SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)
The Complainant has filed this complaint petition, U/s-35 of C.P.A.-2019, (here-in- after called as the “Act”), on dated 30.12.2020, alleging a “deficiency-in-service” by the OP, who is a supplier of house construction materials.
2. The case of the complainant, in brief, is that there was cordial relationship between the complainant and the OP. The OP is a supplier of house construction materials. So, the complainant ventilated his intention for construction of a house of his own. The OP advised him to give some money in advance to him so that the OP will supply the construction materials. Thus, reposing good faith, the complainant had given Rs.1,70,00.00 to the OP in advance for supply of bricks, sand, cement, iron rod. The OP has also received the said amount and to that effect he issued money receipt and also one agreement was executed between them for the purpose. But the OP failed to supply the construction material to the complainant. The complainant visited the house of the OP in several times and requested him to supply the materials, as stated above. The OP has also given assurance to supply the materials to him, but did not comply. Lastly, on 8.10.2020, the complainant had been to the house of the OP and requested him to refund the advance money and the OP was agreed to refund the said amount by 31.10.2020, but till date he has not refund the advance amount to him. Thereafter, the complainant served legal notice on the OP on 11.11.2020, but the OP refused to receive the said letter with an ulterior motive. Finding no other way out, the complainant was constrained to file the present case with the reliefs, as sought for in the complaint petition. Hence, this case.
To substantiate the case, the complainant relied upon the following documents, which are placed in the record-
- Photo copy of money receipt.
- Photo copy of unregistered agreement.
- Photo copy of legal notice dated 11.11.2020.
- Photo copy of postal receipts.
- Photo copy of the address mentioned in front of legal notice.
3. Upon admission of the present case, the OP was appropriately noticed along with copy of the complaint petition, but the OP refused to receive the same, as reveals from the order sheet dated 12.2.2021 for which he was set ex parte.
4. In view of the above averments of the parties, the points for determination in this case are as follows:-
(i) Whether the Complainant is a Consumer as per C.P Act, 2019?
(ii) Whether there is any cause of action to file this case?
(iii) Whether this Consumer case is maintainable as per Law?
(iv) Whether there is any deficiency of service on the part of the O.P?
(v) To what other relief(s), the Complainant is entitled to?
F I N D I N G S
5. In the present case, it is to be seen how far the complainant is proved himself to be a consumer as required U/s 2(7) (i) & (ii) of the C.P. Act. No doubt, OP is an order supplier relating to the house construction materials. There exists good relationship between both the parties. With an intention to construct a house of his own, the complainant had given Rs.1,70,000.00 to the OP as advance for supply of bricks, sand, cement, rod, etc. It reveals from Annexure-1 that the OP had received the aforesaid amount from the complainant for the purpose in presence of gentries. From the Annexure-2, an unregistered agreement executed between both the parties, it clearly reveals that OP was agreed to supply the building construction materials to the complainant and for the purpose, OP had received Rs.1,70,000.00. Therefore, it is held that the complainant is a consumer under the OP.
6. For the sake of convenience and for better appreciation of the case, the Issues No. ii, iii & iv are taken up together. It is the case of the complainant that the OP is an order supplier of house construction materials. There exists cordial relationship between both the parties. So, the complainant ventilated his intention for construction of a house of his own. Accordingly, the OP advised him to give some money in advance so that the he will supply the construction materials. Upon good faith, the complainant had given Rs.1,70,00.00 to the OP in advance for supply of bricks, sand, cement, iron rod, etc. The OP has also received the said amount and to that effect he issued money receipt (vide Annexure-1) so also one agreement was executed between them for the purpose (vide Annexure-2). But the OP failed to supply the construction material to the complainant. Thus, the complainant visited the house of the OP in several times and requested him to supply the materials and the OP has also given assurance to supply the materials to him, but did not comply. Lastly, on 8.10.2020, the complainant had been to his house and requested him to refund the advance money. The OP was also agreed to refund the said amount by 31.10.2020, but till date he has not refund the advance amount to him. Thereafter, the complainant served legal notice (vide Annexure-3 & 4) on the OP on 11.11.2020, but the OP refused to receive the said letter (vide Annexure-5) with an ulterior motive.
7. From the above discussion, it is clearly made out that the OP did not pay back the agreed amount which he had committed to refund and thereby cheated the complainant. Besides the above, it is seen that on 4.1.2021, notice was issued against the OP by this Commission for his appearance, but he did not receive the notice, rather, he refused to receive the notice. Therefore, the OP has lost his all hope to defend his case. That apart, it is also made out from the documents produced by the complainant that the OP has refused to receive the advocate’s notice dated 11.11.2020 issued by the complainant. From the above discussions, it is, therefore, clearly made out that the OP has failed to comply the performance on his part which he had undertaken to be performed and for such negligence the consumer like complainant sustained loss and mental agony. Besides the above, the entire testimony of the complainant remains unchallenged which can be utilized against the OP. For the reasons mentioned above, it is concluded that unfair trade practice was adopted by the OP and thereby attributed deficiency in service on the part of the OP towards the complainant. Hence, the complainant has cause of action to file the present case and the case is maintainable. Therefore, the OP is liable for the compensation as claimed for by the complainant.
Hence, it is ordered –
O R D E R
The case of the complainant is allowed ex parte against the OP. The OP is hereby directed to pay the agreed amount of Rs.1,70,000.00 to the complainant along with compensation of Rs.50,000.00 and litigation expenses of Rs.10,000.00. Further, the OP is directed to pay the aforesaid awards to the complainant within two months hence, failing which the complainant is entitled to get interest @ 9% PA payable by the OP from the date of actual cause of action till its realization. In case of deviation, the complainant is at liberty to realize the same through the process of law. In the peculiar facts & circumstances of the case, no order as to cost.
Given under my hand and the seal of this Commission, this the 19th day of June, 2023.
