Orissa

Jajapur

CC/101/2013

Kalpataru Panda - Complainant(s)

Versus

Sagar Ranjan Rout - Opp.Party(s)

Jagannath Jena,P.K.Daspatnaik

05 Feb 2015

ORDER

                                     IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:  1.Shri Biraja Prasad Kar, President,

                                                                        2.Sri Pitabas Mohanty, Member,

                                                                        3.Miss Smita Ray, Lady Member.

                                                                                    Dated the 5th day of February,2015.

                                       C.C.Case No.101 of 2013

Kalpataru Panda,  S/O Hare krushna Panda

Vill. Ramdaspur (Pathapur)

P.S. Balichandrapur ,Dist.Jajpur.                                                         …… ……....Complainant .                                                                       .

                   (Versus)

1.Sagar Ranjan Rout, S/O Kalandi Rout,Vill.Chorda,P.O/P.S.Jajpur Road

    Dist.Jajpur.

2. Gagan Bihari Das, S/O Late Dhruba ch.Das,Vill.Manapur,P.O. Odisho-

     Andeigoda,P.S. Kuakhia, Dist. Jajpur .At present:Proprietor,(T.E.A)

    Bhagabati Associates partners,Jaraka.                                                                                                                                                                                                                                                                                                                                                …………………..Opp.Parties.

For the Complainant:               Sri J.Jena, Sri P.K.Daspattnaik, Advocates.

For the Opp.Parties:                None.                                                                                                                        

                                                                    Date of order:   05. 02. 2015.

SHRI  PITABAS  MOHANTY, MEMBER .

                        The petitioner has come with this complain petition alleging deficiency in service on the part of O.P no.1 and 2 for breach of contract.

                        Brief facts of the case as per complain petition are that the petitioner being the owner of TATA SUMO bearing Regd.No.0R-04-E-4135 wanted to sell the same due to his incapability to manage and pay back the financier. As the O.P no.1 wanted to purchase the above cited vehicle, the O.P no.2 who was earlier known to the petitioner negotiated with the petitioner regarding the cost of the vehicle. After negotiation the market value of the vehicle was settled at Rs.2,15,000/- in presence of O.P no.2 and one Surendra Kumar Behera. As per decision on 19.03.2013 out of the market value of Rs.2,15,000/- towards the cost of vehicle  through the O.P no.1 paid Rs.20,000/- on 19.03.2013 and Rs.30,000/- on 20.03.2013 to the petitioner but as regards the rest amount of Rs.1,65,000/-, the O.P no.1 agreed to pay the same within 20 days from the date of agreement i.e prior to 10.04.2013. In addition to it further it was decided in between the parties that the vehicle will be kept in the custody of O.P no.2 at Jaraka and the O.P no.2 will not hand over the vehicle to O.P no.1 nor O.P no.1 can run the vehicle on the road till entire balance money is paid by O.P no.1 to the petitioner. It was also agreed in between the parties that in, case the O.P no.1 did not pay the amount of Rs.1,65,000/- prior to 10.04.2013 then the O.P no.1 will pay Rs.500/-  per day as penalty from 11.04.2013. Accordingly an agreement though was executed on 19.03.2013 before the Notary Public having the above  term and conditions as agreed by both the parties as well as  after taking over possession of the above vehicle , the O.P no.2 issued a blank S.B.I cheque in favour of the petitioner but subsequently  the O.P no.1 neither paid the balance amount of Rs.1,65,000/-  nor paid Rs.500/- as penalty per day from 11.04.2013 which violates the term and condition of the agreement dt.19.03.2013  . Further it is stated by the petitioner that the O.P.no.2 has handed over the vehicle to O.P no.1 so as to enable him to run the vehicle on the road. As per term and condition of the agreement though the petitioner has transferred the ownership in the name of O.P no.1 but due to non- payment of the agreed amount the petitioner served legal notice to O.P no.1  to pay the balance amount of Rs.1,65,000/- and Rs.500/- per day as penalty. After receipt of the legal notice the O.P no.1 without paying the demanded amount remained silent. This indicates that both the O.Ps. have violated the terms of the agreement dt.19.03.2013. Accordingly the petitioner has filed the present dispute alleging deficiency in service on the part of O.P no.1 and 2 with the prayer to award Rs.2,98,500/- towards the balance amount of cost of the vehicle, penalty, mental agony and cost of litigation .

