Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-392/27.10.2016
(1) Mr. Ambrish Tiwari, Director M/s Bhavya Creators Pvt. Ltd
Regd. Office at 616-618, Devika Tower, 6 Nehru Place.
New Delhi-110048
Also at: S-455, Greater Kailash-II, New Delhi-110048
(2) Ms. Varnika Tiwari w/o Mr. Ambrish Tiwari
r/o S-455, Greater Kailash-II, New Delhi-110048 ...Complainants
Versus
(OP1): M/s Render Worx
through its Proprietor Mr. Sachin Gothwal,
27a, Upper Anand Parvat, Karol Bagh,
New Delhi-110005
(OP2): Mr. Jintender Kumar C/o Sikka Associates
A-2/1, Opposite Bhikaji Cama Place,
Safdarjung Enclave, Delhi-110029 ...Opposite Party
Order Reserved on: 28.12.2022
Date of Order: 08.02.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Ms. Shahina, Member -Female
Inder Jeet Singh
ORDER
1.1. (Background and introduction): Initially, a complaint bearing no. CC-426/2014 was filed by the complainants against OPs before Hon’ble State Consumer Disputes Redressal Commission, Delhi but during the proceeding therein, the issue of jurisdiction was emerged, thus the complaint was withdrawn vide order dated 22.09.2016, with liberty to file fresh complaint, which was granted by the Hon’ble State Commission, Delhi. Thence, the complainants filed the present complaint before District Consumer Disputes Redressal Forum/Commission, Delhi.
1.2: The record of pleadings of the present complaint, its reply, rejoinder and documentary record are voluminous, since the parties have given the facts in details apart from data in tables. Many facts and figures have also been repeated by them, however, the care has been taken in the present Order to avoid repetition as well as to put the case of parties in precise with clarity.
1.3: There are two opposite parties namely OP1 and OP2, written statement has been filed under the title ‘written statement on behalf of the opposite parties named above’, under the signature of Shri Sachin Gothwal, Proprietor of OP1 and in the contents of written statement, it is stated that OP1 has been authorized to swear affidavit on behalf of OP2. The complainant had raised an objection that the written statement is a photocopy, original has not been filed as well as no authority has been filed to show that authorize OP1 was authorized either to file the reply or the affidavit. There is no authority letter, placed on record, by OP2/ Mr. Jitender Kumar c/o Sikka Associates in favour Shri Sachin Gothwal. Moreover, at the time of leading evidence, Shri Sachin Gothwal also filed his affidavit for evidence for OP1 and also a separate affidavit for OP2 as if he is authorized representative of OP2 but no authority letter was filed with the affidavit.
2.1: (Introduction to the disputes of the parties) : From the voluminous record, the consumer dispute can be culled out. The complainants took services of OP1 and OP2 in buying furniture to be manufactured by OP1, there was Bill of Quantities (briefly BOQ) dated 23.02.2013 in respect of furniture items with specifications to be made, quantity, cost of each item and also the terms of payment & tenure.
The complainant is aggrieved that there is delay in providing the furniture articles in a time, despite making the payments to the OP, the articles were not delivered completely but partly, the partly delivered articles were defective and not as per specifications, a few articles taken back for repairs were also not repaired nor all of them returned after repair and those other defective articles were not feasible to be used. Paragraph 22 of the complaint [and also paragraph 23 of the affidavit of evidence] reproduces the detail of specifications of furniture items, cost as per BOQ, and other details and remarks with regard to partly delivery of furniture items as well as the defect in the delivered articles. There was deficiency in services apart from unfair trade practice by the opposite side.
