Order No.                 .

This is an application u/s.12 of the C.P. Act, 1986.

          Complainant Smt. Mita Mukherjee by filing this complaint has submitted that on 28-12-2010 she ordered for one Noa-Bala weighing 10.500 gm of 22 kt. Gold value Rs.21,785/- against partly cash advance of Rs.10,000/- and partly deposit of old gold weighing 5.800 gm 22 kt. Value of Rs.11,785/- vide order receipt no.39817 dated 28-12-2010 but due to urgent need of money on 01-01-2010 she cancelled the said order and the manager refunded partly paid advance amount of Rs.10,000/- vide voucher no.11/00141 dated 01-01-2011 but did not refund the old gold weighing about 5.800 gm. 22 kt.

          Lastly she sent one letter through her representative by speed post to refund the value of old gold at present market price but no reply has yet been received though the letter was delivered on 24-05-2012 as per track report.  It is further submitted that she made complaint through her representative, to the Assistant Director, Consumer Affairs & FBP, Kolkata Central, R.O. but no favourable order was passed and ultimately, finding no other alternative and also for the mis-conduct of the OP complainant filed this compliant for refund of the said gold of 5.800 gm. 22kt or the present market price of the same.

          On the other hand OP by filing written statement denied all allegations  as made by the complainant regarding transaction with Senco Gold Ltd. and the complainant.  But admitted that Mita Mukherjee came to their Bowbazar showroom dated 28-12-2010 for giving an order of Noa Bala.  She deposited old gold jewellery weighing 5.800 gms. and it was valued it @Rs.2032/- per gm. at that time and the valuation of the jewellery was at that day Rs.11,786/- according to the policy and central IT system of the company M/s. Senco Gold Ltd. the value of Rs.11,786/- was booked against her order vide order no.11D39817.  Along with the old gold jewellery valued at Rs.11,786/- she further deposited a cash advance of Rs.10,000/- for the order no.11D39817 on the same day.  Accordingly, the order was placed at their head office and old gold was sent for melting and processing to their head office on the next day.  After three days i.e. on 31-12-2010 complainant wanted to their showroom and wanted to cancel the said order along with that, she wanted to take back the old gold and the money given to the OP in advance but money was returned vide voucher number 11/00141 and they requested her to purchase jewellery against the old gold that was given by her and she agreed to do the same and it was agreed that that she will adjust Rs.11,786/- value booked against that old gold later on.  But after one and half year she came back to take back the gold of 5.800 gms 22 kt and or in current market valuation which was impossible because the OP advanced the amount and old gold to make an ornament.  According to their company policy, if she purchases any jewellery upto 5.800 gms, she will enjoy the same at previous rate Rs.2032/- per gram even though the market prices has been increased.  This is their goodwill and policy and the gold value given for exchange policy is different from Gold value given for sale against cash.  The customer wanted to exchange and the value was offered accordingly.  For cash, the value would have been 8% lower. 

Practically the company M/s. Senco Gold Ltd. suffered a huge loss because they had already placed the order for the Noa to their Karigar and allocated the gold and due to the cancellation of the order, they suffered a loss of making charges paid to the Karigar, but due to long term relationship and satisfaction of customer, they returned the money of Rs.10,000/- which she paid in cash as advance.  OP has stated that they cannot pay cash for old gold that has been booked for an order and the customer is free to buy any jewellery against that.  OP has further submitted that since the price of gold has been increased she tried to exploit the Company and is demanding the value of old gold in today’s market price.  This opportunistic behaviour is totally against the law of sales since the understanding between the company and customer was that the old gold was given at a value of Rs.11,786/- for order of a jewellery and not for cash.  So, OPs are sticking to their word, but the customer is changing her stance and thoughts according to market conditions and against their sales policy and OP has prayed for judging the matter by the Forum and to dispose of the issue accordingly.

Decision with Reasons

On considering the entire material on record including the complaint and written version of the OP it is clear that complainant deposited old gold weighing about 5.800 gm. and also advanced a sum of Rs.10,000/- for preparing one Noa Bala weighing about 10.500gm. on 28-12-2010 and undisputed fact is that complainant cancelled this order on 01-01-2010 and advance paid amount of Rs.10,000/- has been refunded but the old gold of 5.800 gm 22 kt. was not refunded by the OP.

          Fact remains OP in their written statement has admitted that said gold was taken by them for the purpose of preparing a Noa Bala but after receipt it is sent to the karigar (goldsmith) for preparation of Noa Bala.  Thereafter, complainant cancelled it but till today they are willing to handover a new item of gold ornament weighing about 5.800 gm. to the complainant only charging the making charge and complainant was agreed to take it as per above term but ultimately did not agree.  OP is not able to refund that 5.800 gm. Gold to the complainant but at best value of the gold as on the date of deposit i.e. 2032 per gm. may be paid but not the present market price.

