OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.49/2011
Present:-
1) Md.Sahadat Hussain, A.J.S. - President
2) Smti Archana Deka Lahkar - Member
3) Md Jamatul Islam - Member
Mr Prasannna Kr Mozumdar -Complainant
S/O- Late Narendra Kr Mozumdar
R/O- A.T.Road,Adabari,
Guwahati-781014,Assam
-VS-
Sri Kamaleswar Saloi, the Proprietor -Opp.Party
Home Sweet Home
A.T.Road,Near Santipur Bus Stop,
Santipur,Guwahati-781009
Appearance:
Ld advocate Mr Samujjal Pratim Sarmah for the complainant
Ld.advocate Mr Ramendra Nath Dev Sarmah for the opp.party
Date of argument - 27.07.2018
Date of judgment - 28.08.2018
JUDGMENT
This is a proceeding U/S- 12 of the Consumer Protection Act, 1986
1. The complaint filed by Shri Prasanna Kr Mozumdar against Sri Kamaleswar Saloi, the Proprietor ,Home Sweet Home , Santipur,Guwahati was admitted on 14/11/2011 and notice was served on the opp. party and opp. party also filed his written statement . Thereafter , complainant filed his evidence in affidavit and he was also cross examined by opp. party side . The opp. party filed his evidence in affidavit and he was also cross examined by the complainant side. Ld advocate Ms Rita Devi Mozumdar filed written argument for the complainant on 07/09/2017 ; and Ld advocate Mr R.N.D.Sarma filed written argument for the opp. party on 04/06/2018 . Finally, on 27/07/2018 we have heard oral argument of both sides’ Ld advocate, and today we deliver our judgment which is as below-
2. The complainant’s case in brief is that the complainant on 09/11/2010 placed an order to the opp. party firm for purchasing a dressing table and paid advance amount fixing the day of 20/11/2010 for delivery of the item but the opp. party did not deliver the item on 20/11/2010 and after his repeated request, the opp. party sent the dressing table to his residence through their employee but he found it was defective and the employee of opp. party assured him that they will bring another dressing table on the next day and on that day he paid the remaining amount in the hand of the employee of the opp. party but on asking for money receipt they said that they were not in position to give money receipt on that day, but they assured him that they will bring the said receipt with the dressing table on the next day and that was confirmed by the opp. party over phone , but on the next day the opp. party did not send the dressing table to his residence and while the opp. party failed to deliver the said item , the order was cancelled in January,2011 as the order was placed for gifting said item in a marriage and he bought another piece from other source and gifted in the said marriage. Thereafter, he asked the opp. party to return the money already paid and he, on 30/08/2011 ,visited the shop of the opp. party to take back the money but they declined to pay the same. Then , he sent a legal notice to the opp. party and one advocate ,Mr G.C.Deka on behalf of opp. party replied to their advocate notice that they are not going to return the money and also stated that no advance was paid. It become clear to them that the opp. party duped the complainant’s money and that was done to make wrongful gain . Therefore , the opp. party is liable to return the money (Rs.9,500/-) which he had paid to the opp. party and also to pay him compensation of Rs.50,000/- for causing harassment to him and also to pay another amount of Rs.50,000/- as cost of the proceeding.
3. The pleading of the opp. party is that , there is no cause of action for filing the complaint ; the complaint is barred by limitation . The complaint is false and vexatious . It is true that , the complainant placed an order to the opp. party to supply a dressing table which is of cost of Rs.9,500/- and complainant had on 09/11/2010, paid Rs.500/- as advance out of total advance money of Rs.2,850/- and complainant promised to pay the remaining advance amount on 10/11/2010 (next day ) and they accepted the order on 09/11/2010 and the balance amount of Rs.9,000/- was to be paid on 10/11/2010 ; but after placing the order the complainant did not come to the shop of the opp. party on 10/11/2010 as promise made on 09/11/2010. The opp. party completed the dressing table on 20/11/2010 and on that day also complainant did not come to the shop of the opp. party to take delivery of the said item although he was informed by the opp. party to take delivery of the item. Neither the opp. party nor his employee ever visited the residence of the complainant on 15/12/2010, nor they gave assurance to the complainant that another dressing table would be given by them on the next day . The complainant did not visit the shop of the opp. party to take delivery of the said dressing table ,nor the complainant has informed them that the order was cancelled ,rather, each time the complainant promised to the opp. party that he would come to take delivery of the dressing table when he would be informed to take delivery of the same . It is fact that opp. party received a letter dtd. 02/09/2011 from the counsel of the complainant-Ms Rita Mozumdar . They did not fail to deliver the dressing table but it is true by the said legal notice that the opp. party was asked to return the money paid to the complainant but it is not true that on 30/08/2011 , the complainant visited the shop of the opp. party to take back the amount already paid but they decline to pay the same . They sent a reply to the pleader notice of the complainant dtd. 02/09/2011 vide their letter dtd. 07/09/2011 only for maintaining goodwill of the customer through their advertisement requesting him to make the payment of the balance amount and to take delivery of the dressing table and the complainant did not visit their shop to take delivery of the same by paying the balance amount and in result, the item is still in their godown and thereby the complainant failed to comply the terms and conditions of the order and hence he has no right to get the advance money back and as such the complaint is liable to be dismissed .