On the other side, OP took the various objections, firstly, there was no deficiency in services nor any unfair trade practice. Initially the discussions took place in October 2012 and then items to be made were finalized in January 2013, however, the complainants have not filed BOQ with the complaint of that period. (it is relevant to mention the OPs have also not filed any BOQ of January 2013). There was no BOQ of 23.02.2013, in fact there was mistake of the date of 23.02.2013 since the BOQ was of November 2013 supplied by emails to the complainants but at that time in November 2013, date of 23.02.2013 was not rectified. In addition, there was delay in payments by the complainants, there was change of design of the furniture items to be manufactured from time to time, particularly in March 2013 and at other later times. The furniture could be manufactured after those change of design and its approval, which continued from January 2013. Paragraph 22 of the reply also depicts a table that there were some defects in the some articles of furniture, however, the same were minor in nature because of measurement mistake in one of the items & so far other items are concerned, either the complainants had not permitted to affix the legs of sofa or changes in the designs. Moreover, the undelivered items may be delivered to the complainants, subject to balance payment of furniture prepared. There were no other defects in the furniture but the same happened because of mishandling by labour. That is why, because of change of design from time to time, the furniture could be manufactured but it was not on the part of OPs.
2.2. While considering the feature of the case along with figures of amount involved, both the parties have given detail in their pleadings, although at some places there appears to be round figure and the same will be mentioned as it is, to make it convenient to match with figures given by parties & avoid other actual calculations/confusions. Secondly, BOQ (Annexure-A/35 to 38), Paragraph 22 of complaint and Paragraph 22 of the reply depicts certain figures without calculation or the gross or net amount, it is relevant to specify them as it will make very convenient, when the case of parties will be discussed.
2.3. Annexure A is specifications of furniture items from serial no. 1 to 13 (a). There are total 58 items of furniture. As per paragraph no. 22 of the complaint, the actual order was for 52 items read with Annexure-A against 58 items. [Some items in Annexure A are left blank & in paragraph no. 22 it was also mentioned that in four specification, some items mentioned were less or more, then actual order of 52 item was made]. Whereas, the paragraph no. 22 of reply along with other paragraph of reply, the OPs' case is of complete specifications and total amount calculated is for 58 items as mentioned in Annexure-A.
2.4.1. Since there is rival stand of the complainants and OPs about the total cost/price of furniture, it needs to mention here. The complainants have calculated the amount payable on the basis of specifications and items, along with rates mentioned in Annexure-A for 52 items. The total amount as computed in the complaint as well as in the affidavit is shown as Rs. 11,35,000/-. There was reduced/revision of rate for three items, accordingly actual cost/price of order was for Rs. 10,87,000/-. Since there was 10% discount agreed, by reducing it, the cost of actual order came to Rs. 9,78,300/-. As per specifications/BOQ dated 23.02.2013, it was agreed that in case the complainants provide fabrics for the furniture, then maximum amount will be reduced @ Rs. 450/- per meter and complainants claimed to have supplied 214 meter of fabric, it was for Rs. 96,300/-, the total amount payable was Rs. 8,82,000/- for 52 furniture items. In fact complainants had paid Rs. 9,22,000/- to opposite party, consequently Rs. 40,000/- was paid in excess to OP1. The complainants were not supplied/delivered furniture items of Rs. 4,32,000/-. It is relevant to mention that in BOQ/Annexure-A, there are total 58 articles of furniture, but complainant claims the order was actually for 52 items (as 03 items at sl no.12c & 02 items at sl.no.13 were not ordered and quantity of item no. 9 was 02 but it mentioned as 01 & quantity of item no.10 was 2, which was mentioned as 04).
2.4.2. On the other side, the OP1 does not dispute receipt of amount of Rs.9,22,000/- from the complainants. However, the OP1 calculates total bill amount of Rs.12,22,500/-, without specifying its details/basis. However, by calculating the costs/price of 57 items as Rs.12,22,500/-, [i.e. cost of 52 items as stated by complainant as Rs.11,35,500/-plus costs of 05 items of Rs.98,000/- in respect of furniture items at sl.no.12c and sl.no.13, which were excluded by complainant; it comes to Rs.12,23,500/-,but stated by OP1 as R.12,22,500/-]. The OP1 claims that there was 187 meter of fabric quantity used and by deducting the amount of Rs. 84,150/- (i.e. 187 meter x Rs.450/-), the revised bill comes to Rs. 11,38,350/-. Thus, balance amount of Rs. 2,16,350/- is still left to be recovered from the complainants and OP1 will release the all remaining furniture items from its factory on receipt of payment of final bill. The discount component was waived off because payments were not tendered in time.
