Date of Filling: 21.08.2018
Date of Disposal: 02.08.2022
Appearance:
For the Complainant:Sri Kailash Chandra Mishra, Adv.
Sri Krushna Chandra Sahu, Adv.
For the Opposite Parties:Exparte
Shri P. Surya Rao, President
The fact of the case in brief is that the Complainant has filed this Consumer Complaint under Sec. 12(1)(d) of the Consumer Protection Act, 1986 alleging deficiency in services and unfair trade practice by the Opposite Party and for Redressal of their grievance before this Commission.
The fact of the case as averred by the complainant is that, the complainant is a co-operative sugar industry limited wherein the State Government of Odisha is a major share holder and functioning under the instruction of the State Government. The present complainant is producing sugar in the interest of the general public at large. And the state government of Odisha has deputed a Managing Director as his representative in the said industry. To produce more sugar from the sugar cane by using the modern technology, the complainant called a tender on 16.01.2017 for machines like Un-grooved Mill Top Roller, roller Shaft Materials and Roller Shell Materials. The present opposite party was selected under the tender process. Accordingly, the complainant has placed the purchase order with certain terms and conditions vide No:Pur/2826/Dtd:23.02.2017 for supply of Un-grooved Mill Topper Roller at the rate of Rs.13,59,600/- through email and accordingly the opposite party duly acknowledging the said email sent a email to the complainant for advance payment through RTGS on 23.02.2017. Accepting the email, the complainant deposited a sum of Rs.10,87,737.50p through RTGS vide UTR No.:SBINR52017033100066963875359/Dtd:31.03.2017 in favour of the Ajay Industries to supply of the said machine. Further, the complainant deposited another amount of Rs.3,00,028.75p/- (Rupees Three Lakhs Twenty Eight Thousand and Seventy Five paise) in the account of the opposite party for purchase of material for orders through RTGS UTR No.:SBINR52017053100036653896663 on 31.05.2017. In toto the opposite party has received the consideration amount of one machine from the complainant. While matter stood thus, the opposite party again claimed the total amount on 27.06.2017 and issued two bills Dtd:05.06.2017 and Sale Invoice Dtd:27.06.2017. On receipt of the said email, the complainant issued way bill infavour of the opposite party to despatch of goods as Challan No.:21/Dtd:27.06.2021 but the opposite party did not choose to supply the required machine to the complainant. And when no tangible steps taken by the opposite party to deliver the machine, the complainant issued several notices through email and postal. Instead of supply of the machine, the opposite party has taken different plea to collect the money and avoided the supply of the machine. And the complainant could not able to produce such amount of sugar from the sugar cane by using the said machine since the session 2017-18 and for which the complainant lost its goodwill in the market and before the customers as well and now which cannot be countable. To redress the above grievance, the complainant getting no other way filed this consumer complaint for deficiency in services and unfair trade practice of the opposite party.
Admitting the Consumer Complaint, this Commission has issued notice to the opposite party but same was returned unserved and subsequently the commission issued another notice through email the opposite party has acknowledged the same but did not appear before this Commission on the scheduled date. Hence the opposite party was set exparte. And the OP did not file the written version in consonance with the Act, 1986 and found absent on all dates. And the averment of the Complainant is remains unchallenged by the OP.
Points to be determined:- Sec. 57 of Sale of Goods Act.-
Whether the seller wrongfully neglects or refuses to delivery the goods to the buyer?
The opposite party being seller of the specific goods did not executed his duty to deliver the goods in accordance with the terms of the contract of tender. Whereas the buyer present complainant has issued way bill in favour of the opposite party for delivery of specific goods. In the instant case, the opposite party violates the rules as to delivery in consonance with the Sale of Goods Act. Hence the complainant is a consumer and the opposite party is liable to pay the compensation for non-delivery of the goods to the complainant.
We have heard the learned Counsels for the Complainant and have gone through the documents on record.
In the instant case it reveals that the complainant filed all the relevant documents in support of their claim. By taking the sole testimony of the complainant in shape of affidavit into the consideration, we accepted the contentions of the complainant as true and correct as it remained unchallenged.
Keeping in view of the above circumstances and the provisions of law of the land, the Commission allowed partly the case of the above named Complainant against the Opposite Party.
Hence, the Opposite Party is directed:-
- To refund the total value of the machine Rs.13,87,766.25p (Rupees Thirteen Lakh Eighty Seven Thousand Seven Hundred Sixty Six and Twenty Five paise) along with the 6% pa from the date of receipt of the amount to the complainant;
- To pay Rs.10,000/- (Rupees Ten Thousand) as litigation expenses to the complainant.
This operative part of the order shall be complied with by the Opposite Party within forty five days from the date of receipt of this order, failing which, it shall be liable to pay the entire amount from (i) & (ii) along with interest @ 12% p.a. from the date of the order of this case till its actual date of realization and the complainant is at liberty to take appropriate steps in accordance to the Consumer Protection Act, 1986 for realisation of all dues.
Certified copy of this order be communicated to the parties free of cost.
A copy of this order be also sent to the Secretary, State Consumer Disputes Redressal Commission, Odisha, Cuttack for information and a copy of same be sent to the server of www.confonet.nic.in for posting in internet. After compliance the case record be consigned to record room.
This order is pronounced on 2nd August 2022 in open Commission.
I agree
Sd/- Sd/-
MEMBER PRESIDENT
Evidence affidavit of the Complainant is filed as PW-1.
A written argument of the complainant is filed.
Evidence affidavit of the opposite party: NIL.
No Written Version and Written Argument filed by the Opposite Party.
List of Exhibits:-
On behalf of the Complainant:
Ext. 1 – Tender Call Notice Dtd;16.01.2017.
Ext. 2 – Purchase Order Dtd:2302.2017.
Ext. 3 – Email Dtd:23.02.2017.
Ext. 4 – Account Statement of the Complainant Dtd:31.03.2017.
Ext. 5 – email of OP dtd:29.05.2017.
Ext. 6 - Account Statement of the Complainant Dtd:31.05.2017.
Ext. 7 – email dtd:26.06.2017.
Ext. 8 – Bills dtd:05.06.2017 & 27.06.2017.
Ext. 9 – Way bill no.:21/Dtd:27.06.2017.
Ext. 10 – Claim Notice Dtd:01.09.2017.
Ext. 11 – Email Dtd:01.09.2017.
Ext. 12 – Letter No.:1671/Dtd:23.10.2017, Email dtd:24.10.2017 &
27.10.2017
Ext. 13 – Email dtd: 31.07.2018, 05.07.2018, 24.04.2018, 23.03.2018,
Letter Dtd:17.03.2018 of OP, 10.03.2018, 07.03.2018
On behalf of the Opposite Parties:
NIL.
