BY - SRI ASISH DEB, PRESIDENT
Brief facts of the case is that the Complainant is a citizen of India by birth and a permanent resident of the above noted address within the jurisdiction of this Commission. The Opposite Parties are the Partners and Share Holders of one brick field under name and style “Mata Brick Field” situated at Vill- & P.O.- Mayachar, P.S.-Mahishadal, Dist.- Purba Meidnipur-721648. The complainant desired to buy bricks from the Opposite Parties in the season of 2014-2015, and thus an agreement was executed and signed between them on 15.08.2014 wherein the Opposite Parties received a sum of Rs. 5,50,000/- from the complainant as advanced and to deliver ‘Number one’ quality of bricks at a rate of Rs. 5,500/- per thousand brick, and ‘Number three’ quality of bricks at a rate of Rs. 5,000/- per thousand bricks. The Complainant paid the amount of RS. 5,50,000/- to the Opposite Parties as per agreement on that day i.e. 15.08.2014 and the Opposite Parties realized the same by making written acknowledgment in the said agreement. However, the Opposite Parties thereafter started delaying and refusing the complainant and did not deliver any bricks of either quality to him till date, nor have they refunded any money taken by them till date. The complainant severally asked and requested to either deliver the bricks as agreed or to refund the whole money with interest but the Opposite Parties did not bother to respond in any way and kept themselves out of the reach of the complainant. Being fed up by the whimsical and willful activity of the Opposite parties, the complainant lodged a Written Complaint before the Mahishadal Police Station through the Pradhan, Amritberia G.P. under P.S.- Mahishadal, on 16.01.2017, and the Pradhan forwarded the same to the P.S. on 17.01.2017, however, the same yielded no fruitful results. The complainant even sent one Legal Notice through his Ld. Advocate Mr. Kausik Bhattacharya on 21.03.2017, registered on 22.03.2017, but the Opposite parties, despite receiving the same did not bother to respond or reply. The above activity of the Opposite Parties is not only illegal and against the utmost good faith and trust of the complainant, but also resulted in gross negligence and deficiency in service. Be it noted the complainant desired to buy bricks for constructing his dwelling house and as such, the non-delivery of bricks till date not only caused a serious economical loss as all his building materials like rod, cement, chips, sands etc. got deteriorated and damaged, but also till date the complainant has became bound to live at rented house at huge costs, and hence he deserves to be compensated by the Opposite Parties for their deficiency in service and gross negligence. The complainant is therefore preferring this instant case before the Forum against the negligence, deficiency in service and illegal activities of the Opposite Parties . The cause of action has started on and from 15.08.2014, and being a “Continuous cause of action” it continued through 16.01.2017/17.01.2017 (date of lodging G.D.E.) and 22.03.2017 (date of issuing Legal Notice) till today. All the relevant papers and documents have been filed in Xerox copies. Therefore, he prays for directing the Opposite parties : I) To refund the complainant a sum of Rs. 5,50,000/- with interest @ 16% per annum with effect from 15.08.2014 II) To pay a compensation of Rs. 2,50,000/- to the complainant by OP for negligence and deficiency in service and intentionally causing harassment and economical loss to the complainant III) To pay litigation cost of Rs. 10,000/- to the complainant for conducting this case. And to pass such other orders for relief as the Commission may deem fit and proper.
Upon notice the op no-2 has contested the case by filing written version against the complaint. Op-1 has not contested the case consequently the case has run ex-parte against him. In his written version op-2 has stated inter alia that the allegation of the complainant, which are contrary to or inconsistent with what is averred herein are denied in totality and that nothing in the complaint is or should be deemed to be admitted by or on behalf of the answering opposite party for want of specific traverse or otherwise. The complainant has neither any cause of action nor any right to sue against the OP No.2. As a matter of fact that the case is neither maintainable in facts nor in law and the same is absolutely false, frivolous, harassing, malafide motivated and concocted and as such the case is liable to be dismissed on contest. The opposite party no.2 submits that in fact he is not at all a partner in respect of the business namely “Mata Brick Field” and the said business is absolutely a proprietorship business and the OP np-1 is the sole proprietor of the same and furthermore and opposite party no-2 has no nexus with such business by any manner whatsoever and thus the opposite party no.2 is not at all a necessary party in the instant case and further more question of deficiency in service alleged by the complainant never arose against the opposite party no.2 . The opposite party no.2 further submits that he himself is customer of the op no.1 and the Op no.2 also paid advance money for purchasing of bricks from the op No.1 and the Op no.1 on receiving of the advance money issued money receipt on that effect. On receiving of the demand notice dated 05.05.2017 sent by the complainant through his authorised agent and advocate Mr. Kaushik Bhattacharya, duly replied through his authorised agent and Advocate Manish Kumar Chaule where in the Op no.2 clearly stated about the actual state of affairs. The opposite party no.2 further submits that he is a practicing Advocate of Uluberia Court, Howrah and the profession of the opposite party no.2 is well known to the complainant and the complainant is not at all a consumer under the present opposite party no.2 and a such the instant case is absolutely hit by section 12 of the Consumer Protection Act against the opposite party no.2. The opposite party no.2 further submits that it is fact that on the day of receiving the advance money received by the op no.1 from the complainant i.e. on 15.08.2014 the opposite party no.2 was present as the opposite party no.2 also went to the office of opposite party no.1 for purchasing of bricks as the opposite party no.2 paid earnest money for purchasing of bricks to the opposite party no.1 and at that material point of time when the complainant paid advance money to the opposite party no.1, he himself knowing about the profession of opposite party no.2 earnestly requested to sign over the money receipt as a witness and on good faith the opposite party no.2 signed over the document which was executed by the op no.1 in favour of the complainant on that very date i.e. on 15.08.2014 only as a witnessed as such the case is absolutely barred by law against the opposite party no.2 and liable to be dismissed on contest. Under such circumstances the opposite party no.2 most humbly pray Honour may graciously be pleased to dismiss the instant case against the opposite party no.2 and/or to pass such other order/orders as your Honour may deem fit proper and necessary.