2.5. Since payment of Rs. 9,22,000/- by complainant and receipt of this amount is not disputed by the opposite side, it needs to refer the dates of payment with record. Advance payment of Rs. 50,000/-(acknowledged by email Annexure-C); further payment of Rs. 1,00,000/- on 13.02.2013 (Annexure-B is voucher of payment); Rs. 20,000/- and Rs. 20,000/- against vouchers dated 19.03.2013 (Annexure-D collectively); Rs. 2,00,000/- vide voucher 16.11.2013 (Annexure-I); Rs. 1,00,000/- vide voucher 13.01.2014 (Annexure-J); Rs. 1,00,000/- vide voucher 13.02.2014, Rs. 2,22,000/- vide voucher 10.03.2014 & Rs. 1,00,000/- vide voucher dated 16.05.2014 (Annexure-K colly.).
2.6. Since the material facts, features, figures have been introduced and nature of dispute between the parties apart from some of admitted facts of payment, the further narration of the case will be in narrative in this background and introduction to the case of the parties given.
3.1 (Case of complainant ) :The OP2 Shri Jitender Kumar is an interior designer by profession, he was associated with the Sikka Associate and it is in the business of architecture and interior designing having relation with OP1, who is in the business of manufacturing and selling furniture. The complainants were in need of some furniture items for their new house at Kaushambi, Ghaziabad. OP2 recommended the name of OP1 and believing the assurances about goodwill of OP1 and having best furniture studio, the complainants decided to purchase the furniture from OP1. It was 23.02.2013, when complainants placed order for furniture of different sizes and specifications as per BOQ dated 13.02.2013 for 52 items . It was agreed that upholstery/ fabric will be provided by the complainants and the amount of fabric at the rate of Rs. 450/- per meter will be adjusted in final bill. The complainants paid the amount from time to time. Later, the OPs themselves told and also emailed to complainant on 18.3.2013 (Annexure 'C' that first of all only three items of furniture will be made (viz. bed for master bedroom, dining table and dining chairs) and the rate of those three items were also reduced. The complainants were not supplied the items in time for more than one year and said three items were provided in April 2014. The furniture supplied were found defective, of poor quality and finishing was also not good, apart from side table of bed of master bed room were also not delivered. The items were not matching with the specifications.
The complainants also purchased costly upholstery/fabric against bills and its delivery was taken by the OP1 through OP2 directly under acknowledgment. The tax invoices/bill of fabric also show acknowledgment of fabric by the OP2. However, the furniture were not supplied in time. The complainants keep on making the payment against vouchers from time to time on the assurances of the OP that furniture will be supplied. The furniture was partly supplied and the articles delivered were either incomplete and incomplete sets, or of poor quality, there was no use of form in the back of chairs, the structure of dining table was not accommodating 10 chairs ordered, it was dining table of 8 chairs only, whereas the specifications was for 10 chairs, paragraph no. 22 of the complaint and correspondingly paragraph no. 23 of the affidavit also described such deficiencies, non-delivery of articles or defective pieces of furniture. The complainants have been interacting with the opposite party, Mr. Sachin Gothwal, on his contract number as well as email Id (as mentioned in the complaint as well as in the evidence) and pursuant to such assurances and discussions with regard to delivery of furniture items, the complainants had paid a sum of Rs. 9,22,000/- to the OPs against final bill of Rs. 8,82,000/-. Since some articles of furniture have been supplied, the photographs filed clearly show the states of affair that the furniture was not as per specifications and there was also no feasibility to keep and use them, because of flaw, defects and incomplete articles. That is why the complaint. The complaint is accompanying with the record from the date of BOQ followed by record of payments, email exchanged and so on.
The OP had filed reply to the complaint, the allegations in the reply has been opposed by the complainant by replication, it will also be referred after mentioning the case of opposite party.