                        In the present case the O.P no.1 and 2 neither appeared nor filed the written version for which both the O.Ps. have been set-expartee on 15.02.2014.

                        Accordingly after perusal of the record along with the term and condition of the agreement filed from the side of the petitioner we are inclined to dispose of the dispute as per our observation stated below:-

1. Admittedly the petitioner has filed the present dispute since as per term and condition of the agreement dt.19.03.2013 the O.P no.1 did not pay the balance amount of Rs.1,65,000/- towards the balance cost of the above cited vehicle.
2. After verification of the agreement dt.19.03.2013 it is also cristal clear that both the petitioner and O.P no.1 have executed the agreement wherein the O.P no.2 and  one Surendra Kimar Behera have signed as witnesses.
3. The term and conditions of the agreement dt.19.03.2013 clearly go to establish that the O.P no.1 is required to pay Rs.1,65,000/- prior to 10.04.2013 and in case of default the O.P no.1 shall be liable to pay Rs.500/- per day as penalty from 11.04.2013.
4. In view of the above factual aspects though it is the duty of both the O.Ps. to clarify their liabilities  but both the O.Ps. neither appeared nor filed the written version for which they have been  set-expartee on 15.02.2014. Accordingly we are in the considered view that in the present case the O.Ps. have no defence on merit as per observation of Hon’ble National Commission reported in 2013(1) CPR-507-NC( Mahindra & Mahindra Vrs. Virendra Singh). As such we have no hesitation to accept the averment of the complaint petition as uncontroverted in view of the  observation of Odisha State Commission reported in 2003-CLT-Vol-96-page-15-Odisha.
5. Similarly after verification of the advocate notice it is  also observed that due to non payment of balance amount amounting to Rs.1,65,000/- the petitioner has served a legal notice to O.P no.1 and after receipt of the legal notice  the O.P no.1 without paying the amount remained silent . This seems  that the O.P no.1 has played hide and seek  game with the petitioner to pay the balance amount of Rs.1,65,000/- as per observation of Hon’ble National Commission reported in 2013(1) CPR-456-NC (M/S Reeta Vrs.Sikandar singh) wherein it is held by the Hon’ble Commission that

           “ Non-reply of legal notice may draw adverse inference “.

     F.Owing to our above narrated analysis  we have also come across with the observation of Hon’ble Supreme Court reported in II (1996)CPJ-25-SC-vide page-26, wherein it is held by the Appex court that

“ where there is specific term in the contract the parties are bound by terms in the contract “.

          In addition to it as per observation of Hon’ble National Commission reported in 1991 (2) CPR-662-NC (Divisional Manager LIC Vrs. Uma Devi) wherein it is held by the Hon’ble commission that

                        “ A breach of contract itself may result deficiency in service “.

                        For the reasons recorded above it is clear that law on the point is conclusively in complainant’s favour and consequently the dispute must succeed and is hereby allowed.

                                                                        O R D E R

                        In the result the dispute is allowed against the O.P No.1 and 2 . Both the O.Ps. are directed to pay Rs.1,65,000/- towards balance cost of the vehicle along with Rs.1,03,500/- towards penalty from 11.04.2013 to 03.11.2014. In addition to it both the O.Ps. are also directed to pay Rs.10,000/- (Ten thousand) as compensation and Rs.2,000/-(two thousand) as cost of litigation . The above awarded amount shall be paid 50% each by O.P no.1 and O.P no.2  within one month after receipt of the order failing which the awarded amount will carry 9% interest from the date of filing the dispute till its realization . The petitioner is also directed to return the blank cheque to O.P no.2 after obtaining a receipt from O.P no.2               

This order is pronounced in the open Forum on this the 5th day of February ,2015. under my hand and seal of the Forum.                                                                                                               

                                                                                              (Shri Pitabas Mohanty)                                                         

 (Shri Biraja Prasad Kar )                                                                Member.                                                                      

            President.                                                  Typed to my dictation & corrected by me

                                                                                                                                                                            

 

 (Miss Smita Ray)                                                                (Shri Pitabas Mohanty)                                                         

       Member.                                                                                   Member.