Hon'ble Mr. Haradhan Mukhopadhyay, President.
The pith and substance of the present case is that the Complainant M/s Bengal Motors represented by its partner Sri Rajen Sarkar is carrying on the said business due to maintain his livelihood under the name and style Bengal Motors and for sell viz. power trailers and accessories of power trailers. The OP M/s Shrachi carries on business from the address given where from various tractors and tools are supplied after taking advance by means of advertisement. The Complainant being lured by the said advertisement met with the OP in March, 2018 for intending to purchase some tools for tractor i.e. thrasher, rotaviator etc. After discussion the OP agreed to sell the said goods within 7 (seven) days on deposit of money with assurance of rendering proper service. Subsequently, the Complainant deposited Rs. 4,00,000/- into the account of OP through RTGS on 05.05.2018 for purchasing the thrasher. After depositing the said money, the Complainant did not get the said machinery from the OP and he took dilly-dally attitude over the matter. Subsequently, on 02.06.2018, the OP refunded Rs. 2,00,000/- out of the said Rs. 4,00,000/- for which the Complainant was in hard up and faced loss. Thus the OP failed to comply with the terms and conditions of the sell which tantamount to deficiency in service. Accordingly, the Complainant served a legal notice through his Advocate on 06.07.2018 for refund of the remaining advance money. After getting that notice, the OP refunded remaining Rs. 2,00,000/- to the Complainant on 21.07.2018 without interest. Due to said misdeed of the OP, the Complainant sustained irreparable loss and mental anxiety. The cause of action for the present case arose on 05.05.2018 and is continuing. The Complainant prayed for an award for Rs. 1,00,000/- towards mental pain and agony and harassment and Rs. 5,00,000/- towards unfair trade practice and Rs. 15,000/- towards cost of proceedings against the OP.
The OP denied each and every allegation by contesting the case through their W/V. The OP also challenged that the case is not maintainable on the ground that the Complainant is not a Consumer as he claimed himself as a businessman in relation to the OP and he runs his business for resell in his showroom.
The positive case of the OP in brief is that the OP is a manufacturing company and the Complainant happened to be the proposed dealer of the OP. The OP contacted with the Complainant several times to fulfill the signing of the Contracts between them but the Complainant never forwarded the details including the KYC, GST details, Trade License, PAN Card, Professional Tax etc. The OP refunded the 50% of the amount i.e. Rs. 2,00,000/- of the Complainant as the Complainant did not provide the documents and also requested that the rest 50% i.e. Rs. 2,00,000/- would be refunded if the said documents are not supplied. The transaction between the parties was Business to Business and not Business to Consumer. The OP came to know about the ill motive of the Complainant through the legal Notice. The present case is filed just to harass the OP. The OP, therefore, prayed for dismissal of the case in-limine.
The points involved in the dispute between the Complainant and the OP demands for ascertainment of the following points in dispute for proper adjudication of the case.
POINTS FOR DETERMINATION
- Whether the Complainant is a Consumer under the C.P. Act and the present case is maintainable in its present form and prayer?
- Whether the Complainant is entitled to get any relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
DECISION WITH REASONS
Point No. 1:-
The present point relates to the very essence of the case as to whether the present case is maintainable and the Complainant is a Consumer or not.
The OP raised a big question as to the status of the Complainant on the ground that he uses to sell the product for resell and for commercial transaction which falls under the category of Business to Business and not Business to Consumer.
Ld. Advocate for the Complainant vehemently raised objection to that point on the ground that the Complainant runs his business for earning his livelihood and not for commercial purpose.
After perusing the complaint, it transpires that the Complainant in the very first paragraph of his complaint pleaded that he runs his business just to maintain his livelihood. The OP in his W/V did not deny the said fact and put the Complainant to its strict proof.
It is the settled position of rule of pleading that, the facts not specifically denied cannot be considered as not proved and an evasive denial of any fact does not put the asserting party to prove it with evidence. However, the Complainant filed evidence on affidavit as an additional measure wherein he categorically stated by affidavit that he carries on business due to maintenance of his livelihood.
The OP did not deny the said fact by filing any counter affidavit. On the contrary, he filed a petition on 28.04.2022 by stating that his W/V may be considered as evidence on his behalf. Thus the OP could not lead specific evidence by denying the claim of the Complainant that he runs his business for his livelihood.