3.2 (Case of OP) : In the written statement, case of complainants was opposed by way of preliminary objections, facts of the case and reply on merits. The substantive portion of the facts and features disputed by them as well as a few admitted facts of receipt of amount from complainants have already been referred.
The other aspects of the case are that the OP fulfilled all its obligation under the contract and the complaint has been filed to extract money from the OP. It was October 2012 when complainant no. 1 requested OP2 to make 3D design of their master bed room. On 01.11.2012 OP2 forwarded 3D design of master bed room, it was not liked of side table design. In January, 2013, OP1 received telephone call of complainant to visit and see the quality of the furniture in the factory. After such visit and being satisfied and impressed with the quality, in January 2013 it was agreed for manufacturing the furniture items and Rs. 50,000/- was advanced to OP by the complainant no.1. The 3D design photograph was appended with the reply. On 13.02.2013 further payment of Rs. 1,00,000/- was made to OP1 and thereafter there was request and discussion for change of designs etc., which continued till March 2013 and also for subsequent period. As such there was no BOQ of 23.02.2013 between the parties. Actually BOQ was prepared in November 2013 and the date mentioned as 23.02.2013 in BOQ was by mistake, which could not be rectified while generating the hard copy in November 2013. Since there was change of design of certain items. The dining table and 8 chairs were manufactured as per order, however, subsequently the complainants asked 02 additional/extra chairs, which were also manufactured by OP. The OPs cannot be blamed for that, as two additional chairs were to kept nearby dining table. There were also delay in payments despite various reminders and email to the complainants, the OP1 was constrained to waive off the discount of 10%.
The furniture was supplied in good condition, however, it was under construction house of complainant, the furniture was damaged because of their own faults and acts, they themselves have also broken the furniture deliberately apart from torn of the furniture by them in order to create fake case against the OPs, there was mishandling of the furniture by labour. The condition of furniture was excellent at the time of delivery. The OP1 was not delivered fabric formally, there is fabrication of signature of OP2 on the tax invoice about delivery of fabric. In fact, OP1 had used and consumed fabric of 187 meters in manufacturing the furniture, it was not 214 meters as alleged in the complaint. The payment was to be made within the stipulated period, however, complainants failed to tender the amount in time, that is why, there was email and other correspondence. Paragraph no. 22 of the reply depicts the plea of OP1 that the some of the furniture items were made as per specifications but design was got changed by the complainants, the legs of sofa was not get installed by complainants themselves until its delivery at their home and so on. The OPs have also filed a few photographs of furniture with the reply to fortify their stand.
3.3: (Replication of complainant): The replication is in detail (under various heads), it reaffirms the complaint as well as reply to the allegations mentioned in the written statement. It points out that there are certain admission by the opposite party, the written statement also admits that there were defects in the furniture supplied, defective manufactured items and non-delivery of other furniture items, which is actually the case of complainants. There is also admission of receipt of amount as well as excess amount.
The complainants also denies the allegations of October 2012, January 2013, March 2013 as well as allegations of November 2013 in respect of plea of OP on BOQ. There was no change of designs of the furniture. It was new house of complainants but not under construction house. There was no fault or acts of complainants for damages to furniture, nor they themselves have broken the furniture deliberately nor torn of the furniture by them in order to create fake case. The fabric was provided to them directly from the vendor and OPs were being asked as to how much fabrics was utilized. The complainants vehemently denies the allegations, being false and complainants asked in their pleadings from OPs to establish these allegations strictly. The BOQ was of 23.02.2013, it was mentioning the specifications as well as quantity but actual order was of 52 items. It also mentions order for dining table with 10 chairs and not for 8 chairs nor any separate order was given for two additional chairs. During pending of Order, the complainant had made some inquiry for some other furniture item, which is also clear from email, but no where it was change of specifications or designs. All the payments were made accordingly. The complainants request to discard the stand of OPs.
