Hon’ble Mr. Haradhan Mukhopadhyay, President.
The Complainant Sri Sourav Kumar Dutta filed the present case against the OP Mr. Kalyan Das stating inter alia in his petition of complaint several allegations with claim of relief which is described herein below in brief that the Complainant is an educated unemployed youth. The OP is a manufacturer of Paper Utensils Machinery under the name and style KDC Machinery. In order to run a trade and manufacturing of paper utensils, after being satisfied, the Complainant purchased one piece Hydraulic Paper Plate Machine for manufacturing of paper utensils from the OP on 20.03.19 (GST bill 09.03.19) against payment of Rs.41,300/- in cash. After receiving that amount OP issued tax invoice to the Complainant. The Complainant received that machine at Cooch Behar and informed the OP for installation of said machine in the Complainant business place against which the OP claimed money for providing accessories of said machine and raw materials for manufacturing purposes. Thereafter, the Complainant went to the Office of the OP and handed over a cheque for Rs.75,400/- bearing No.808491 of S.B.I., Sagardighi Branch dated 23.03.19 for purchasing raw materials and accessories to the OP. At that time the OP obtained some signature of the Complainant in blank paper and received the original Voter Card, Pan Card and Passport for installation of said machine with a promise to provide raw materials and thereafter the said amount would be enchased but subsequently he failed to honour his promises. After receiving the said cheque the OP started lingering the process of installation of the machine and supply of raw materials alongwith accessories. The Complainant again went to the Office of the OP in April, 2019 and submitted a complaint but the OP did not take any positive step and did not co-operate with the Complainant. So, the Complainant suffered irreparable loss and injury as he failed to open his business due to non-installation of the said machine and for non providing raw materials. Such wilful acts of the OP caused deficiency in service which is unfair trade practice. Hence, the present case. The cause of action for the present case arose on 20.03.19 and on subsequent dates. So, the Complainant prayed for an award with direction to the OP to install Hydraulic Paper Plate Machine in the Complainant’s business place and provide raw materials alongwith accessories of the machine or refund of cost of the machine, refund of original Voter card, Pan card and Passport of the Complainant and compensation for Rs.50,000/- towards mental pain and agony, Rs.50,000/- for deficiency in service and Rs.10,000/- towards litigation cost.
The OP denied all the major allegations in contesting the case by filing written version. The positive defence case as made out in the written version in brief is that the Paper Utensils Machinery in question was purchased for commercial purpose. So, the Complainant is not a consumer under the C.P. Act. Complainant purchased the said machine for resale. At the time of purchase the Complainant told that he would purchase machinery 20 to 30 pieces per month for resale. In good faith the OP delivered the machinery to the Complainant with part payment against which the Complainant issued account payee cheque for rest amount with an illmotive. The OP submitted the said cheque bearing No.808491 dated 23.03.19 to his bank but it was dishonoured against which the OP filed CR case No.3/19 under section 138 and 142 of the MI Act. If any purchaser requests for installation of machinery then the purchaser has to pay the installation charge and a separate mechanic is required for installation. For running the machinery so many labourers, mechanic, electrician and other person are required for maintenance of machinery which implies that the said machine is run for commercial purpose only. The Complainant received the machinery and other articles and the business place of OP at Assam with full satisfaction on 19.03.19 against signing the receipt paper on 19.03.19 but filed the present case intentionally. The engineer of the OP Mr. Ram Prasad Thakuria installed the machine on the request of the Complainant in another place but the Complainant directed to deposit part installation charge in the engineers account on 06.04.19 and 09.04.19. The Complainant is the proprietor of the National Industrial Corporation and he deals in industrial and commercial machinery, raw materials and component product. So, the Complainant is not a consumer under the C.P. Act. The OP is authorised dealer of Paper Utensils Machinery and manufacturer is Sigmatech Engineering, Gujrat. So that company is a necessary party. The OP filed only one bill dated 09.03.19 for Rs.41,300/- but another bill for hydraulic oil tank and other five items for Rs.54,103/- is not filed. The Complainant paid only Rs.20,000/- in cash but not paid the rest amount. The cheque issued was dishonoured for the rest amount. The OP therefore claimed the case is liable to be dismissed with cost.
The critical question involved in this case and the different points raised by the parties against each other demands for ascertainment of the following points for proper adjudication of the case.
Points for Determination
- Whether the Complainant is a consumer under the C.P. Act?
- Whether the Complainant is entitled to get the relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
Decision with reasons
Point No.1.
The present point relates to the propriety and justifiability of this case. The OP raised the question on the maintainability of the case on the ground that the Complainant is not a consumer since he runs the business for commercial purpose and not for is livelihood because the said machine required running by several labourers, mechanics and electrician.
The OP also raised the question that the Complainant is the owner of a big company namely The National Industrial Corporation which deals in industrial and commercial machinery, raw materials and component product.
The complaint does not disclose that the Complainant is the proprietor of that company. The OP also put the interrogatories under question No.3 as to whether the Complainant is owner of National Industrial Corporation, against which the Complainant answered that it is the matter of record. It means that he could not deny that he is not the owner of the said company being National Industrial Corporation. The OP in order to substantiate the defence case filed copy of some documents which shows that National Industrial Corporation has registered Office at Cooch Behar of which the Complainant is a proprietor. The said copy of the advertisement of National Industrial Corporation also deals in ecofriendly cotton, jute and paper carry bag and supply of raw materials.
