Date   : 18.09.2012. 

Per Mr.K.B.Gawali , Hon`ble Member.

1.       The appellant who is the original opponent No.2 has preferred this appeal challenging the judgment and order dated 15.6.2007 passed by District Forum, Ahmednagar in C.C.No.45/2005 by which complaint was allowed and appellant was directed to pay compensation. The respondent No.1 is the original complainant and respondent No.2 is the original opponent No.1.

2.       The background of this appeal is briefed as under.

          That, the present respondent No.1/original complainant (herein after termed as “complainant”) with the intention to start business of manufacturing of plastic bags approached to the appellant and obtained quotations regarding supply of machinery and raw-material.  Accordingly, the present appellant supplied quotation in the name of respondent No.2 on accepting booking amount of Rs.20,000/-.  That, on the basis of said quotation complainant obtained loan from Bank of Maharashtra and paid Rs.1,08,300/- to the appellant through D.D. dated 24.12.2003 drawn in favour of respondent No.2 towards cost of machinery and was paid to the present appellant.  Subsequently, another D.D. of Rs.41,700/- towards raw material through Bank of Maharashtra payable to respondent No.2 was also paid to present appellant.  It was however alleged that appellant as well as respondent No.2 neither supplied machinery nor the raw material.  Therefore  he had issued legal notice dated 27.1.2005  but the appellant as well as respondent No.2 did not take cognizance of the said notice and not supplied the machinery and raw material.  He therefore filed complaint before the District Forum seeking direction to the appellant as well as respondent No.2 to pay him Rs.1,70,000/- with interest @ 18% p.a. alongwith compensation towards mental agony and cost of complaint.

3.       District Forum issued notices to appellant as well as respondent No.2.  However it was found that respondent No.2 was not available on his given address and therefore a public notice in the newspaper came to be published. But the  respondent No.2 i.e. original opponent No.1 did not appear before the Forum and hence complaint was proceeded exparte against the present respondent No.2.

4.       Appellant appeared before the Forum and filed written version on 19.4.2005 and resisted the claim. He denied in toto any business relation with the complainant.  He denied to have given any quotation regarding purchase or supply of machinery and raw material to the complainant but stated that he had only given guidance to the complainant about running of business of making plastic bags and also given names of the machinery supplier including the present respondent No.2. He has also denied to have accepted the booking amount of Rs.20,000/- on 4.12.2003 towards supply of machinery and that he had not given any receipt in that respect. He also flatly denied to have received amount of Rs.1,08,000/- towards machinery and Rs.41,700/- for supply of raw material.  He also submitted that the complaint filed by complainant suffered from mis-joinder of the parties as he had no concern with the complaint and also non-joinder of necessary parties as the complainant has not made “Bank of Maharashtra” as a party to the complaint.  Appellant i.e. original opponent No.2 further contended that he was running a business of selling readymade plastic bags at Belapur.  That, the complainant had approached him and had disclosed his intention to start industry of manufacturing plastic bags and requested to give some information regarding supplier of machinery and also raw material. After having given the information the complainant purchased the machinery from respondent No.2 and also started the said industry at Belapur. He further contended that present respondent No.2 was to pay him Rs.1,72,000/- as a part of earlier transaction and therefore D.D. of Rs.1,08,000/- and Rs.41,700/- were given to him by the respondent No.2.  Hence, both these D.D.s were deposited in his account against the said outstanding amount is of Rs.1,72,000/-.  He further averred that the respondent No.2 also paid Rs.9000/- in cash and for remaining amount of Rs.13,000/- he had already initiated separate proceedings against him.  Thus the appellant has totally denied the claim of complainant and also submitted that it involves complicated question of facts and law.  Therefore District Forum has no jurisdiction to entertain the same.  On all these grounds he contended that complaint being false and baseless be dismissed with compensatory cost of Rs.10,000/-. 

5.       District Forum after going through papers and hearing the parties has allowed the complaint against appellant and directed him to pay compensation of Rs.1,70,000/- along with interest of @ 12% and also Rs.50,000/- towards mental agony and Rs.10,000/- as cost of the complaint.