          Ld. Lawyer for the OP at the time of advancement of argument vociferously argued and submitted that 5.800gm. of gold was purchased by Senco Gold Company at a price of Rs.2032/- per gm. from the complainant.  So, the OP at best can refund amount of the said old gold of Rs.11,786/- but not the present market price of gold of 5.800 gm. but this Forum again and again asked the Ld. Lawyer for the OP whether the old gold weighing about 5.800 gm was sold by the complainant to the Senco Gold Company on that date or not but peculiar factor is that Ld. Lawyer of the OP convince by showing a sale receipt before this Forum and tried to convince that it was sold to the Senco Gold Company on that date and in support of that Ld. Lawyer for the OP tried to rely upon the purchase memo dated 28-12-2010 and if we rely upon the Ld. Lawyer of the OP including the purchase memo dated 28-12-2010 and at the same time the written version of the OP it is found that the argument as advanced by Ld. Lawyer has no place in view of the document of the OP that gold was not sold to the Senco Gold Company but it was deposited by the complainant and OP is willing to handover a gold ornament of 5.800 gm to the complainant after assessing the making charge.  Then it is clear that Ld. Lawyer for the OP submitted some unfounded allegation that complainant sold the said gold to the OP.  But it is known to all if any old gold is deposited to any gold shop they accept it but such a receipt is prepared by owner of the gold shop for the purpose of preparing their daily stock of the gold as per Gold Control Act because they have their license and as per license they have certain obligations to keep gold up to certain limit per day for which such a purchase memo is prepared but actually no payment is made against them then such purchase memo is made nothing a form of receipt in respect of taking the gold from the customer for preparation of new ornament and considering the above fact we have gathered that Ld. Lawyer for the OP has tried to deviate from the written version of the OP and also tried to misguide the Forum in such a fashion that anyhow the Forum may be convinced the old gold was purchased from the complainant but that is not the truth that aspect is admitted by the OP in the written version that the OP never sold his gold weighing about 5.800 gm but that purchase memo was issued a receipt of the said old gold and actually on the basis of the purchase memo no amount of Rs.11,786/- was paid to the complainant on 28-12-2010 but gold was kept in their custody for preparation of new ornaments and without charging making charge and OP is willing to hand over said gold of weighing 5.800 gm. in favour of new ornament only then it is proved that OP has admitted that complainant never sold 5.800 gm. 22 kt. to the OP on 28-12-2010 by the said purchase memo as ventilated by the Ld. Lawyer for the OP.   But it is a receipt in support of acceptance of the said old gold ornament for preparation of new ornament. 

          If we consider the written version of the OP we are sure that OP is still willing to handover the gold ornament of 5.800 gm to the complainant but not old gold because it is not possible for them as claimed.  So, in view of the above fact we are convinced that complainant is entitled to get back Gold 22 kt. weighing about 5.800 gm from the OP and OP is willing to handover it but complainant’s claim is that he wants to get back the deposit of gold of weighing about 5.800 gm but the OP’s plea is that he is willing to refund it in new form when it is already prepared an ornament weighing about 5.800 gm may be taken by the complainant only paying making charge to be paid by the complainant. 

          So, after overall assessment and evaluation of the entire matter we are confirmed that defence of the OP in respect of payment of Rs.11,786/- against old gold weighing about 5.800 gm to complainant cannot be accepted when complainant did not sell it to the OP so the argument as advanced by the Ld. Lawyer for the OP was misguiding and without any foundation because Ld. Lawyer for the OP roamed outside the OPs written version and presented a new theory to accept but anyhow we are not satisfied about the argument as advanced by the Ld. Lawyer in view of the fact such a story is not in the written version when OP has admitted that he is willing to return ornaments of 5.800 gm as a new item as per choice of the complainant but only making charge shall be assessed.  So, we are convinced that complainant is entitled to get new ornament weighing about 5.800 gm from the OP for that purpose by paying making charge what shall be assessed by the OP.

          Taking into entire facts and circumstances into consideration and admission of the OP in the written version we are convinced that under any circumstances OP cannot deny to return the gold of 5.800 gm to the complainant but now the complainant, the aged lady is not in a position to take any new ornament but fact remains gold is within the custody of the OP then OP is bound to refund the said gold of weighing about 5.800 gm to the complainant and if OP is unwilling to refund it in that case OP shall have to pay the present market price per gm. after assessing the amount in respect of 5.800 gm. of gold and also some compensation because complainant has been harassed by the OP for adopting an unfair trade practice by OP the renowned gold selling ornaments company and it is their tactics which is adopted in all the case because it is the business tactics of the Senco Gold and other Gold companies to receive old gold at the time of preparing new one but at the time of refunding they are not refund the gold but they are willing to return the amount as on the date of receipt of the old gold but that cannot be the fair business practice at all.  Anyhow we have gathered that complainant has been able to prove beyond any manner of doubt that as a consumer she is entitled to get back of the deposited gold weighing about 5.800 gm from the OP and OP is bound to refund it and, in fact, OP cannot impose any condition for refund of the gold under any circumstances.  When in this case unfair trade practice on the part of t he OP is well proved and when OP is willing to refund the said gold not as gold but as ornament and when complainant is not willing to accept it then there is no other alternative but to allow this complaint by directing the OP to return and refund 5.800 gm gold and if OP is unwilling to refund it in that case the total present market price of said gold shall be paid to the complainant within one month from the date of order along with compensation and litigation cost as would be awarded.

In the result, the case succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest with a cost of Rs.5,000/- (Rupees Five thousand only) against the OP.

          OP is directed to return and refund gold weighing about 5.800 gm within one month from the date of this order and if OP is unwilling to return it in that case present market price of the said gold amount shall be paid within one month from the date of this order to the complainant and also compensation of Rs.5,000/-(Rupees Five thousand only) to the complainant along with cost as awarded.

          If OP fails to comply the order within the stipulated time in that case for adopting unfair trade practice the OP shall have to pay punitive dam ages to the extent of Rs.25,000/- (Rupees Twenty Five thousand only) which shall be paid to this Forum within 7(seven) days if the order is not complied within the stipulated time.

          OP is directed to comply the order failing which penal action shall be started for which he shall be prosecuted u/s.27 of the C.P. Act and in that case further penalty of Rs.10,000/- (Rupees Ten thousand only) shall be imposed him.

          OP to comply the order very strictly.

Dictated & Corrected

           by me