Points for determination are:
- Is the case maintainable in its present form and in law?
- Is the complainant entitled to the relief(s) as soughtfor?
Decision with reasons
In Re:- Points 1 & 2.
Both the points, being inter related to each other, are taken up together for discussion for sake of brevity and convenience.
Heard arguments of the Learned Counsel for both parties. We have given our thoughtful consideration to the arguments from both sides. We have carefully perused and assessed the affidavit of the complainant evidence of the complainant i.e., examination in chief on affidavit by complainant ,questionnaire and reply thereto. The written version filed by op-2 , evidence of the op-2 ie, examination in chief on affidavit by op-2 ,questionnaire and reply thereto and other annexures.
Having regards had to the bundle of facts and circumstances of the case and other materials on record, it appears that the complainant is a consumer; the complainant has cause of action. As such the instant case is maintainable in its present form and in law.
On evaluation of the materials on record, it is evident that the complainant has set the case in motion having grievances against the ops mainly banking upon his oral testimony supported by a money receipt (annexure-1). The op-1 has not challenged the testimony of complainant and money receipt ( annexure-1).On the other hand op-2 has challenged the version of complainant stating that he signed on the document as witness only. He admits that the genuineness of the document, however his contention is that he was present as purchaser of bricks, on good faith he put his signature as witness. Now, coming to the evidentiary weight of the money receipt ( annexure-1), we have to read the first paragraph of it which reads like “ .Ami Sri Arjun Manna, pita Madhai Manna vill + P.O.- Mayachar Mahisadal, Purba Medinipur Mata Bhatar Malik Haitechhi….” Men may lie but the document can not. This document clearly shows that Arjun Manna ,op-1 is the proprietor of the business namely “Mata Brick Field”, In legal prudence , the burden proof lies with the person who asserts. The complainant has not filed any cogent evidence to show that op-2 is a co-proprietor of “Mata Brick Field”, In absence of such cogent evidence this commission is constrained to hold that op-2 merely put his signature as witness. The cumulative value of the facts and circumstances of the case and evidence thereof suggest that the Opposite Party-1 received a sum of Rs. 5,50,000/- from the complainant as advance and to deliver ‘Number one’ quality of bricks at a rate of Rs. 5,500/- per thousand brick, and ‘Number three’ quality of bricks at a rate of Rs. 5,000/- per thousand bricks. The Complainant paid the amount of RS. 5,50,000/- to the Opposite Party-1 as per agreement on 15.08.2014 and the Opposite Party-1 realized the same by making written acknowledgment in the said agreement. The complainant severally asked and requested to either deliver the bricks as agreed or to refund the whole money with interest but the Opposite Party-1 did not bother to respond in any way. The complainant lodged a Written Complaint before the Mahishadal Police Station through the Pradhan, Amritberia G.P. under P.S.- Mahishadal, on 16.01.2017, and the Pradhan forwarded the same to the P.S. on 17.01.2017, however, the same yielded no fruitful results. The complainant even sent one Legal Notice through his Ld. Advocate Mr. Kausik Bhattacharya on 21.03.2017, registered on 22.03.2017. Acts of op-1 resulted in gross negligence, harassment and deficiency in service. Therefore, complainant is entitled to get refund from op-1 a sum of Rs. 5,50,000/- with interest @ 10% per annum from the date of filing of this case till the date of actual payment ; further he will get compensation of Rs. 20,000/- from the OP-1 for negligence and deficiency in service and intentionally causing harassment and economical loss to the complainant alongwith litigation cost of Rs. 5,000/-.
Both the points are decided accordingly in favour of the complainant.
Resultantly, the complaint case succeeds.
Hence, it is
O R D E R E D
That the CC/178 of 2018 be and the same is allowed ex-parte against OP-1 and dismissed on contest against OP No-2 .
The Opposite party- 1 is hereby directed to pay to the complainant a sum of Rs. 5,50,000/- with interest @ 10% per annum from the date of filing of this case till the date of actual payment ; further to pay compensation of Rs. 20,000/- for negligence , deficiency in service , harassment and economical loss to the complainant , alongwith litigation cost of Rs. 5,000/- within 45 days from the date of this order ; in default the complainant will be at liberty to put the order into execution.
Let a copy of this judgment be provided to the Complainant and ops-1 &2 free of cost.
The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
