Ld Advocates for both parties are present. Judgement is ready and pronounced in open Commission in 4 pages 2 separate sheet of paper.

BY -    SRI ASISH DEB, PRESIDENT

Brief facts of the complainant’s case is that the Complainant is a permanent inhabitant  of above mentioned address and the Opposite Party is inhabitant and has established his shop/business place within this jurisdiction. The O.P. is the sole proprietor and owner of his business namely “Santra Imarati”. The Complainant is a innocent person and family man, for his construction purpose and his requirement of building materials, he met with O.P. member at his shop/establishment namely “Santra Imarati”. After elaborate discussion with the O.P. member, the Complainant agreed to advance for purchase of building materials/goods from the shop of O.P. member. For the purchase of building materials as 16 MM (SRMB) Tmt Bar-95 Pieces, 12 MM(SRMB) Tmt Bar 81 Pieces, 8 MM (SRMB) Tmt Bar-100 Pieces and 400 packet of Ultratech Premium Cement from the O.P, and after discussion about said matter the op approached the Complainant to purchase goods for his purpose from the shop of O.P. namely “Santra Imarati” and he advised to pay Rs. 3,13,600/-.  After getting satisfaction by O.P’s word regarding goods/materials, the Complainant agreed to purchase and as per instruction of the O.P on 16.03.2020 he paid Rs.13,600/- by cash and Rs. 3,00,000/- to O.P’s bank account in Bangiya Gramin Vikash Bank in cash deposit by the Complainant. The Complainant paid total amount of Rs. 3,13,600/-* to the O.P for purchase of building materials/goods from O.P. member and O.P received the amount and issued invoice in favour of the Complainant. After the full payment for the building materials/goods though bank and by cash from the Complainant, O.P  disclosed that he must deliverall goods to the O.P. within 10 days but he did not supply the goods as per order of the Complainant. Owing to pandemic situation for COVID-19 and lock down declared by Govt. O.P. locked his business and Complainant also stopped his construction work and by that time O.P. informed to the Complainant due to lock down situation he was unable to give delivery but after normal situation he can deliver schedule goods/building materials to the Complainant. The Complainant agreed to him. After normal situation the Complainant requested to deliver the building materials and after several reminders to the O.P he neither supplied the goods nor returned the money to the Complainant. After several request and reminder by the Complainant to the O.P. for return the money immediately but in vain. Thereafter Complainant several times met with the O.P. and requested him to supply the Ordered goods or return back the money but he did not take any proper step for the same. The O.P. misused good faith of the Complainant; he deliberately, intentionally and willfully has not supplied/delivered building materials/goods as per order. Owing to non delivery of goods/materials or non return the money by O.P, the Complainant sent a 7 days notice on 20.04.2022 to O.P. through his Ld. Advocate Mr. Chinmoy Bhowmick, but after receiving the said notice O.P had  not taken any proper steps. After received said notice O.P. intentionally, willfully, deliberately and due intention of illegal gain and ill motive he replied against said notice on 28.04.2022 through his Ld. Advocate Mujibar Rahaman, all the contents of said reply are totally false, concocted, motivated and baseless.Thereafter the Complainant sent a reply on 02.05.2022 against illegal claim/demand by the O.P. in his notice/letter dated 28.04.2022 and also demanded all statements of account in respect of credit purchase and details of supplied materials to the Complainant but O.P. is totally silent till today he did not supply any information to the Complainant. The Complainant feels mental pain and agony due to unnecessary harassment and non return the advance money. The cause of action arose of this case on 28.04.2022 within this jurisdiction. Under such circumstances, the complainant humbly prays for directing the op to return the amount of Rs. 3,13,600/- with interest from the date of receiving of advance money. For compensation of Rs.50,000/- for harassment, mental pain and agony, for litigation cost of Rs. 10,000/- and for other reliefs  as per law and equity.

Notice of the case was duly served upon the op. The OP has  contested the case by filing Written version thereof. The sum and substance of the written version can be stated as follows: The instant case is not maintainable in its present form and in law. The statements made in the complaint are false, baseless ,motivated and concocted. According to his version, after lock down for Covid-19 the complainant took delivery of all his materials in the month of December of 2022.Again, the Complainant took building materials for his house construction on 15.02.2022 by paying Rs. 1,00,000/- and he paid Rs. 2,00,000/- and due was Rs. 2,14,600/-. The Complainant did not pay the same till now. The Complainant has filed this case upon the Opposite Party to hackle the Opposite Party for which he has not to pay the said due of Rs. 2,14,600/-. The actual cause of action of this case has arisen on and from 16.03.2020 when he advanced the money to the Opposite Party to take building materials. This case should have beenbe filed as on and before 17.03.2022. But to take advantage of cause of action the complainant intentionally gave advocate’s letter on 20.04.2022 to the Opposite Party which can not give any cause of action by such letter and as such this case is barred by limitation. The Complainant can not get any relief from the Opposite  Party which he has prayed in this complainant. According to op this case is liable to be dismissed with cost.