The OP further argued that the Complainant through whatsApp massage intimated on 23.03.19 at 17.01 that customer of Bhutan will come to purchase that machine tomorrow. So, the Complainant uses to resale the machines for commercial purposes.
The said allegations through pleadings and documents could not be properly discarded by the Complainant. There is nothing to show that the Complainant runs the said company for earning his livelihood. The pleadings and the documents clearly established that the Complainant runs his business for commercial purpose.
Considering all these evidence on record and the observation of this Commission the Complainant is considered as not a consumer under the C.P. Act.
Point No.1 is accordingly decided against the Complainant.
Points No.2 & 3.
Both these points have a close nexus with each other. Accordingly, these are taken up together for brevity and convenience of discussion.
The Complainant alleged that despite payment of money for purchasing the Hydraulic Paper Plate Machine on 20.03.19 and making payment of Rs.41,300/- and a cheque for Rs.75,400/- for raw materials and accessories, the OP procrastinated and delayed the matter for installation of the said machine and providing raw materials alongwith accessories. Despite several contact the OP did not co-operate with the Complainant against which the Complainant filed the complaint in April, 2019 but all his efforts ended in vain.
The defence plea against the allegations is that the cheque for Rs.75,400/- dated 23.03.19 issued by the Complainant bearing No.808491 drawn on S.B.I., Sagardighi Branch was actually dishonoured against which the OP filed a criminal case under section 138 and 142 of NI Act.
The OP in this regard submitted the certified copy of the proceedings of the said criminal case in case No. NI Act 03/19 before the Ld. Judicial Magistrate first class Tihu, Nalbari, Assam. The case is still pending. As per the latest order dated 27.01.23 the case was fixed for argument on 13.02.23.
The said document established that the actual price of the said machine was not paid.
Ld. Defence Counsel argued that the Complainant has cheated the OP by not paying the actual price of the said machine since the cheque for Rs.75,400/- is dishonoured.
The argument has reasonable force.
Ld. Defence Counsel further argued that the OP failed to prove any document that he raised any complaint letter to the OP. After perusing all the documents it transpires that the Complainant could not file any alleged complaint letter which is claimed to have been submitted by him to the OP.
On the contrary the OP filed the documents being Annexure-A which is the case under section 138 of NI Act against the Complainant. Annexure-B is the receipt which shows supply of the said Hydraulic double dic paper plate making machine and other machines dated 19.03.19. As per the said Annexure-B a cash payment of Rs.20,000/- was made on 19.03.19 and a cheque for Rs.75,400/-. Annexure-B also discloses that original passport, voter card and pan card were submitted to the OP which was received by Sourav Kumar Dutta.
Annexure-C discloses that some amount was paid as per statement of account of Ram Prasad Thakuria. A sum of Rs.2000/- has been credited by the Complainant on 06.04.19 to the said Ram Prasad Thakuria and Rs.15,000/- on 09.04.19.
Regarding the said payment the defence plea OP is that as per demand of the Complainant the OP’s installation engineer Ram Prasad Thakuria installed the machine and the Complainant on 06.04.19 and 09.04.19 directed to deposit part installation charge in the engineers account.
Be that as it may the installation charge seems to have been paid by the Complainant as per the statement of account. It implies that the machine was installed by the engineer of the OP.
Annexure-E justifies the defence plea that the customer of Bhutan will come to purchase that machine tomorrow which means that the Complainant resale the machine purchased from other places. Annexure-F1 further establishes that the OP sold the said machine and raw materials to the Complainant against proper voucher. Annexure-F also relates to the voucher for sale of Hydraulic paper plate machine.
The evidence further discloses that the Complainant put different interrogatories to the OP against which the OP answered. As per the said evidence the OP is engaged for selling of paper intensive machine with valid trade licence. The OP categorically stated that after purchasing machine Complainant paid installation charge directly to the company engineer and as per direction of the Complainant the mechanic and engineer installed the machinery in commercial business place of the Complainant.
Answer came in cross-examination has a special effect and the same has to be relied on. As per the Annexures against question No.3 of interrogatory by the Complainant, the OP answered that the Complainant paid installation charge directly to the company engineer. But the second part of the answer implies that the Complainant installed the machine through engineer or mechanic in commercial business place of the Complainant.
Therefore it is again established that the Complainant runs his business for commercial purpose and as such he is not a consumer. Secondly cost of the installation was borne by the Complainant which is the convention for sale by the OP.
It is also categorically stated by the OP in answer to question No.4 that the OP has not yet received the due amount and the cheque was dishonoured.
The OP further stated in cross that the Complainant did not talk to the Complainant about any installation.
The answer given by the Complainant in interrogatories against the question by the OP appears to be avoiding the actual question.
Ld. Advocate for the Complainant argued that the case of NI Act has no nexus with the present case. The argument is not acceptable in as much as making payment is part of the transaction for sale of any article. Therefore non payment of money or an incomplete payment cannot be ground for claiming relief when the Complainant categorically stated that the money paid by the OP through cheque was dishonoured and price of the said machine is still due.
The aforesaid demeanour of the Complainant in regard to the disputed business transaction cannot put the seller to the liability of deficiency in service.
In the backdrop of the aforesaid discussion and having assessed entire evidence on record vis-à-vis the observation made herein above the Commission comes to the finding the Complainant failed to establish the case up to the hilt.
Points No. 2 & 3 are answered in negative.
The complaint case thus fails.
Hence, It is
Ordered
That the complaint Case No.98/2019 be and the same is dismissed on contest without any cost.
The Complaint case is accordingly disposed of.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order be also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
