Date of Filing: 29.05.2017. Date of Disposal: 06.09.2022.
Complainant :Dr. Kalyan Mitra, S/O Kanak Kr. Mitra, Chandrika Apartment, Abhirampur (Band Road), 2nd Lane, P.O. Malda, Dist. Malda, Pin-732101.
-VERSUS -
Opposite Party : Swapan Mandal, Proprietor of APURBA FURNITURE at Vill.& P.O. Bagnapara, P. S. Kalna Dist. Burdwan, Pin-713501.
Present : Mohammad Muizzuddeen -Hon’ble President.
: Mrs. Lipika Ghosh - Hon’ble Member.
: Mr. Atanu Kr. Dutta. - Hon’ble Member.
Appeared for the Complainant : Sri Gobinda Chandra Mondal Ld. Advocate.
Appeared for the Opposite Party : Sri Pappu Gupta Ld. Advocate.
FINAL ORDER
The complainant has filed this complaint u/S 12 of the C. P. Act, 1986 against the OP on 29.05.2017.
The case of the complainant, in brief, is that the complainant is a resident of Vill. Dhatrigram under the Kalna P.S., Dist. Burdwan and he is employed as Physician in the District Hospital at Malda Town. The OP runs a furniture business under the name and style ‘Apurba Furniture’ at Vill. & P.O. Bagnapara, P.S. Kalna, Dist. Burdwan. The OP made an overture before the complainant to supply all the required furniture including all goods and installation of modular Kitchen required for his newly purchased Flat at Chandrika Apartment at Abhirampur (Band Road), 2nd Lane, P.O. & Dist. Malda. And the complainant was agreed to engage the OP for the said purpose. The OP quoted prices all the 9 items in a plain paper totaling Rs. 1,78,500/- and 7% discount on it and the said total amount was settled at Rs. 1,66,000/- . The OP also committed to start the work with the payment in advance of Rs., 00,000/- to him and those price was also included transportation, fitting and fixture, supply and installation of modular Kitchen. In good faith, the complainant paid in advance of Rs. 1,00,000/- on 19.02.2016 from his joint S.B. A/C No. 420210100003010 by a cheque No. 27273 dt. 19.02.2016 on Bank of India, Dhatrigram Branch. Thereafter, the complainant put his family with all necessary household goods in a rented house as the OP had stated that the entire carpet area of the Flat is required to be vacated for performing his work. After receiving the said amount of Rs.1, 00,000/- , the OP did not take any initiative to perform the said work. As such the complainant had to incur a huge house rental costs continuously. After 3 months of taking the said advance money, the OP never informed him that the OP is not at all in a position to supply the aforesaid materials. The OP in his written declaration dt. 28.05.2016 understood to supply only the 4 items out of 9 ones by 27.06.2016, failing which he would be bound to refund the said advance money. Ultimately, the OP failed to supply the aforesaid goods of 5 items as per agreement and even the rest 4 items which were subsequently supplied by the OP, were not as per agreed standard quality and size. Most of the supplied goods of the rest four items are not made of wood and those are full of grooves filled with wax or some other materials to hide the flaws, as he had applied Venner or colour over the front portion. The back side of furniture, as such Wardrobe etc. are made of plywood instead of solid wood. The OP did not supply materials for installation of modular Kitchen for which he spent further much more money for the same.
The supplied furniture including fittings, fixture, latches made of low cost used-materials. The complainant further submits that in spite of his repeated requests the OP did not give him money receipt, delivery challan and bills, which indicates his machination to defraud the complainant. By those acts, the OP has committed deficiency in service and unfair trade practice as per provisions of the Consumer Protection Act, 1986.
Upon this background the complainant prays for directing the OP to refund the advance principal amount of Rs.1,00,000/- together with interest @ 18% p.a. and to pay compensation of Rs.3,00,000/- for mental pain , physical harassment and damages for pecuniary loss of Rs.1,00,000/- to the complainant.
The OP has contested the case by filing Written Version denying all the material allegations contending inter alia that the complainant has no cause of action for the case and that the case is not maintainable in its present form and that the case is mala-fide and vexatious and that the case is barred by law of limitation and that the case is barred by mis-joinder of necessary party and that the complainant is not at all a ‘consumer’ and the dispute is not a ‘consumer dispute’ as because there is neither any act of deficiency nor any act of unfair trade practice on the part of the OP.
The specific case of the OP is that he sold the goods to the father of the complainant who has made an order to supply some furniture as mentioned in Annexure D. So, the complainant is not a consumer to the OP. He had never supplied any goods at Malda and the relationship regarding business transactions between the complainant and the OP was very old. The OP received money as mentioned in Annexure B as a value of the furniture which was previously sold by the OP to the father of the complainant. But the new orders as mentioned in Annexure –C was made on 28.05.2016. There is no relationship between Rs.1, 00,000/- and the present order for which the complainant claimed that the OP has caused deficiency in service and unfair trade practice – is totally baseless. The complainant lodged that he has paid Rs.1, 66,000/- which is false and vague statement, the statement of Annexure A is also false and manipulated document. That the complainant falsely stated about 9 items for supply which is also false and baseless. It is further stated by the OP that as per Annexure C dt. 28.05.2016 there was a contract to supply only 4 items, that the OP submits that he had supplied all the standard quality goods as per the requirements of the father of the complainant on specific date of delivery, that the father along with the wife of the complainant came to the shop of the OP to receive the goods/furniture and after checking all the size, colour and materials, the father and wife of the complainant received the furniture. At the time of receiving the furniture the wife of the complainant also gave her written consent that they collected all the goods as per the requirement, so there is no chance of giving below quality of furniture. It is further stated by the OP that this complainant has filed one bill in the name of Apurba Furniture which is marked as Annexure-C of the complaint but there are a number of bills in the name of Apurba Furniture have been duly executed in between the parties of the instant complainant and in between the relatives of the complainant which have not been filed by the complainant in this case. After two month of receiving the goods, legal notice was sent to the OP. After getting that, the OP on several times tried to solve out the problems with the complainant due to old relationship in between them. Even the OP along with his wife went to the house of the complainant at Bhabanipur Dhatrigram, the complainant never intended to co-operate with the OP to solve the dispute and they were driven away from the house of the complainant for the purpose of harassing the OP, the complainant procured concocted story and filed this case before this Ld. Forum which is liable to be dismissed with cost.
