FINAL ORDER
Shri Kalipada Saha has filed the present case U/S 12 of C.P. Act, 1986 praying for issuing direction upon the O.Ps to pay Rs.4,72,500/- to the Complainant for his compensation and relief.
The brief facts of the case as can be gathered from the case record is that the Complainant carrying on the business of supplying provision of poultry, eggs for maintaining his livelihood.
The Opposite Party is working at Army (ASC 440 UNIT) and deals with supply in the Army Canteen that is situated within the jurisdiction of this Ld. Forum.
On 29.11.2014 the Complainant entered into an agreement with the OP in presence of two witnesses to supply of eggs to the OP against payment of Rs.50,000/- per week made by the OP. The OP also would pay outstanding amount of Rs.3,12,500/- to the Complainant . After execution of said agreement, the Complainant collected eggs from market and supplied to the OP but the OP neither received the same nor paid the outstanding amount as per provision of agreement. After that the Complainant made several contact to the OP for acting as per agreement that executed on 29.11.2014 but the OP did not pay any heed towards Complainant. Thereafter, by noticing the escaping attitude of the O.P., he sent legal notice to the OP but all were in vain. It is the case of the Complainant that the OP did not give the outstanding amount to the Complainant and did not receive the eggs from him as per agreement that can be treated breaking of promise and deficiency in service. He is suffering irreparable loss and injury due to such negligent act of the OP. As a result, the Complainant is in great financial problem and suffered huge mental pain and unnecessary harassments. Thus, he filed the present case and seeking reliefs and redress as incorporated in the prayer portion of the Complaint.
In the present case, the notice was issued upon O.P by Regd. Post with A/D but the O.P did not appear before this Forum despite receiving the notice for which the present case was heard in ex-parte.
In the light of the contention of both parties, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986
- Whether this case is maintainable before this Forum?
- Has this Forum jurisdiction to entertain the instant complaint?
- Has the O.P any deficiency in service as alleged by the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully and heard the argument in ex-parte. Perused the evidence on affidavit of the Complainant and all original documents.
The Ld. Agent for the Complainant cited two rulings.
- 2013 (1) CPR 294 (NC)
- 1986-2008 (Consumer 13177) (NS) Supreme Court of India.
Point No.1.
In the case in hand, the Complainant and the Opposite Party entered into an agreement that has been executed on 29.11. 2014. The Complainant hired services from the Opposite Party through the said agreement only for earning his livelihood by means of self-employment. Thus, the Complainant comes under the purview of “Consumer” as per section 2 (1) (d) (ii) of C.P. Act 1986.
Point No.2
It is the case of violation of agreement/contract. In question of maintainability reliance has been placed upon the Ruling 2013 (1) CPR 294 (NC), cited by the Ld. Agent for the Complainant where in the Hon’ble National Commission in Poonam Chambers “B” Commercial Vs. M/s Aluplex India Pvt. Ltd. pleased to hold that “once parties entered into a contract and OP agreed to provide service to the Complainant and if OP stopped work, Complainant is entitled to file claim on account of deficiency of service even after termination of contract.” Thus, in view of the said ruling this case is maintainable before this Forum.
Point No.3
It appears that the Opposite Party did not reside within the jurisdiction of this Forum but the cause of action arose within this district i.e. the agreement between the parties executed at Mathabhanga under district of Cooch Behar. Thus, we can take recourse of section 11 (c) and hold that this Forum has jurisdiction to try the case. The complaint value of this case is Rs. 4,22,500/- i.e. far less than the prescribed limit. So, this Forum has territorial and pecuniary jurisdiction to try this case.
Point No. 4 & 5.
Both points are taken up together for convenience of discussion.
Evidently, an agreement had been executed between the Complainant and the Opposite Party on 29.11.2014 in non-judicial stamp paper by Notary, which corroborated the facts described in the complaint. The Complainant collected eggs from different market to sell the same to the OP. As per agreement dated 29.11. 2014 the O.P. ought to purchase the egg of Rs. 50,000/- per week but he did not do that for which the Complainant faced pecuniary loss.
Evidently, the Complainant sent two legal notices dated 29.01.2015 and 18.03.2015.
It appears from the materials made available in the record that the agreement executed in between the parties in presence of witness. From the entire factual matrix of the case and the statement of facts emerging from the evidence on affidavit, we are in considered opinion that the OP violated the terms of the agreement.
It is pertinent to mention that the OP did not contest the case and failed to appear before this Forum, which seems that the OP has nothing to challenge the allegation made by the Complainant.
It is also pertinent point to mention that this case is for violation of agreement that is clearly deficiency in service of the Opposite Party. The OP failed to act/keep promise, laid down in the agreement for which the Complainant suffered mental agony and huge monitory loss. In this case, promise was made by the Opposite Party by entered into an agreement but failed to keep promise for which the doctrine of promissory estoppels could squarely be applicable.
In this juncture, reliance has been placed upon one ruling reported in 1986-2008 Consumer 13177 (NS) Supreme Court Of India where the Hon”ble Supreme Court in a case L.M.L Ltd. Vs. State of U.P. & Others observed that “the doctrine of estoppels shall apply in the cases where the promise was made. However, the principle of said doctrine would, however, not be applicable where no such promise was made.”
In the light of the fore-going discussion and relying on the reported decisions, we have no other alternative but to hold that the Opposite Party failed to act according the agreement that is tantamount to deficiency in service and the OP is liable to compensate the Complainant.
Thus, all the points are decided in favour of the Complainant.
So, the case succeeds but in part.
ORDER
Hence, it is ordered that,
The DF Case No.53/2015 is allowed in ex-parte but in part with cost of Rs.5,000/- against the Opposite Party.
The O.P is hereby directed to act in accordance with the agreement dated 29.11.2014 by purchasing the eggs of Rs. 50,000/- in every week also to pay Rs. 3,12,500/- as outstanding dues to the Complainant.
The O.P is further directed to pay Rs.30,000/- as compensation for his pecuniary loss. The O.P is also directed to comply the previously mentioned order within 60 days failure of which the OP shall have to pay Rs.50/- for each day’s delay and the amount to be accumulated shall be deposited in the State Consumer Welfare Fund.
Let plain copy of this Final Order be made available and be supplied free of cost, to the concerned party/Ld. Advocate by hand/Registered Post with A/D forthwith for information and necessary action, as per Rules.
