Order No:10

Ld. Lawyer for the complainant is present.  The instant case is taken up for hearing argument afresh.  Heard argument for the complainant in full.  Put up after recess for passing final order. 

Later

The case record is put up after recess for passing final order.

Today is fixed for delivery of judgment/final order.

Final order is ready. It is sealed, signed and delivered in open Forum/Commission.

It is ordered that,

That the complaint case be and the same is allowed exparte against the OP with cost of Rs. 10,000/-.

That the OP is directed to supply the furniture worth Rs. 50,000/- within 60 days from the date of this order.

Alternatively, the OP is directed to refund Rs. 50,000/- only with simple interest @10% p.a. w.e.f.31.01.2020 till full realization within  60 days from the date of this order.

The OP is also directed to pay compensation to the tune of Rs.30,000/- only for mental pain, agony and harassment within 60 days from the date of this order.

Complainant is at liberty to put the order into execution if the orders are not complied with after the expiry of 60 days from the date of this order.

Let a copy of the order be sent free of cost to the parties concerned.

The final order will also be available in the following website:

www.confonet.nic.in.

                                DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

SOUTH 24-PARGANAS

AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144

C.C.NO._69_  OF 2021

DATE OF FILING           DATE OF ADMISSION                  DATE OF FINAL ORDER

     08.07.2021                        13.07.2021                                       20.05.2022

Present                                             :  President  :           Ashoke Kumar Pal

    Member   :           Jagadish Chandra Barman

                                                               Member    :           Sangita Paul

COMPLAINANTS                           : 1.  Sri Suman Kumar, S/O Sri Ramdev Saha,

residing at Block-D, Flat-4C, Sugam Serenity, Kusumba Road, P.O. & P.S. – Narendrapur,

Pin – 700 103, District- South 24 Parganas.

                                                                                       Versus

O.P/O.Ps                                          :1. Sri Tarun Mondal, S/O Sri Srikanta Mondal,

                                                            Shaidpur, Kalikapur-2, P.O.-Champahati,  

                                                            P.S.-Sonarpur, District-South 24 Parganas,

Pin-743 330.

Smt. Sangita Paul, Member

This is a case filed by Sri Suman Kumar, S/o. Sri Ramdev Saha against Sri Tarun Mondal, S/o. Sri Sukanta Mondal with a prayer for a direction to the OP to supply the furniture or refund the advance amount of Rs.50,000/- only with interest and to pay Rs.50,000/- only to the complainant for mental agony and harassment and to pay Rs.10,000/- only for the cost of litigation.

The Opposite Party, Sri Tarun Mondal S/o. Sri Sukanta Mondal is a carpenter and he is operating a business for making furniture.  The address of the OP is Shaidpur, Kalikapur-2, P.O.-Champahati, P.S.-Sonarpur, Dist-24 Parganas (South).

Complainant, by filing this case, states that the OP, the carpenter was known to him and he entered into an agreement with the OP dated 13.08.2020  Complainant gave an order for manufacturing furniture. In terms of the agreement, the opposite party was supposed to make wooden furniture for complainant and the opposite party has taken Rs.50,000/- only as an advance as per clause of contract.  But the OP failed to supply the same  as per order.  As a result, the OP failed to do his job as per clause of agreement, and he could not supply the furniture to complainant.  There was a breach of contract.  

As the OP failed to return the amount of Rs.50,000/- only, he took the money with malafide intention.  The OP took the liability, but he failed to discharge the liability.  OP must return the amount taken as advance with interest, from the due date till realization of the said sum.

Complainant requested the OP for several times.  Complainant also sent personal messenger to the OP for refunding the due amount which complainant paid to the OP for making furniture, but the OP has been delaying to pay back the same on different pretexts or the other and so far has not paid even a single penny out of the said amount.  In fact, the OP did not pay any heed to complainant’s demand.

The OP is deficient in rendering proper service to complainant.  Complainant paid money, but the OP is negligent in rendering service.  As the OP did not make furniture for complainant the OP is liable to compensate to complainant.

On 31.01.2020, an agreement was signed between complainant and the opposite party.  The OP manufactures furniture.  Due to some personal engagement, the opposite party, Shri Tarun Mondal was unable to make the wooden furniture.  Though he took an amount of Rs.50,000/- only, he could not manufacture the furniture and supply the same to the complainant.  Not only that, the complainant also failed to get back  the advance amount.  In another agreement, the OP is supposed to return Rs.25,000/- only within 20 days i.e. on 30.08.2020, and the remaining Rs.25,000/- will be utilized as labour charge of making furniture.  In reality, complainant got nothing; neither he got money which was spent by him, nor he got the furniture.

That the cause of action to file this complaint arose on 13.08.2020 when the opposite party and complainant entered into an agreement for supply of furniture.  The cause of action is still continuing.

Therefore the complainant is within the limitation period.  That this Ld. Commission is competent to decide the present complaint as the opposite party is operating his business within the territorial jurisdiction of the Ld. Commission.