4.1 (Evidence) : Complainant no. 1 and the complainant no.2 filed their separate affidavits of evidence, while relying upon the detailed documentary record filed with the complaint. The complainant no. 2 also refers and relies upon a few emails exchanged between the complainant no. 2 and the OPs. The complainants also filed affidavit of Section 65B of Indian Evidence Act for record of emails.
4.2: On the other side, Shri Sachin Gothwal filed affidavit of his evidence for OP1 being its Proprietor and he refers the record annexed with the reply. He also files his affidavit for OP2, stating him to be AR of OP2, Jitender Kumar, without any supporting authority letter.
5. (Submission of Parties) : Both the sides filed their written arguments. The parties were also given option to make oral submissions. Ms. Snigdha Sharma, Advocate for complainants presented oral submissions, however, the other side has failed to avail this opportunity of oral submissions.
6.1 (Findings): The case of all the parties is analyzed, compared and considered, keeping in view the contentions raised in the pleadings, documentary record and the written arguments. It does not require to reproduce all of them, since the same will be discussed point-wise.
6.2.1: The foremost objection by the complainants against OPs is based on the provisions of the Civil Procedure Code, particularly, on the points of pleadings & verification of pleadings by affidavit of OPs. There is supporting affidavit of OP1 and not of OP2. Whereas, under the provisions of the Consumer Protection Act, 1986 reply to complaint suffice, it does not require to be strictly as written statement with supporting affidavit under rule 15(4) of Order VI CPC [verification to the pleadings with supporting affidavit]. Thus, this contentions to that extent of want of verification of pleading by affidavit, stands disposed off.
6.2.2: There is another point raised by complainants that written statement/reply filed as such by the OPs is photocopy, it is not original; this objection was also raised in the replication, thus it cannot be considered proper or valid reply/written statement.
On perusal of record, it is found that reply/written statement is a photocopy and original written statement was not filed. The previous proceedings are also perused, there was no findings by ld. predecessors. It is requirement of law, that there should be original pleading, however, considering that this is old case of year 2016, instead of deciding this issue on technical flaw, it needs to decided on merits. It will also escape the parties from another round of litigation.
6.3: So far joint reply/ WS of OP1 and OP2 is concerned, by looking at the record it is crystal clear that there is no authority letter issued by OP2 under his signature in favour of OP1 either to file the pleading or to swear affidavit on behalf of OP2. Moreover, there is Vakalatnama on record bearing signatures of OP1 and OP2 jointly in favour of counsel Ms .Farhat Warsi, Advocate (with address & contact number) for them, however, Vakalatnama in favour of counsel by OP2 does not mean that OP1 was authorized by OP2 to file the pleading or to file affidavit of evidence by OP1 for OP2. Therefore, the reply filed under the heading ‘written statement by the Opposite parties’ will be treated for OP1 exclusively. Similarly, OP1 had no authority to say that he can swear affidavit of evidence on behalf of OP2 for want of authority in favour of OP1.
6.4: The most debatable issue is in respect of BOQ and its date. Since on the one side, complainants’ case is that BOQ was of 23.02.2013 and there was no other BOQ either of January 2013 or of November 2013 as acclaimed by OP1. Whereas, the case of opposite party is that BOQ was of January 2013, which was with-held & not filed complainant as well as there was revised BOQ of November 2013 but mistakenly date 23.02.2013 was printed, when BOQ was generated in November 2013. The finding on this aspect will resolve many controversies. Thus, this prime issue is being discussed.
6.5.1: First of all, no BOQ of January 2013, if so existing, was filed by the opposite party. In case it was withheld by the complainants, it could have been filed and proved by the opposite party. It was not done by the OP1.