4. After perusing the both sides’ evidence , it is found that the complainant had ,on 09/11/2010, placed an order to the opp. party’s firm -“Home Sweet Home”, A.T.Road,Santipur,Guwahati for purchasing a dressing table from them at a price of Rs.9,500/- paying Rs.500/- as advance on that very day .
5. The complainant states that the employees of the opp. party visited his residence with a dressing table on 15/12/2010 and on that day he paid the balance amount to the said employees but he returned the dressing table finding it was defective and the said employees assured him that they would bring new dressing table on the next day . In this case , the opp. party side plea is that they did not send any employee to the residence of the complainant to give delivery of the said dressing table on 15/12/2010 or on any other date and it is not true that they delivered a dressing table to the complainant in his residence on 15/12/2010 and that was found defective and on that day the complainant paid the remaining amount in the hand of his employees and their employees gave assurance to the complainant that they would bring the new table on the next day . Their specific plea is that as per terms of agreement of sale they completed making of the said dressing table before 20/11/2010 and while complainant did not come to take delivery of the item on 20/11/2010 , they informed the complainant over telephone to take delivery of the said dressing table , but the complainant has neither turned up to take delivery of the said item nor paid the balance amount . In this case , the complainant side has not filed any second document to establish his plea that he paid the remaining balance amount to the employee of the opp. party and nor adduces evidence to establish that the employees of the opp. party visited his residence on 15/12/2010 and delivered a defective dressing table which he returned and the said employees received the balance amount from him giving assurance to him that they will come with a new dressing table on the next day . We have perused Ext-1 , and it is found that in the said order, it is not mentioned that the item would be delivered in the residence of the complainant ; and reversely , it is written in term no-6 that customer will take goods from the shop . Thus Ext-1 signifies that there was no agreement of home delivery in the instant agreement of sale but it is the agreement that , the complainant has to take delivery of the dressing table from the shop of the opp. party . Thus , it is clearly established that as per terms of the agreement of sale, the complainant himself has to take delivery of the concerned dressing table from the shop of the opp. party and has to pay balance amount on the day of the delivery i.e. on 20/11/2010. It is thus clearly established that there is no agreement as to home delivery . The plea of the complainant that employees of the opp. party visited the residence of the complainant on 15/12/2010 and delivered the dressing table and the complainant paid the balance amount to the said employee and the said employee received the amount and took back the said dressing table giving assurance to come with a new dressing table on the next day does not get support from the sale agreement (Ext-1) .Secondly, it is also found that the complainant adduces no other evidence to lay support to his said plea . On the other hand , Ext-1 lays support to the plea of the opp. party that the sale agreement was made on 09/11/2010 and on that day the complainant paid Rs.500/- as advance out of the total price of Rs.9,500/- and with condition , that , the complainant has to take delivery from the shop of the opp. party on 20/11/2010 but the complainant has not visited their shop on 20/11/2010 for taking delivery of the said item nor paid the balance amount to them and he also has not visited their shop even after 20/11/2010 also inspite informing him by the opp. party over phone to take delivery of the item . Thus, it must be said that the plea of the complainant could not have been established by the complainant , rather the plea of the opp. party stands clearly established . So , the plea of the opp. party that the complainant on 09/11/2010 entered into a purchase agreement with the opp. party to purchase a dressing table from them at a price of Rs.9,500/- paying Rs.500/- on that day as advance with condition that , the complainant has to take delivery of the said item from their shop on 20/11/2010 by paying the balance amount , and on , 20/11/2010 the opp. party completed making of the said dressing table but the complainant has not visited the shop of the opp. party on 20/11/2010 and thereafter, for taking delivery of the said item and he has not paid the balance amount and he has also not visited the shop of the opp. party when the opp. party, over phone informed him to take delivery of the item finding him not visited in due date in their shop for taking delivery of the ordered item are true facts . From term no-3 of Ext-1 it is seen that advance is not returnable . As the complainant willingly refused to take delivery of the item ordered , as per term no-3, he is not entitled to get back the advance amount of Rs.500/- which he had paid to the opp. party on the day of entering into the agreement of purchase of the said item.
Summing up our discussion as above , we are of opinion that , the complainant has no cause of action to file this complaint against the opp. party and hence he is not entitled to get any relief as prayed.
6. Because of what has been discussed as above we hold that , the complaint has no merit . Hence , the complaint against the opp. party is dismissed on contest.
Given under our hands and seals today on this 28th August ,2018
(Smt Archana Deka Lahkar) (Md.Jamatul Islam) (Md.Sahadat Hussain)
Member Member President
