Date of Filing:13.02.2008<br /> Date of Order:28.07.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 28TH DAY OF JULY 2008<br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> <br /> <br /> <br /> COMPLAINT NO: 426 OF 2008<br /> <br /> S.M. Mani<br /> S/o. Late P.S. Muthu<br /> R/at First Floor, ‘Suvarna Nilaya’<br /> No. 102, LIC Bhimajyothi Colony<br /> Basaveswaranagar<br /> Bangalore 560 079 Complainant<br /> <br /> V/S<br /> Sri Mahalakshmi Timber, Glass<br /> and Plywoods<br /> MS Palya, Vidhyaranyapura Post<br /> Hesaraghatta Road<br /> Bangalore 560 097<br /> Represented by its Proprietors<br /> Mr. Vinod R. Patil<br /> Mr. Purushotham R. Patil Opposite Party<br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed under section 12 of the Consumer Protection Act claiming that opposite party may be directed to pay sum of Rs. 60,750/- with future interest.<br /> The facts of the case are that opposite party is trading in wood and allied business in the name and style Sri Mahalakshmi Timber, Glass and Plywood. On 29.12.2006 the complainant placed an order with opposite party for supply of wood for making frames for doors and windows. On the same day he gave sum of Rs. 50,000/- by way of cheque. Same was encashed. Opposite party has not supplied the goods to the complainant. He has many times approached the opposite party. The opposite party has neither supplied the materials nor returned advance amount paid by the complainant. Therefore, there is deficiency in service. The complainant prayed refund of Rs. 50,000/- and claimed interest of Rs. 9,750/- on that amount from 1.1.2007 to 1.2.2008. Complainant had issued legal notice through R.P.A.D. to the opposite party to pay the amount.<br /> 2. Notice issued to opposite party. Opposite party was put in appearance through advocate. Defence version was filed submitting that the opposite party has supplied the good pursuant to the order placed by the complainant through his contractor Mr. Srihari Prasad. Mr. Srihari Prasad has duly acknowledged in the buyer’s copy of the invoice dated 09.08.2007. Complainant through his contractor took the said consignment through Vehicle No. KA 04 B 1830. It is also submitted that Mr. Srihari Prasad is necessary party to the present proceedings. The complainant with an ulterior motive has filed the complaint to harass the opposite party. Hence, opposite party has prayed to dismiss the complaint.<br /> 3. Both the parties have filed the affidavits. The opposite party has also filed affidavit of one Mr. Keerthi Kumar and also Srihari Prasad. Arguments are heard. <br /> 4. The points for consideration are:<br /> a. Whether there was deficiency of service on the part of the opposite party?<br /> b. Whether the opposite party can be ordered to refund the amount to the complainant?<br /> REASONS<br /> 5. The facts of the case are very simple. It is admitted by the opposite party that the complainant has given a cheque for Rs. 50,000/- and he has encashed the cheque. The only defence taken by the opposite party is that he has supplied the woods to one Mr. Srihari Prasad who was the contractor of the complainant. The opposite party has produced Tax Invoice Bill dated 09.08.2007. Admittedly, on this bill the complainant has not signed. The case of the opposite party is that Srihari Prasad was the contractor. But, the learned advocate for the complainant contended that Srihari Prasad was not a contractor and he was not engaged by the complainant to construct his house. Srihari Prasad is not known to complainant. The learned advocate for the complainant submitted that opposite party has not produced a single document to show that the complainant had engaged Srihari Prasad as a contractor to construct his house. The opposite party has not produced any documents like agreement or any other record to show that the complainant has engaged Srihari Prasad to construct his house. Srihari Prasad has filed affidavit in support of opposite party stating that he is Co-partner of Sajjan Constructions and there is oral agreement to construct building of complainant and he submitted in the affidavit that opposite party has supplied the material and he has taken the consignment and had used the wood in the construction of the complainant’s building. Admittedly, the complainant has issued cheque for Rs. 50,000/- in favour of opposite party. The cheque is dated 29.12.2006 and amount encashed by the opposite party on same day. This fact is admitted by the opposite party. Now it is for the opposite party to establish that he had supplied the material worth Rs. 50,000/- to the complainant. Admittedly, the complainant has not signed on the Tax Invoice Bill produced by the opposite party. Srihari Prasad has signed on the bill. This bill is dated 09.08.2007. The complainant has paid the amount on 29.12.2006. It gives a doubt as to why the opposite party has taken more than 7 months time to supply the wood. The opposite party could have obtained the signature of complainant to show that really he had supplied the wood as per the order placed by the complainant. The opposite party has not produced any letter or document to show that the complainant has authorized Srihari Prasad to receive wood on his behalf. How could opposite party supply the material to third party without there being any authorization or authority. The opposite party is absolutely failed to establish that Srihari Prasad was a contractor for the construction of the building of the complainant. It is unbelievable and unacceptable that without there being any single documents how can contractor can build such a huge building. There must be some documentary evidence or proof to show that Srihari Prasad was the contractor for the construction of the building of the complainant. But, unfortunately in this case not a single document is forthcoming to prove that Srihari Prasad was engaged as contractor for the construction of building of complainant. In absence of any documentary proof the affidavit failed by Srihari Prasad in support of opposite party cannot be believed or accepted as true and correct. The complainant had issued legal notice to opposite party before filing the complaint. The copy of the legal notice is produced. Notice has been duly served on the opposite party. Postal acknowledgement is produced. The opposite party has not replied to the legal notice. The in action on the part of the opposite party in not replying the notice also goes against the opposite party. There was an opportunity for the opposite party at an earliest point of time to deny the case of the complainant. But, the opposite party even after receiving the legal notice had not chosen to reply to the notice. Therefore, an adverse inference can be drawn against the opposite party. This is very simple case. The payment of Rs. 50,000/- is being admitted by the opposite party. The only point that could be gone into is whether the opposite party has supplied the goods to the complainant worth Rs. 50,000/- or not. On this aspect the opposite party has miserably failed to prove or establish that he had supplied material worth Rs. 50,000/- to the complainant. Any material supplied to Srihari Prasad by the opposite party is nothing to do with the complainant. It may be a transaction between the opposite party and Srihari Prasad. If really opposite party had supplied material to Srihari Prasad it is for him to proceed against the Srihari Prasad for recovery of cost or price of the wood. The opposite party cannot bind the complainant for giving material to Srihari Prasad without there being any authorization by the complainant. From the defence version it is very clear that the opposite party has not supplied the material as per the order to the complainant. Therefore, he cannot escape his liability in refunding the amount to the complainant. The complainant has claimed 18% interest on the advance amount. This rate of interest is quite just and reasonable. The Hon’ble National Commission in several cases is awarding interest at 18% on the claimed amount. Therefore, taking into consideration all the facts and circumstances of the case and the arguments made by both the learned advocates for the parties I am of the opinion that the complainant is entitled for the refund of the amount with interest. In the result I proceed to pass the following:<br /> ORDER<br /> <br /> 6. The Complaint is allowed. The opposite party is directed to refund Rs. 50,000/- to the complainant.<br /> 7. The opposite party is directed to pay interest at 18% p.a. from 01.01.2007 till the date of payment / realisation on the above amount.<br /> 8. Complainant is also entitled for Rs. 2,000/- towards the costs of the present proceedings from the opposite party.<br /> 9. Send the copy of this Order to both the parties free of costs immediately. <br /> 10. Pronounced in the Open Forum on this 28TH DAY OF JULY 2008. <br /> Order accordingly,<br /> <br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> <br /> MEMBER MEMBER<br />