KUNDAN KUMAR KUMAI                               

This is an appeal preferred against the order and judgment dated 22/09/2022, passed by the Ld. DCDRC, Alipurduar, in case no. CC/01/2022.

Brief facts of the appellant case are that, the respondent had, in the month of April 2021, negotiated for a paper cup machine and purchase of raw material for making paper cup, with the officials of the appellant company. On 23/04/2021, the elder brother of the respondent, Angshuman Ghosh, had gone to Kolkata and purchased an automatic paper cup machine. At that time one person, namely Raj, having mobile number – 8144920476, took him to the office of the appellant, at Panihati, Kolkata. The said Anghusman Ghosh, had then requested, for supply of good quality raw materials, for making paper cup. On the assurance, the respondent had paid Rs. 103815, in two different bank accounts of the appellant, in Axis Bank, Panihati Branch and ICICI Bank, Khardah Branch, on 24/04/2021, from Alipurduar, through net banking and RTGS. On that basis, raw material had also been supplied by the appellant. But due to delay in the installation of the machine, the production was started after a long interval, from the date of the supply. During production, it was observed that the raw material supplied were defective and of poor quality. The raw material was also of oversize, for which no finishing, could be done on the product and the respondent had to stop production incurring financial loss.

The respondent had reported the matter verbally to the appellant, on various occasions and also requested the appellant to replace those defective materials. But the appellant company failed to do anything. The respondent not only had financial problems, but due to such supply of defective materials sustained a loss of reputation and good will. On 18/11/2021, the respondent issued a legal notice seeking compensation of Rs. 1,00,000/- (one lakh) only, but the appellant replied with a bunch of false, fabricated and imaginary allegations. The respondent then finding no alternative, lodged a complaint before Ld. Commission below, with necessary prayers. Hence this case.

The appellant appeared to contest the claim, but failed to file the written version, for which reason the case was decided ex-parte.

After hearing the complainant and ongoing through the evidence, the Ld. DCDRC, Alipurduar passed the impugned order directing the appellant to pay the decretal amount of Rs.75,000/- (Seventy-five thousand) only to the respondent within 30 days, from the date of the impugned order.

Being aggrieved by the impugned order, the appellant preferred this instant appeal on the ground, that the Ld. DCDRC, Alipurduar, had no jurisdiction to entertain this complaint. It was further mentioned that, the respondent had made an inordinate delay in reporting that the materials supplied were defective. That apart the appellant had on the assurance of the respondent of huge orders purchased raw materials amounting to Rs. 5,00,000/- (Five lakh) only and most of it were lying unused and getting deteriorated, incurring a loss of Rs. 5,00,000/- (Five lakh) only.

   Decision with reason

Ld. advocate for the appellant at the time of final hearing, had submitted that as the jurisdiction of the appellant’s address was at Panihati, therefore, the jurisdiction of North 24 Parganas was attracted. That apart the respondent had purchased the raw material for commercial purpose and was not a Consumer under the Consumer Protection Act 2019. Moreover, the respondent after receipt of the delivery of raw materials, had lodged a complaint of defectiveness after a long gap of time. Furthermore, on the assurance of the respondent of huge orders the appellant had purchased huge raw materials amounting to Rs. 5,00,000/- (Five lakh) only most of wage was lying unused and in deteriorating condition. He then assailed the impugned order on the ground, that the same had been passed erroneously. He then prayed for allowing of the appeal.

Ld. Advocate for the respondent on the other hand countered the above argument, by submitting that the cause of action arose at Alipurduar, as payment through net banking and RTGS had been done from Alipurduar. He had also submitted that, even though, the respondent had purchased the raw materials for commercial purpose, but it was in order to earn his livelihood, he also submitted that the defectiveness of the raw materials could not be done earlier, as the installation of the machine took a long time and only after that the raw materials were found to be defected. Moreover, the appellant had entered appearance and did not file the written version intentionally, for which reason, this appeal should be dismissed.

Prior to going in to the merits of this case, it needs to be pointed out that the respondent in his complaint, had prayed for business loss of Rs. 1,00,000/- (One lakh) only, but from the impugned order, it is found that only Rs. 50,000/- (Fifty thousand) only had been allowed, but nowhere in the body of the judgment is there any reason ascribed for not allowing the loss of Rs. 1,00,000/- (One lakh) only, sustained due to defective raw materials. On this ground itself, the impugned order needs to be set aside.

 That apart, the appellant has filed this appeal in which new cases had been introduced and which have not been tested before the Ld. Commission below, for which reason, the instant appeal needs to be remanded to the Ld. Commission below, for according an opportunity to the appellant to prove his case. However, such an opportunity should not be of such duration, that is detrimental to not only the respondent, but also to the cause of justice. As a result, the instant appeal succeeds.

 It is therefore

 Ordered

That the instant appeal be and the same is allowed on contest with costs of Rs. 5,000/- (Five thousand) only payables by the appellant to the respondent.

The impugned order is here by set aside.

Copy of the order be sent to the parties, free of costs.

Copy of the order be sent to the Ld. DCDRC, Alipurduar, for necessary information and action.