DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS ,

AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

                C.C. CASE NO. _144_ OF ___2015_

DATE OF FILING : 24.03.2015                             DATE OF PASSING JUDGEMENT:  2.02.2018

Present                      :   President       :   Ananta kumar kapri

                                        Member(s)    :      Subrata Sarker & Jhunu Prasad                          

COMPLAINANT        :Samitendu Dutta,S/O Sikhendu Kr.Dutta ,210A,Unique Park,Behala,P.S-Parnasree, Kolkata- 700034.

-VERSUS  -

O.P/O.Ps                   :    1.Rishibrata Roy.208/2 Unique Park,Behala,P.S-Parnasree, Kolkata-700034.

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                                            JUDGEMENT

Sri Ananta Kumar Kapri, President

  Central to the embarrassment  of the Complainant, which compelled him to file the instant complaint U/S-12, C.P. Act, 1986 is that he purchased 2 cars- One Sumo bearing no. WB-02Y6980 and another Sumo Victa WB-02E-5330 from the O.P. and paid the full consideration price of Rs. 3,36,500/- to him. But the O.P. has not delivered the Vehicles to him and therefore he now prays for, as goes the amended version of the complaint, return of full price with interest, compensation and litigation cost.

                 The O.P. is contesting the case by filing W.S. wherein he contends that the entire allegation of the Complainant is nothing but figment of imagination. His positive case is that the Complainant was his partner in the business of pool car engaged in carrying children to the school. Disagreement raised its ugly head between them and as a result, the business stopped and a final settlement was reached between them at that stage. On full and final settlement, he ( O.P.) was entitled to get Rs.  2,36,500/- from the Complainant and the Complainant made payment of the said amount to him, which he also acknowledged by issuing money receipt. To him, the case is filed motivatedly and should, therefore ,be dismissed in limini.

                                                    Points for determination .

1. Did the O.P. actually sell the Vehicles to the Complainant, having received the consideration price?
2. Is the complainant  justified to refund of the consideration price, as prayed for?
3. To what other relief as reliefs ?

                                   Decision on with Reasons.

Points nos 1 & 2.

      Both the parties have filed affidavits-in-chief with their documents ( Xerox ) and these are kept in record. Already heard the submissions of Ld. Lawyers for the parties .Considered all these.

       It is well established rule of law that a person will not be allowed to say contrary to what is stated by a document to which he is executant  and this is provided in Sec. 91 & 92 of Evidence Act. In the instant case, the money receipt filed by the Complainant is not disputed and the O.P. has also admitted its execution by him. A perusal of the money receipt shows that there in clear mention of the Word “ Sale “ and the receipt of Rs. 2,36,500/- as consideration price of the Vehicle. In the circumstances, the O.P. cannot be allowed to say that the said money receipt is not receipt of sale but a receipt of full and final settlement of their alleged business. The said money receipt seems to be a host in itself and it unhesitating by establishes that the O.P. sold the Vehicle or Vehicles whatever may be, for consideration price, having received the consideration price of Rs. 2,36,500/-.

      There is another cogent fact which also goes to put premium to the above established fact. The Complainant has stated in complaint that the O.P. made over two forms , i.e. Form 29 & 30 ( Form for Transfer of ownership of Vehicle ) to him during payment of consideration price. These 2 forms (Xerox) have been filed by the Complainant and these are also signed by the O.P. These two forms have also remained unchallenged ; they indicate and indicate only that the Vehicle was sold to the Complainant by the O.P.

     Ld. Lawyers for the O.p. has argued that the Vehicle bearing no. WB-02E5330 stands in the name of the school and the O.p. cannot sell it. To prove it , he has filed the insurance paper of that Vehicle. According to him, this Insurance paper alone goes to pinpoint that the Complainant has made an attempt to build a castle on the air. We are not impressed by the above submission, because it is a two- edged sword; it might also be that the O.P. cheated the complainant by misrepresentation. Be that as it may, we do not want ourselves to be dragged into that dispute. But the fact remains that the O.P. received the price of Rs. 2,36,500/- from the Complainant, whether be it for one Vehicle or two Vehicles. There is no documentary evidence adduced by the Complainant to prove that Rs 1 (One ) Lac was paid to the O.P. by him. Even, no date for such payment is also mentioned anywhere in the complaint. In the circumstances, we do hold that the Complainant has failed to prove the payment of Rs. 1 (One ) Lac to the O.P.

Now the Complainant prays for return of the price paid and he is deemed entitled to get it. Non –delivery of the Vehicle after having received the price thereof is undoubtedly a deficiency in service on the part of the O.P.

    Point nos. 1 & 2 are thus disposed of in favour of the Complainant.

Point No. 3

  The consideration price was paid to O.P. on 14/04/2014 and since then, the delivery of the Vehicle has not been made by the O.P. to the Complainant till date. The said price has been lying in the hands of the O.P. since then and the Complainant has certainly incurred a huge loss of money which he could have earned by way of interest.  The O.P. will have to compensate this loss and he will have to pay punitive , interest on the said price to make good the loss of Complainant. No other compensation is awarded in this case in the circumstances.

  Point No. 3 in thus answered in favour of the Complainant also.

Hence,                   

                                                        Ordered,

    That the complaint case be and the same is allowed on contest against the O.p. with litigation cost of Rs. 5000/-.

     The  O.P.. is hereby directed to refund Rs.  2,36,500/- to the Complainant with interest @ 10 % P.A. thereon from the date of payment ,i.e. 14/04/2014 till full realization thereof and also to pay the litigation cost, within a month of this order failing  which , the returned amount will bear interest @ 15 % p.a. from the  date of payment till full realization thereof.

    Let a free copy of it be supplied to the parties forth with.

                                                                                                                           President

We / I    agree.

                              President                        Member                               Member

   Dictated and corrected by me