6.5.2: Annexure-A is BOQ of 23.02.2013 (page no. 35 to 38 of complainants’ paper-book). The opposite party affirms Annexure-A but denies its date of 23.02.2013, with counter plea that it was of November 2013, it was revised BOQ since there were change in designs after January 2013. Whereas, in between 23.02.2013 to November 2013, there is time span of about 9 months and there are many interaction took place between the parties, inclusive of payments as well as exchange of emails. Thus documents record is to be seen. In fact, the documentary record exchanged between the parties carries answer to this debatable point, as documents have left its imprints, which reflects the events taken place and it will also demonstrate, as to which of parties' stand is matching in this regard . It is Annexure-C (Page 40-41) and Annexure-E (Page 45-46). It is appropriate to reproduce relevant extracts of Annexure-C of email dated 18.03.2013 sent by OP1 to complainants & & Annexure-E another email -
“Annexure-C[extract]
"Dear Ambrish
As discussed with Jitender We are working on three furniture items in first phase.
a. Bed for Master bedroom.
b. Dining Table.
c. Dining Chairs.
I would like to inform you that structure for all these items are ready (only finishes work is left), hence we expect 70% of the payment of the quoted amount which is 1,14,500 excluding Rs. 50,000/- received as token advance.
Kindly let me know when can I collect the payment.
Please let me know if any clarification required on this.
Regards
Sachin Gothwal
Renderworx
+91-9999997236”
“Annexure-E[extract]
“Hi
Though rates for each items are given in the quotation sent earlier but please find breakup here.
a. Dining table rs. 65,000.
b. Dining chairs rs. 1,00,000.
c. Bed for master bedroom rs. 70,000.
10% discount is applicable on this cost.
Regards
Sachin Gothwal
Sent from Samsung Galaxy Note
Varnika sharam
Thanks Sachin,
Can you please provide us with the break-up as well? Plus the 10% discount. Just for our reference work.
Varnika
On Mon, Mar 18, 2013 at 2:41 PM, sachin gothwal
Dear Ambrish
As discussed with Jitender We are working on three furniture items in first phase.
a. Bed for Master bedroom.
b. Dining Table.
c. Dining Chairs.
I would like to inform you that structure for all these items are ready (only finishes work is left), hence we expect 70% of the payment of the quoted amount which is 1,14,500 excluding Rs. 50,000/- received as token advance.
Kindly let me know when can I collect the payment.
Please let me know if any clarification required on this.
Regards
Sachin Gothwal
Renderworx
+91-9999997236”
Similar is the communication in Annexure-E/ email of 20.03.2013 (referred above), wherein the revise quotation for dining table was of Rs. 65,000/- (in place of Rs. 77,000/-), dining chairs of Rs. 1,00,000/- (in place of Rs. 1,11,500/-) and bed for master bedroom of Rs. 70,000/-(in place of Rs. 95,000/-). Its total is Rs.2,35,000/-.
6.5.3. In this email, the opposite party has specifically asked an amount of Rs. 1,14,500/- excluding Rs. 50,000/- received as token advance. How this amount is mentioned? This amount of Rs. 1,14,500/- was computed on the basis of 70% of Rs. 2,35,000/- for three items, which comes to Rs. 1,64,500/- and after deducting Rs. 50,000/- of token advance, the quoted amount of Rs. 1,14,500/- arrives. This communication is of March 2013 by way of emails.
The plea of opposite party that BOQ was of November 2013, then how this kind of exchange of email and reducing the earlier quote rates for three items could be possible in March 2013? If there was other BOQ of January 2013, it could be produced and proved by the OP1, but it has not been done. If the total amount of three items was originally Rs.2,35,000/- in other BOQ, then there was no scope to revise quote rate. Thus, in all possibilities, it establishes that the BOQ of 23.02.2013 was there between the parties, the revised quote rates for three items were quoted on 18th March 2013 by emails exchanged between the parties. The email dated 20.3.2013 (Annexure-E) also reiterates and confirms that quotation were sent earlier. This evidence does not support the plea of OP1 that BOQ was of November 2013 but proves plea of complainants that BOQ was entered into on 23.02.2013. Then the amounts were calculated accordingly.
This material evidence of documentary record, confirms the case of complainant with regard to BOQ of 23.02.2013 and other specifications. The opposite party failed to establish that BOQ dated 23.02.2013 is actually of November 2013 or there was some omission or mistake of date. It is also relevant to mention that BOQ dated 23.2.2013 under letter head name/logo-mark of OP1, since it had generated it. Had there been BOQ of January 2013, then what prevented OP1 to furnish & prove BOQ of January 2013, if it was agreed between the parties? The circumstances are leaning towards the complainants.
