installed by the opposite party No.2 in the premises of the complainant, may be complied with. But, however, for the reasons best known to the complainant, no payment has been made as per provisions of the agreement after 20.6.2015. In such a situation, it is the complainant, who has frustrated the contract agreement and therefore, the complainant is not entitled to refund of the amount of Rs. 3,91,376/- paid by him to opposite party No.2. It is further contended that instant complaint is nothing but an abuse of the process of the court on the part of the complainant. The complainant himself is guilty of non compliance of the provisions of the agreement in dispute and has tried to shift burden on to the opposite party No.2 simply on the plea that just six windows were completed to be installed by 24.7.2015, whereas 51 UPVC windows were to be installed at the premises of the complainant uptil 24.7.2015 in view of the agreement in dispute. But the objection taken by the complainant is not at all tenable because it is the complainant, who did not make requisite payment(s) after 20.6.2015 so as to enable opposite parties No.2 & 3 to comply with the agreement in dispute. As such , it is requested that the complainant is not entitled to the refund of the amount already paid by him or any compensation or litigation expenses as requested vide instant complaint. The complaint deserves to be dismissed with cost u/s 26 of the Consumer Protection Act.
12. However, from the appreciation of the facts and circumstances of the case, it becomes evident that the agreement was admittedly entered into by opposite party No.2 in favour of the complainant for supply of 51 UPVC windows on receipt of Rs. 3,62,000/- on 30.4.2015 and Rs. 29,376/- on 20.6.2015 vide cheques. The agreement was to be executed on or before 24th July 2015. But however, opposite party did not install even a single window at the premises of the complainant by the stipulated date . Vide e-mail dated 30.6.2015 Ex.OP2/6 , it is stated that 6 UPVC windows were ready with opposite party and they were ready to install the same . However, opposite party No.2 was obliged to install 51 UPVC windows at the premises of the complainant by 24.7.2015. In such a situation , default has been made by opposite party No.2 in execution of the agreement dated 30.4.2015.
13. No survey was conducted by opposite party No.2 for installation of the windows nor it had requisite number of windows with it for installation. In such a situation, question of further payment by the complainant does not arise. Time was the essence of the contract because the complainant was to complete the construction of the house wherein UPVC windows were to be fitted . But, however, opposite party No.2 did not conform to the terms and conditions of the agreement in dispute and rather insisted on further payment, despite the fact that they were not ready with the requisite number of windows in dispute . Vide e-mail Ex.OPW1/3 dated 4.12.2015, opposite party No.2 tendered apology for the inconvenience suffered by the complainant on their part. In such a situation opposite party No.2 is definitely deficient in service. As such, the complainant was bound to succeed for relief of refund of amount deposited by the complainant with opposite party No.2 for installation of windows. We accordingly hold that opposite party No.2 cannot retain the amount of Rs. 3,91,376/- with them and rather they are under legal obligation to repay the said amount to the complainant alongwith interest @ 9% p.a. from the date of payment until full and final recovery & the complaint stands allowed accordingly. However, complaint against opposite parties No.1 & 3 fails and the same is ordered to be dismissed. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated : 30.8.2016
/R/
