26.04.2016

MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER

            The instant Appeal u/s 15 of the Consumer Protection Act, 1986 is directed by the OP against the judgment and order dt. 21.2.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II in Complaint Case No. 43 of 2013, directing the OP to ‘return/refund’,  within one month from the date of the order,  to the Complainant the gold of 5.800 gm or the value of the said gold at ‘present’ market rate of the same and to pay to the Complainant Rs. 5,000/- as compensation and further Rs. 5,000/- as litigation cost, failing which the OP shall have to ‘pay’ to the District Forum concerned Rs. 25,000/- as punitive damages within 7 days from the date of non-compliance of the said direction.

          Facts of the case, as arising from the materials on records, are, in short, that the Respondent/Complainant on 28.12.2010 ‘deposited’ old gold of 22 kt. of 5.800 gm valued at Rs. 11,785/- with the Appellant/OP together with payment by cash Rs. 10,000/- as advance for purchase of one ‘Noa-Bala’ of 10.500 gm, which was to be delivered on 15.1.2011 as averred in the Petition of Complaint.  Thereafter, on 1.1.2011 the Respondent/Complainant cancelled the Order of Purchase of ‘Noa-Bala’ and got refund of Rs. 10,000/- which was paid by cash, but the Appellant/OP did not refund the value of the deposited old gold at market rate on the said date.  Then the Respondent/Complainant wrote a letter to the Appellant/OP, which was received by the Appellant/OP on 24.5.2012, requesting them to return the value of the old gold deposited at the current market value, but without any success.  Then the Complainant, after getting no redressal in the conciliation process of the Consumer Affairs Department, moved the Ld. District Forum filing the Complaint concerned, which passed the order in the aforesaid manner.  Aggrieved by the said order of the Ld. District Forum the OP has moved this Commission.

          The Ld. Advocate for the Appellant/OP submits that the Ld. District Forum erred in passing the judgment and order without properly appreciating the fact that the old gold in question was not deposited in exchange of new Noa-Bala, rather, the old gold was sold to the Appellant/OP at the market rate prevalent on the said date as evident from the description of the Voucher No. 11P03561 dt. 28.12.2010 as ‘PURCHASE MEMO’.

          The Ld. Advocate further submits that the purchase of old gold is in no way connected with the purchase of new Noa-Bala for which separate Order Receipt No. 39817 dt. 28.12.2010 was issued showing delivery date as 15.1.2011.

          The Ld. Advocate also submits that on 1.1.2011 when the Respondent/ Complainant cancelled the order of Noa-Bala, Rs. 10,000/-, as was received in cash, was refunded, but the Respondent/Complainant did not take refund of Rs. 11,785/- being the value of the old gold despite readiness of the Appellant/OP to refund the same.

          The Ld. Advocate adds that after a long interval of time the Respondent/ Complainant demanded refund of the value of the old gold in question at present market rate, which is against the business policy of the Appellant/OP.

          The Ld. Advocate continues that after cancellation of the order the Respondent/Complainant remains no longer a Consumer under the Consumer Protection Act, 1986.  The Ld. Advocate adds that earlier a Complaint Case bearing No. CC/380/2012 related to the same cause of action was rejected and hence, the instant Complaint cannot be entertained.

          The Ld. Advocate finally submits that in view of the aforesaid submission the instant Appeal should be allowed and the impugned judgment and order be modified to the extent of Rs. 11,785/- being the price of the old gold, setting aside the other directions of the impugned judgment and order.

          On the other hand, the Ld. Advocate for the Respondent/Complainant submits that the Respondent/Complainant, who intended to purchase a new Noa-Bala from the Appellant/OP, still continues to be a Consumer as the Respondent/ Complainant did not get the refund of the value of the old gold which was deposited with the Appellant/OP for purchase of a new Noa-Bala.

          The Ld. Advocate further submits that the old gold was deposited for purchase of a new Noa-Bala in question after adjusting the value of the old gold with that of the new Noa-Bala and hence, the Appellant/OP is under obligation to return the value of the old gold at present market rate in view of the Purchase Order of the new Noa-Bala having been cancelled.

          The Ld. Advocate also submits that the Appellant/OP has failed to substantiate with any copy of order that an earlier Complaint having the same cause of action was rejected and hence, such submission does not stand to reason.

          The Ld. Advocate continues that the fact of purchase of the new Noa-Bala in exchange of the old gold in question is indicated in the noting on the Purchase Order-cum-Receipt No. 39817 dt. 28.12.2010 to the effect of adjustment of the value of the old gold being Rs. 11,785/- with the value of the new Noa-Bala being Rs. 21,785/-. 

          The Ld. Advocate also adds that it is also evident at the bottom of the Purchase Memo, as described in the said Voucher No. 11P03561 dt. 28.12.2010, that the word ‘deposited’ was not struck out, thereby indicating that the old gold was ‘deposited’, but not ‘sold’, for the exchange of the new Noa-Bala.

          The Ld. Advocate finally submits that in view of the aforesaid submission and evidence on record the instant appeal should be dismissed and the order impugned be affirmed, the same being proper and just.

          We have heard both the sides, considered their submission and perused the materials on records.

          Non-striking out of the word ‘deposited’ in the Purchase Memo, as is described in the said Memo No. 11P03561 dt. 28.12.2010 (Running Page-5 of Memo of Appeal) points to the fact of deposit of old gold in question for the exchange of new Noa-Bala.

          Further, the noting, in the Order Receipt No. 39817 dt. 28.12.2010 (Running Page-4 of Memo of Appeal) against the value of new Noa-Bala, to the effect of  “old-5.800=11785/-” also points to the exchange-nature of transaction of the old gold with the new Noa-Bala.  But as the order of new Noa-Bala was cancelled by the Complainant suo motu on a subsequent date and the process of new Noa-Bala had already started, we are unable to agree with the view of the Ld. District Forum about return of the gold weighing 5.800 gm or refund of the value thereof at present market rate.  The date of transaction is very material in determining the value of gold, the ups and downs of which occur on daily basis, in such a case of transaction of gold.  The Complainant is entitled to get refund of Rs. 11,785/-, being the value of gold as stood on the date of placing order for Noa-Bala, with compensation and cost.

          The aforesaid evidences on records as well as the submission of the Ld. Advocate for the Respondent/Complainant lead us to modify the impugned judgment and order to the following extent:

The Appeal is allowed in part.  The Appellant/OP is directed to refund Rs. 11,785/-, being the value of deposited gold on the date of deposit, compensation of Rs. 5,000/- and litigation cost of Rs. 2,000/- to the Respondent/Complainant within 45 days from this date, failing which simple interest @ 9% per annum will accrue on the said amount from the date of default till realization in full.  Other directions passed by the Ld. District Forum are set aside.  The impugned judgment stands modified accordingly.