6.6. At the cost of repetition, Annexure-A/ BOQ dated 23.02.2013 not only shows specification in words but also non-verbal pictures of furniture items to be manufactured and paragraph no. 22 of the complaint/paragraph no. 23 of the affidavit gives detail serial-wise, which corresponds to serial numbers of Annexure-A, by highlighting the furniture items delivered, not delivered and its defects. In order to highlight those deficiencies and defects in delivered furniture, Annexure-N (of complainants' paper book, page 83- 95) are the photographs of furniture items of their front side and of back side to demonstrate the deficiencies, defects etc. As in some of the items, there is no back covering, hinges on the bed were not fixed or not properly fixed/or no provision, the position of tables/ dining table not accommodating all the chairs etc. Similarly, the opposite party had also filed photographs of furniture (Annexure-5. OP1's paper book at page 27- 48 and Annexure-6 at Page no. 50) to demonstrate the condition/status of furniture in their workshop. Moreover, the opposite party in its reply/ evidence also refers certain defects, stated to be curable and to deliver the remaining furniture items on payment of balance amount.
By taking stock of circumstances explained by both the sides, it is apparent there were defects in the furniture items and some of the items were taken back for the repair but the same were not redelivered by the opposite party to the complainants. The opposite party is taking contradictory and paradoxical stand on vital aspects, like upholstery fabrics were not supplied or there was forgery of signature of OP2, however, at another place the OP1 admits that there was consumption of 187 meters of fabrics provided by complainants. There is no proof of forgery signature of OP2 nor OP2 has himself filed the pleading or evidence nor OP1 could prove at which place signature of OP2 was forged or how the acknowledgement of fabrics was not by OP2 on behalf of OP1. The record furnished by the complainants shows that fabric was received by the OP1. OP1 also confirms that OP2 is consultant of OP1 and he is not employee of OP2. There is no other fact/evidence by the OP1, as to how fabric used was received and there was consumption of 187 meter, for which Rs.84,150/- was reduced. On the other side, the complainants have been asking OPs by email as how much of the fabric received by them was used and the residue material.
6.7: The BOQ dated 23.2.2013 specifies dining table with set of 10 chairs, the dining table was meant & accommodating 8 chairs only but OP1 claims that order was for 8 chairs and later 2 additional/extra chairs were asked to be kept aside. However, there is no evidence by OPs that initially dining table with 8 chairs was ordered and there was separate order for two additional chairs for that very dining table or to be kept aside. Thus, the furniture of dining table with 10 chairs was not manufactured as per specification agreed upon. It is but natural, that dining table meant for 8 seats space could not accommodate 10 chairs. It is already admitted by the OP that one defective furniture was made because of measurement mistake.
6.8: The OP1 has imputed serious allegations that the complainants have destroyed the furniture themselves and the complainants have also opposed it vehemently that allegation are false and they asked the OP1 to establish these allegations strictly. However, there is no evidence of any fact by the OPs as to when and how a particular furniture was destroyed by the complainants themselves nor any circumstances are suggested to infer about self-destruction of furniture by complainants. The allegations put by OP1 are self-serving defensive allegations but they have not been proved against the complainants.
6.9: The OP1 has taken another stand/defence that there was under construction house of complainants and furniture was brought and delivered there, thus the furniture was damaged or spoiled there, since it was under construction house. Whereas the complainants' case is that it was new house for them, furniture was ordered and bought for their such new house in Kaushambi, Ghazibad and it was not under construction house. By looking at the pleading and evidence of OP1, there is no specific fact mentioned as to how it was under-construction house and at what stage. Generally in under construction house, there are chances of dust and dampness apart from other situations of floorings, painting, white-washing etc. The furniture items can be affected adversely either by dust or dampness or both or other factors as per actual stage of construction. The evidence of OP1 is silent as what kind of damages happened, if the complainants' house was under construction. Otherwise complainants' case is never of under construction house. There is also no evidence that OP1 had visited house of complainants and viewed any construction activities, which had ensued defects or damages.