Points for determination are:                                                           

1. Is the case maintainable in its present form and in law?    

2. Is the Complainant entitled to the relief(s) as sought for?

Decision with reasons

Both the points, being inter related to each other, are taken up together for discussion  for sake of brevity and  convenience.

We have carefully perused and assessed the complaint on affidavit of the complainant, written version filed by op, evidence of both parties, and other documents.

We have given thoughtful consideration of the rival arguments of Ld Advocates for both parties.

 In course of argument Ld Advocate for the op has contended that the instant case is barred by law of limitation; he added that  mere writing of letters  to the respondent authority and waiting for reply unduly long time would notextend period of limitation in view of decision of the Hon’ble NCDRC reported in 2015(1) CPR 558 ( NC) ; and cause of action accrued can  not be extended by a party by just writing demand letters/legal notice in view of the decision laid down by  the Hon’ble NCDRC reported in 2015(4) CPR 210 ( NC).

Per Contra the Ld Advocate for the Complainant has submitted that the instant case has been filed intervening the period of COVID -19 Pandemic situation ;so the law of limitation requires to be the considered in the backdrop of said pandemic period.

Now, coming to the rival contentions regarding mischief of limitation, it is evident that there is no dispute with regard to the issuance of invoice (Annexure-2) and receiving payments by op ( Annexure1). It is evident that invoice was raised on 16.03.2021 but no outer limit or date was mentioned for delivery of the goods by op from which the period of limitation can be counted; it has also not been  mentioned on the invoice that the goods were delivered on the very date of raising invoice. It is worthy to be mentioned that the mischief of limitation was kept in abeyance during the COVID-19, Lockdown period. The instant case was admitted for trial on 26 08.2022 in the backdrop of said waiver of mischief of limitation. Moreover, as there was no  outer limit or date was mentioned for delivery of the goods by op in the invoice from which the date of limitation is to be counted ,the question of cause of action accrued can  not be extended by a party by just writing demand letters/legal notice does not arise. In such a case even the notice of the case can be treated as the date of knowledge for the compliance of the demand by the complainant. So, the contentions raised by the Ld Advocate for the op  have no leg to stand upon. The two decisions of the Hon’ble NCDRC as cited by the Ld Advocate for the op are not applicable in this case as the facts and circumstances of this case are different from the facts and circumstances of the referred cases. Having regards had to the facts and circumstances of the case and evidence on record, it is evident that  the complainant being a consumer has alleged unfair trade practice againstthe op ; the bundle of facts indicate that this case is maintainable in its present form and in law.

On further evaluation of the materials on record,  it appears that there are contradiction and discrepancy in the written version, evidence of the op and Advocate’s letters on reply;  in written version and in examination in chief on oath ( para-5) op stated that after lock down for COVID -19 the complainant took delivery all his materials in the month of December of 2022.In Advocate’s letter dated28.04.2022 in para-2,page-2,it is stated that complainant paid as per cash memo and took delivery of the same ,he did not mention any date , month and year.

It is to be noted that the case has been filed on 16.08.2022; how delivery was given in the month of December of 2022. How it can be true. Op has not filed the delivery register or daily business register to show all the transactions in support of his defenses. The complainant has discharged his primafacie onus to prove his averments made in the complaint by examination in chief on oath, nothing adverse could be elicited through questionnaire. The op has failed to rebut the said statement of complainant on oath by cogent evidence; his contradictory and discrepant  statements strengthened the statements of the complainant. From the preponderance of evidence, it appears that the complainant’s versions are reliable and should be accepted. As such, it is observed that the op has set an instance of unfair trade practice by not delivering the goods as per in voice raisedon 16.03.2021. The complainant is entitled to get return of the money paid for goods as per in voice raised on 16.03.2021 with interest and litigation costs.

Both the points are disposed of accordingly.

Thus, the case succeeds.

Hence, it is

O R D E R E D

That CC/115 of 2022 be and the same is allowed on contest against the op.

The op is  hereby directed to pay Rs. 3,13,600/-along with simple interest @ 7% per annum from the date of filing of this case till realization in the nature of compensation and Rs.3000/- as towards litigation costs to the complainant within 45 days from the date of this order.

In default, the complainant will be at liberty to put the order into execution as per law.

Let a copy of the judgment be supplied to each of the parties free of cost.