6.       Aggrieved by the said judgment and order this appeal is filed in this Commission.

7.       We have finally heard this appeal on 23.8.2012.  Adv.Shri.S.V.Kulkarni was present for the appellant.  None was present for respondent.  Adv.Shri.Kulkarni submitted that the appellant had no concern with the complainant and it is only because there was similarity in the name of firm of the appellant as well as of respondent No.2, complainant has made party to the appellant in his complaint.  He submitted that appellant is not doing the business of supply of machinery or raw material and therefore he is not at all liable for non-supply of machinery or raw material to the complainant.  He further contended that complaint filed by complainant cannot be entertained by the District Forum as it involves complicated questions of fact and law and hence it ought to have dismissed the complaint on the said ground. Learned counsel Shri.Kulkarni therefore submitted that District Forum has wrongly interpreted the facts of the case. It did not consider the defence as put forth through written version and has erroneously passed the impugned judgment and order which requires to be quashed and set aside.

8.       We have perused the papers and considered the oral submissions made by learned counsel for the appellant.  While passing impugned judgment and order the District Forum has observed that the respondent No.2 i.e. opponent No.1 is not in existence.  But the appellant himself had played a role of respondent No.2.  It is revealed that the quotation regarding machinery and raw material have been supplied by the appellant only in the name of respondent No.2. The booking amount of Rs.20,000/- towards supply of machinery has also been accepted by the appellant only, but the receipt is given in the name of respondent No.2. It is also an admitted fact that both the D.D.s amounting to Rs.1,08,300/- and Rs.41,700/- which were in the name of respondent No.2 have been accepted by the present appellant and deposited in his account. The receipts towards these D.D.s are also given by appellant for respondent No.2. It is also to be noted that legal notice dated 27.1.2005 which was sent by complainant to the respondent No.2 is returned with endorsement “ not found address”.  The details of amount of Rs.1,72,000/- have also not been furnished by appellant. District Forum has also observed that signatures made on the quotation of the machinery and receipts given to the complainant for the amount received and on the written say filed by appellant before the Forum are one and the same.  It has also come on record that notice of hearing which was sent to respondent No.2 for hearing was also returned with the endorsement “as not found on the given address”.  From all these above said facts the observations of the District Forum that both the appellant and the respondent No.2 are one and the same appear to be quite correct and acceptable.

9.       We have also observed that the appellant has failed to give any cogent evidence to show that complainant has already started his unit and that the machinery which was found as per police statement at “Ratnahar Industries, Belapur”. It has also not been proved that there is any relation between the said Ratnahar Industries and the complainant.  Therefore appellant`s contention that the complainant has already received machinery and raw material cannot be accepted.

10.     Considering the aforesaid facts and observations it can be very well be construed that the appellant has not only committed deficiency in service but also indulged in unfair trade practice. District Forum has rightly arrived at conclusion that the appellant is liable to pay the compensation and also to refund the money which has been paid by the complainant towards purchase of machinery and raw material.

11.     We however find that the rate of interest as well as amount of compensation towards mental agony and cost of complaint as awarded by District Forum appear to be excessive and unreasonable. Secondly, the effective dates of interest for Rs.20,000/- and Rs.1,08,000/- instead of 4.12.2003 & 24.12.2003 for simplicity should be one i.e. 24.12.2003. We therefore intend to modify the order to that extent. Accordingly, we pass the following order.

                                                O   R    D    E    R

1.     Appeal is partly allowed.

2.     Appellant is directed to return to the complainant Rs.1,70,000/- with interest of 9% instead of 12% p.a. from 24.12.2003.

3.     Appellant is also directed to pay to the complainant compensation of Rs.10,000/- instead of Rs.50,000/- towards mental harassment and Rs.5,000/- instead of Rs.10,000/- towards  the cost of the complaint.

4.     All these amounts are to be paid within a period of 30 days. In case of failure, they shall carry an interest of 10% till the realisation of the entire amount.

5.     Copies of the judgment be issued to both the parties.

Pronounced on 18.09.2012.