6.10: The Complainants have also succeeded to establish that many furniture articles were not supplied to the complainants and the OP1 also admits that there were many items which remain undelivered on account of non-payment of entire amount as well as waiving of the discount component. The OP1 has calculated the amount/price of furniture by waiving off the discount of 10% on the plea of delayed payment, however, there is no whisper or any email or other express communication by OP1 to the complainants to that effect that 10% discount was waived off. In fact, as per email [Annexure-C/dt.18.3.2013 2:47pm], the OP1 had allowed 10% discount on furniture, which reads "surely 10% discount on all furniture items are acknowledged, Regards Sachin Gothwal". It is unconditional discount. Thus, once, discount is allowed unconditionally, then it cannot be withdrawn unilaterally. Accordingly, the complainants have also established their case of actual amount payable in respect of 52 furniture items booked, the amount paid was Rs.9,22,000/- however, all furniture were not delivered, which were worth of Rs. 4,32,000/-.
7.1: In view of the above, it is held that complainants have proved their case that total actual amount for 52 furniture item was Rs. 8,82,000/- after adjustment of upholstery 214 meter of fabric for Rs. 96,300/-. However, complainants have paid total amount of Rs. 9,22,000/-. Simultaneously, the OP1 could not establish its case of total amount of Rs. 12,22,500/- or of Rs.11,38,350/-[after adjusting Rs.84,150/- for 187 meter of fabrics].
7.2: The complainants have also established their case that furniture items delivered were not as per specifications and size, they were defective, incomplete, and also want of feasibility to use them, the complainants are entitled for refund of their amount of Rs.9,22,000/- paid by them to OP1. OP2 was a professional consultant to OP1, as such there is no liability of OP2 with regard manufacturing defects or non-delivery of many furniture items by OP1.
7.3.1: The complainants have mentioned amount of Rs,13,70,833/- as their claims, they have also filed calculations sheets, to demonstrate interest component, which were also protested by OP1. The amount computed was including interest component. In fact, the complaint was pleaded claimed amount as well as interest component, on the pattern of a civil suit for recovery of paid amount by including interest upto date of filing of complaint, whereas in consumer dispute the complaint is tried summarily and interest component is to be dealt separately as per procedure laid down in the special legislation of the Consumer Protection Act. There is also other component of compensation/damages and litigation costs claimed in the complaint separately.
7.3.2: Since complainants have established the complaint of deficiency in services and unfair trade practice against OP1, thus the complainants are held entitled for refund of paid amount of Rs.9,22,000/- from OP1 and interest @4% per annum is allowed in their favour against the OP1 from the date of filing of this complaint till the date of realisation of amount. However, the OP1 can take back from complainants the furniture item delivered in the conditions 'as it is existing on basis' and complainants will deliver these item back.
7.4: The circumstances of the case are speaking themselves in respect of trauma, inconvenience faced by the complainants, the last phase of email communication exchanged also reflects bitter/& tough words exchanged. Thus, complainants are awarded damages of Rs.20,000/- apart from costs of Rs.5,000/- in their favour and against OP1.
7.5: Hence, the complaint is allowed in favour of complainants and against OP1 to refund amount of Rs.9,22,000/- interest @4% per annum from the date of filing of this complaint till the date of realisation of amount, apart from damages of Rs.20,000/- & costs of Rs.5,000/- within 30 days from the date of receipt of this order. Moreover, OP1 can take back from complainants the furniture item in condition 'as it is existing on basis', at its costs and risks within 60 days from the date of receipt of this order and complainants will deliver these item back. In case, the OP1 does not take back the furniture within that period, then complainants shall not be accounted for any purposes.
7.6: There is no Order against OP2, he was consultant to OP1, the complaint against OP2 is dismissed.
8. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules.
9: Announced on this 08th day of February, 2023 [माघ 19, साका 1944].