Hence, complainant prays for directing the opposite party to supply the furniture or refund the advance amount of Rs.50,000/- only with interest, to pay Rs.50,000/- only to complainant for mental agony and harassment and to pay Rs.10,000/- only for the cost of litigation to complainant.

Notice was sent to the OP on 29.11.2021, complainant files postal track report showing due service of notice upon the OP on 20.11.2021.  On, the next date i.e. on 20.12.2021, complainant was present.  But the OP did not enter appearance so the case proceeded exparte against the OP.  Complainant files evidence on affidavit on 27.01.2022 and on 21.03.2022 complainant files BNA,  Argument was heard and we proceeded for giving judgement.

Points of Consideration

1. Is the complainant, a consumer?
2. Is the OP guilty of deficiency in service and unfair trade practice?
3. Is the complainant entitled to get relief as prayed for?

Decisions with Reasons

1. Complainant is an Indian Citizen. He wanted to make some furniture and contacted with the opposite party. The opposite party Shri Tarun Mondal, S/o. Shri Sukanta Mondal is a carpenter.  He makes furniture and was supposed to supply the same to his customer’s residence .  Complainant entered into an agreement with the opposite party dated 31.01.2020.  The OP was supposed to make the wooden furniture for complainant.  Complainant paid Rs.50,000/- only as an advance.  But the OP failed to keep his promise.  He did not make the furniture.  So there is no question of supplying the same to the complainant’s house.  As complainant made the full consideration amount, he is a consumer.  So the first point is settled in favour of the complainant.
2. Complainant gave the OP Rs.50,000/- only for making furniture.  THE OP did not make the furniture.  Neither OP made the furniture nor he returned the amount paid by complainant.  Complainant wanted to contact with the OP.  But the OP did not feel it important to contact with the complainant and refund the amount of Rs.50,000/-.  In the contract, it was mentioned that the OP would make the wooden furniture.  But OP failed to manufacture the same.  OP did not return the amount.  Then in a new contract was signed and it was mentioned that complainant was to return Rs.25,000/- within 30.08.2020 and at the same time, the OP would finish the work of making furniture and the remaining Rs.25,000/- would be used as labour charge.  Nothing of that sort happened for the reason best known to the O.P.  Unfortunately, the OP violated the contract, and deliberately failed to make and supply the furniture.  It appears that the OP has miserably failed to refund the advance amount paid by complainant.  OP failed to perform his duty.  In view of the above noted facts, it is clear that OP is liable to refund the principal amount along with interest, from the date of payment till actual realization of the said sum.  That the OP failed to keep the promise of refunding Rs.25,000/- according to 2nd  agreement. The OP failed to act according to the agreement.  Hence, it is evident that OP is guilty of unfair trade practice and deficiency in service.  OP is deficient in rendering proper service to the complainant, because OP failed to make furniture and deliver it to the complainant.  OP took money from the complainant but failed to perform the job, and he did not refund the amount of Rs.50,000/- only paid by complainant in advance.  Complainant wanted to contact with the OP.  But the OP avoided.  Hence, it appears that OP is guilty of deficiency in service and unfair trade practice.  The second point is also settled in favour of complainant.   
3. Complainant was harassed by the OP for several times.  Complainant did not get back the amount paid in advance to the OP.  Complainant paid Rs.50,000/- only for making furniture to the OP.  The OP failed to manufacture, and did not return the money.  Had the OP returned the money, no question of unfair trade practice would have been raised.  From the very beginning, the OP delayed in making furniture.  Unfortunately the OP neither made the furniture nor refunded the money taken in advance.  The OP mentioned in the agreement that he would return Rs.25,000/- to complainant and the rest amount of Rs.25,000/- would be spent for giving labour charges to the carpenters.  But ultimately, Furniture was not made.  Complainant demanded the money taken in advance but OP did not pay back the same.  OP harassed the complainant by this way or that and as such the complainant is entitled to get the relief as prayed for.  The third point is also settled in favour of complainant.

In the result, complainant succeeded to prove his case as made out exparte.

Hence, it is,

                                                                                ORDERED

That the complaint case be and the same is allowed exparte against the OP with cost of Rs. 10,000/-.

That the OP is directed to supply the furniture worth Rs. 50,000/- within 60 days from the date of this order.

Alternatively, the OP is directed to refund Rs. 50,000/- only with simple interest @10% p.a. w.e.f.31.01.2020 till full realization within  60 days from the date of this order.

The OP is also directed to pay compensation to the tune of Rs.30,000/- only for mental pain, agony and harassment within 60 days from the date of this order.

Complainant is at liberty to put the order into execution if the orders are not complied with after the expiry of 60 days from the date of this order.

Let a copy of the order be sent free of cost to the parties concerned.

The final order will also be available in the following website:

www.confonet.nic.in.

Dictated and Corrected by me:

                                Sangita Paul

                                        Member