The OP has tried to settle the dispute only upon considering the earlier relationship in between the parties of this case in several occasions but the complainant only for the purpose of not to make any outstanding payment has threatened your OP each and every occasion .
Upon this background, the OP prayed for dismissal of the case.
Decision with Reasons.
In order to prove the case, the complainant has adduced evidence-on-affidavit and filed Xerox copies of Annexures of A, B, C & D. The complainant also filed Written Notes of Argument.
The OP only filed Written Notes of Argument but did not file any evidence-on-affidavit but OP filed some Xerox copies of documents.
Perused the evidence-on-affidavit of the complainant, Xerox copies as mentioned in Annexures A, B, C & D in this case on behalf of the complainant and the Written Notes of Argument of both sides. We also perused the Xerox copies of documents filed by the OP. From this oral evidence of the complainant and the Xerox copies of the documents as Annexures A, B & C, it is found that the Rs.1,00,000/0 was paid to the OP by a cheque No. 27273 dt. 19.02.2016 amounting to Rs.1,00,000/- but the Annexure C disclosed that on 28.05.2016 one receipt was given to Kanak Mitra ( Kalyan Mitra) and Kanak Mitra is father of the complainant as it appears from the Cause Title of the complaint and the receipt shows that 1,3 and 4 items were to be supplied on 27.06.2016 on condition to return back the sum but no other document is forthcoming on behalf of the complainant to show that the 9 items were to be supplied at different dates totaling Rs.1,78,500/- which was decided after 7% discount on it totaling Rs.1,66,000/- . The Annexure A could not be given weightage in this case as because there is no signature or agreement in between the consumer and the OP or it was made in the bill given by Apurba Furniture. On the other hand, the Xerox copy of the documents filed by the OP disclosed that some furniture amounting to Rs.72, 000/- has been given to one Kanak Mitra (Kalyan Mitra) and another receipt filed by the OP shows that item Wardrobe, study unit, T.V. Unit and shoe rack were given to Kanak Mitra (Kalyan Mitra) . The complainant did not produce any document i.e. agreement to show that the OP rendered service by installation of modular kitchen about Rs. 72,000/- on 17.05.2015 and 20.06.2016 and other articles as mentioned earlier and at that time the complainant did not raised any question regarding the defects of supplied goods and no other individual opinion regarding defect of goods is forthcoming on behalf of the complainant. Other allegations of misbehavior, driven out from the house, etc. are not under consideration of the D.C.D.R. C within the Consumer Protection Act.
Furthermore, the OP took plea that the present complainant is not a consumer at all as because the goods were ordered by his father, Kanak Mitra and those were supplied to Kanak Mitra and the receipt of Apurba Furniture disclosed that the goods were supplied to Kanak Mistra at Vill. Dhatrigram and Rs. 1, 00,000/- was paid from the joint account of which first person is Kanak Mitra and the second person is Kalyan Mitra i.e. son of Kanak Mitra. The complainant could not produce any receipt to show that he had paid Rs.1, 66,000/- to the OP when huge amount would be paid certainly there would be a receipt to that effect.
In the above scenario, the father of the complainant is the ‘consumer’ but Kanak Mitra who is the consumer of this case, did not lodge the complaint and according to the filed documents, we do not find that Dr. Kalyan Mitra was agreed to purchase the goods or ordered the goods as stated in the complaint but goods were supplied and sold to Kanak Mitra and the amount of Rs.1, 00,000/- was also paid by a cheque from the account of Kanak Mitra. Even this complainant could not produce the Xerox copy of cheque issued by him in favour of the complainant. According to Sec. 2(d) of the Consumer Protection Act, 1986 “Consumer” means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment…………. . does not include a person who obtains such goods for resale or for any commercial purpose” and according to Sec. 2(f) “defect” means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods”.
In the present case, no such ingredients for defect of goods is forthcoming on behalf of the complainant and the present complainant is not a consumer as he has not bought the goods.
Under the above facts and circumstances, we are of opinion that the case must fail.
Hence, it is
ORDERED
That the Consumer Complaint No. 77/2017 be and the same is hereby dismissed on contest against the OP but without any cost.
Let a copy of this order be supplied to the parties on fee of cost.
Dictated & corrected by me.
President
D.C.D.R.C , Purba Bardhaman.
Member Member President
D.C.D.R.C , Purba Bardhaman. D.C.D.R.C, Purba Bardhaman. D.C.D.R.C , Purba Bardhaman.