Accordingly, after assessing the pleadings and evidence on record, it can be held that the Complainant is a Consumer under the CP Act.
The OP also raised the question that this Commission has no jurisdiction to entertain the claim of the Complainant, as the transaction has not taken place here.
After perusing the pleadings and the evidence on record, it transpires that the Complainant claimed to have been inspired to purchase through advertisement about the said tools for tractor.
Nowadays, online purchase takes place despite there is not having any place of business at the place of the customer but the customers are attracted by the advertisement and use to purchase goods which also give rise to cause of action. Mere the fact that, OP resides in Kolkata cannot be a just ground to deny the claim of the Complainant.
Ld. Advocate for the Complainant rightly argued that the Complainant sent money from Cooch Behar to the OP which was duly received by the OP and refunded to the Complainant. Thus the entire transaction took place from Cooch Behar, which gave rise to the cause of action for the present case within the jurisdiction of this Commission.
The OP referred to a decision reported in (1995) 3 SCC 583 wherein it was decided that Business to Consumer is disputes and not for Business to Business is dispute.
The said case law does not apply here because the Complainant cannot be said to have acted as a dealer of the OP. It is the only claim of the OP that the Complainant is a proposed dealer. Despite that the OP refunded the money and as such there is nothing to show that the Complainant acted as a dealer of the OP.
That apart, the Complainant runs his business for his livelihood. The OP could not adduce any evidence to prove the contrary.
The discussion made herein above leads to the inference that the present case is legally maintainable and the Commission has jurisdiction to entertain it.
Accordingly, Point No.1 is decided in affirmative and goes in favour of the Complainant.
Point No. 2 & 3:-
Both the points are very closely interlinked with each other and as such these are taken up together for convenience and brevity of discussion.
The Point No.2 &3 relate to ascertainment as to whether the Complainant is entitled to get the relief as prayed for or to any other relief.
After perusing the case record, it would be found that the Complainant advanced a sum of Rs. 4,00,000/- to the OP for purchasing some tools for tractor on 05.05.2018. Since, the OP despite receiving the said money, did not deliver the said machineries, so the Complainant demanded refund of the money. Accordingly, the OP refunded Rs. 2,00,000/- on 02.06.2018 out of Rs. 4,00,000/- and thereafter refunded remaining Rs. 2,00,000/- on 21.07.2018 without any interest after getting the legal notice.
The OP also admitted that they refunded Rs. 4,00,000/- to the Complainant.
It is the settled position of law that admitted facts need not be proved, so the Commission comes to the finding that the OP did not comply with the terms and conditions for supplying the said goods for which they were compelled to refund the money advanced by the Complainant.
However, the Complainant in addition to the oral evidence in the form of evidence on affidavit adduced documentary evidence like Annexure-A like visiting card of the OP, Annexure-B being the account statement wherein a sum of Rs. 4,00,000/- was paid to the OP by the Complainant and Annexure-C being the sum of Rs. 2,00,000/- refunded by the OP to the Complainant.
It stands also proved by Annexure-D that the legal notice was served upon the OP and having received the same, the OP refunded the remaining sum of Rs. 2,00,000/-.
Since the major allegation of the Complainant stand proved by the Complainant. So let us move to the other parts. Now the main point remains for ascertainment is whether there is any deficiency in service.
After assessing the evidence as discussed herein above, it is crystal clear that the Complainant deposited Rs. 4,00,000/- on 05.05.2018. But the OP did not supply the machine, instead they refunded Rs. 2,00,000/- after 28 days.
The OP could not prove any scrap of paper to establish any defence plea as to why there was delay in supplying the said machineries.
The Complainant claimed that he was unnecessarily harassed for the said delay and recovery of the advance money.
Ld. Lawyer for the Complainant argued that the Complainant is entitled to get compensation for such harassment. The argument has reasonable force.
Other than raising question as to the maintainability of the case, Ld. Defence Counsel could not advance any argument on the said point.
It is also found from the case record that, the OP refunded the rest Rs.2,00,000/- to the Complainant on 28.07.2018 through SBI (Annexure-E). It means that the final refund was made after two and half months of the said advance money paid by the Complainant. It stands well proved that in both the cases the OP did not pay any interest over the said huge amount of Rs. 4,00,000/-.
