SRI TAPAN KUMAR BERA,

s/o lt. Satish Ch. Bera, residing at 27/1, Chatterjee Para Lane,P.S. Bantra, Dist Howrah - 1----------------------------------------------------  COMPLAINANT.

-          Versus   -

SRI PARMESWAR BAG,

prop. of New Ram Krishna Jewellers, 144, Narasingha Dutta Road, Kadamtala, P.S. Bantra, District – Howrah,PIN  - 1-----------------------------------------------------------------------------OPPOSITE PARTY.

                                                P   R    E     S    E    N     T

President     :     Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.

Member      :      Shri P.K. Chatterjee.

Member       :     Smt. Jhumki Saha.

                                                 F  I   N   A    L       O   R   D    E     R

1.                  Complainant Sri  Tapan Kumar Bera, by filing a petition  U/S 12 of the C .P. Act,

1986 ( as amended up to date ) has prayed for a direction to be given upon the O.P. to deliver gold ornament of 7 Bhori along with payment of cost and compensation.

2.                  Brief facts of the case is that complainant paid an amount of  Rs. 20,000/-as

advance to O.P. for making gold ornaments of 7 bhori @ Rs.6300/- per bhori in the month of March, 2005 being Annexure money  receipt no. 415 / March, 2005. Thereafter complainant was requesting O.P. to deliver the same but O.P. was going on  giving assurances day after day and complainant was going on asking him to deliver such ornaments. As O.P. remained silent and paid no heed to the request of the complaint, complainant lodged a complaint with Bangiyo Swarna Silpy Somittee on 31.08.2012 vide annexure letter dt. 31.08.2012. But O.P. did not even care for Bangiyo Swarna Silpy Somittee’s call and did not come forward for any peaceful and amicable settlement vide Annexure dated  14.10.2012  which prompted the complainant to send lawyer’s notice dt. 13.05.2013 which was duly received by O.P. vide Annexure postal A/D card. It is further alleged by the complainant that O.P. utilized his Rs. 20,000/- for a long time and made a good profit out of such Rs. 20,000/- but till date O.P. has not delivered the ordered 7 bhori gold ornament to the complainant which is nothing but gross deficiency in providing service on the part of the O.P. Finding no other alternative, complainant filed this petition praying for aforesaid reliefs.

Notice was served.  O.P. appeared and filed W/V. And the matter was heard on contest.

DECISION  WITH   REASONS      :

      O.P. in his W/V has denied and disputed all material facts vide para 4. But in para 5, O.P. has admitted the payment of Rs. 20,000/- by the complainant even it is stated by him that in the year 2005 the total price of gold of 7 bhori was Rs. 44,100/- @ Rs.6,300. As full  gold price was not paid by the complainant, ornaments could not be made by him. O.P. has also stated in para 8 that total amount payable by the complainant was Rs. 60,200/- including making charge of 7 Bhori gold ornaments. But complainant paid only Rs. 20,000/- and thereafter, the gold price increased to even Rs. 25,000/ - Rs. 30,000/- / 10gm. And under no circumstances, O.P. is at fault and liable to deliver 7 bhori gold ornaments to the complainant. O.P. has also explained the details of other important provisions of Sale Goods Act, viz. Section 45, Section 47, Section 48, Section 49, Section 50, Section 51 & Section 52. It is also denied by O.P. that any complaint was lodged with Bangiyo Swarna Silpy Somittee, on 31.08.2012 although mentioned the date wrongly as 31.09.2012. However, it may be a typographical mistake of O.P. However we do care and respect for other law. But at the same time it is to be kept in mind that C.P. Act, 1986 is a self contained Act, which was enacted with the spirit to provide better protection to the consumer. Complainant paid almost 50% of the total gold price being Rs.20,000/- out of Rs.44,100/-  as per O.P.’s calculation vide paras 5 & 6 of W/V. There is no such practice that for making charge, one has to pay an advance. So, entire amount of Rs. 20,000/- was made towards advance by the complainant for purchase of gold only to the O.P.  Even after that O.P. did not prepare his ornaments. Then what is the spirit behind giving an advance for making gold ornaments. One could have directly gone to a jewellery shop with total amount required for purchasing ornament and bought the same. Why this convention of giving advance is in practice. It is only to enable the other side to proceed with the work entrusted to him by the complainant. There is hardly any other consideration for giving an advance payment. O.P. did not show any care or respect towards such advance payment. When O.P. took an advance, he could have sent one letter to the complainant stating  therein that unless and until total payment is made by the complainant, ornaments  could not be made ready for delivery or when gold price was increasing, he could have returned that advance money by way of sending a cheque in favour of the complainant. But O.P. did  nothing. It is absolutely correct to think that O.P. with all malafide intention utilized that amount to purchase gold and sold at a higher price thereby made a good profit out of such utilization of that amount of Rs. 20,000/-. It is very well understandable by any man of common prudence. Neither delivered the ornaments nor returned advance amount till the filing of this instant case, O.P. has prompted the complainant to file this instant case against him alleging deficiency in service which became a continuous cause of action for filing this instant case. And we find O.P. was grossly negligent in discharging his part duty towards the complainant which ultimately made him deficient in providing service to the complainant. According the case succeeds on merit against O.P. with cost.

      Hence,

                                    O     R     D      E      R      E        D

      That the C. C. Case No.  213 of 2013 ( HDF 213 of 2013 )  be  allowed on contest with   costs  against  the O.P. 

      That the  O.P. is directed to deliver 7 bhori gold ornaments as per the schedule of ornaments given in prayer portion of the complaint / petition to the complainant within 30 days from this order and the complainant is also directed to pay the rest  amount for 7 bhori gold ornaments @ Rs. 6300/- along with making charge of Rs.16,100/- at the time of taking delivery of ornaments.

      The complainant do get an award of Rs. 2,000/- as compensation and Rs. 500/- as litigation cost.

      The O.P. is directed to pay total amount of Rs. 2,500/- to the complainant within one month from this order.

      Supply the copies of the order to the parties, as per rule.            

DICTATED  &    CORRECTED

BY   ME.  

      (  Jhumki Saha  )                                                                  

  Member, C.D.R.F.,Howrah.