Even the OP did not reply to the legal notice of the Complainant wherein specific allegation was made by the Complainant against the OP. Annexure-D/2 clearly reveals that the said notice was duly served upon the OP.
All these documents clearly support the case of the Complainant as corroborating documentary evidence.
The last but not the least point of discussion is the direction of the Hon'ble State Commission by its Order dated 07.02.2019 wherein it was directed to ascertain the question as to whether the intended purchase was commercial purpose or not after recording the evidence.
In order to discuss the said point and comply with the Order of the Hon'ble State Commission regard being had to the evidence led by the Complainant.
The Complainant categorically pleaded that he advanced the said money for purchasing the said goods due to maintain his livelihood.
The OP did not deny the said fact. The OP in their W/V just escaped the said allegation by stating in the W/V that it is matter of record and the Complainant is put to the strict proof thereof.
In addition to the said pleading, the Complainant also adduced evidence by means of evidence on affidavit. On the contrary, the OP could not lead any evidence on affidavit. The OP, however, filed a petition to consider their W/V as evidence. Therefore, the onus is shifted upon the OP to establish that the Complainant intended to purchase the said goods for commercial purpose. In order to discharge the said onus, the OP did not call for any document from the Complainant to know the volume of the business, the annual turnover of the Complainant, the nature of business of the Complainant and the different registers like stock register, sales register, cash memo book etc.
Be that as it may, in fact, the said transaction actually did not get the final shape and as such there is nothing to show that the Complainant intended to purchase it for commercial purpose.
Regard being also had to the cross-examination by the OP to the Complainant in the form of questionnaires. The Complainant replied to the said questionnaires. Having perused all the answers, it can reasonably be held that there is nothing to show that the said goods were intended to be purchased for commercial purpose.
The OP, however, relied upon some case laws in support of their argument. Ld. Defence Counsel referred to a decision being reported in (2009) 4 CPJ 297 wherein it was held that the Complainant has not mentioned that the services availed by the Complainant were exclusively for earning livelihood, so the Complainant does not fall under the CP Act.
The case law does not apply here because the Complainant stated here that he runs his business for his livelihood.
Another decision of Hon'ble Supreme Court was also relied upon by the OP being reported in Civil Appeal Nom 4193 of 1995 wherein it was held interalia that the Act provides for Business to Consumer disputes and not for Business to Business disputes.
The said case law is not applicable here for the reason that the OP did not complete the Business transaction. Secondly, there is nothing to show that the Complainant sells the goods for Business to Business.
The OP further relied on a decision of Hon'ble Apex Court reported in Civil Appeal No. 1866 of 2002 dated 13.04.2009 wherein it was held interalia that there has to be some cogent material before the Commission to ascertain the point of unfair trade practice.
If we consider the aforesaid ruling in its true perspective, it would be found that there is hell and heaven difference between the facts of the present case and the reported case.
In the instant case, the Complainant successfully proved that the OP withheld the money advanced for a very long time without sufficient reason and refunded it without assigning any reason after a long time. Therefore, the act of the OP should be considered as unfair trade practice.
In the backdrop of the discussion made herein above, vis-à-vis the observation arrived at therein reasonable inference is drawn that the OP has acted unfair trade practice which caused deficiency in service to the Complainant coupled with mental pain and agony and harassment. The Complainant should therefore be compensated in terms of money.
Accordingly, both the Points No. 2 & 3 are answered in favour of the Complainant and decided in his favour.
Consequently, the Complaint Case succeeds on contest with cost.
Hence, it is
Ordered
That the Complaint Case No. CC/49/2018 be and the same is allowed on contest with cost Rs.10,000/-. The Complainant do get an award of Rs.25,000/- from the OP as compensation towards deficiency in service, unfair trade practice and mental agony and harassment. The OP is directed to pay a sum of Rs.35,000/- to the Complainant within 30 (thirty) days from the date of passing the Final Order failing which the OP shall pay an interest @ 6% p.a. from the date of passing the Final Order till the date of realization thereof.
Let a plain copy of this order be supplied to the parties concerned by hand/by post forthwith, free of cost for information and necessary action, if any.
The copy of the Final Order is also available in the official Website www.confonet.nic.in.
Dictated and corrected by me.
