Date of Filing : 01/10/2020

Date of Judgement : 27/01/2023

Mrs. Sashi Kala Basu, Hon’ble President

This Complaint was filed originally by Bistupada Mondal (since deceased and his legal heirs being substituted namely 1. A Malati Mondal 1.B Binay Mondal and 1.C Biswajit Mondal) Under Section 35 (1) of the Consumer Protection Act 2019 against the Opposite Parties ( referred as ops hereinafter) namely 1. SWAPNA PURAN 2. Chakraborty Engineering Works and 3. Pintu Chakraborty allaging deficiency in rendering service on the part of Opposite Parties.

Case of the Complaint in short is that being allured on seeing an advertisement published on 18/12/2019 in the daily newspaper Anandabazar Patrika , he contacted the Opposite Parties to purchase papercup fully automatic machine with a paper plate double dice machine from the Opposite Parties to manufacture paper cup and plate to meet his and his family members day to day livelihood. On visit to the office of OPs, P. Mondal , the authorized representative of OP 1 advised the Complainant that their manufacture unit is OP No 2 and thus asked him to make all payments in the name of  OP No 2. So the Complainant paid a total sum of Rs 8,50,000/- towards the consideration price of two machines. As per the terms and condition of the invoice dated 29.11.2019, OPs were liable to deliver paper cup fully automatic machine with a paper plate double dice machine within 90 days from the date of payment in advance. The advance payment of Rs 3,50,000/-was paid through cheque on 05.11.2019 and ultimately the entire payment has also been made. But inspite of the receipt of the said payment of Rs 8,50,000/- OPs failed to deliver the machine.

So the Complainant asked for refund of the entire consideration price of Rs 8,50,000/- but as the OPs neither delivered the machine as per the terms of invoice nor money has been refunded, the present Complaint has been filed praying for directing the OPs to refund the entire consideration amount, to pay compensation of Rs 2,00,000/- and litigation cost of Rs 50,000/-.

On perusal of the records it appears that notice was sent but inspite of its service, no step has been taken by the OPs, neither any written version has been filed. So the case proceeded ex-parte against the OPs.

The only point require determination is whether the Complainant is entitled to the relief as prayed for.

Decision with Reason

            In order to substantiate their claim that their predecessors-in-interest namely Bistupada Mondal purchased two machines i.e. paper cup fully automatic machine with a paper plate double dice machine from the OPs, Complainants have filed the invoice dated 05.11.2019 wherefrom it appears that Bistupada Mondal (since deceased) paid Rs 1,75,000/- each for two machines and thus advance of Rs 3,50,000/- was paid in total through cheque on 05.11.2019. It further appears that further amount of Rs 3.90,000/- was been paid on 26.11.2019. The invoice of payment of such amount of Rs 3,90,000/- is also filed. Both these documents show that the amount was paid to the OP No 1. Complainant has also filed an invoice dated 29.11.2019 indicating payment of further amount of Rs 1,10,000/- to Op No 2. It is the specific claim of the Complainant that OP No 2 is a manufacturing Unit of OP No 1 and OP No 3 is the proprietor . So these documents suggest that a total sum of Rs 8,50,000/- towards the consideration price of the two machines has already been paid to the OPs. The Complainants have also filed the passbook of the Bank Account showing such payments. The claim of the Complainants  that they have neither been delivered the machine as agreed nor the amount paid by the original Complainant has been refunded is further established from a document dated 27.12.2019 which has been issued on behalf of OP No 1 wherein it has been admitted that machines were not delivered to the Complainant and by the said documents/written commitment the Complainant was assured by the OP that they would deliver the machine by 04.01.2020. According to the Complainant in spite of such assurance in the said written commitments, the machines were not delivered. Since before this Commission there is absolutely no contrary material to counter or rebut the claim of the Complainant, Complainants are entitled to the refund of sum as prayed by them especially when in the said written commitment dated 27.12.2019 there is no mention that machines were not delivered due to any amount towards the consideration price was due to be paid by the Complainant. Further Complainants are also entitled to compensation in the form of interest for harassment.

Hence

            Ordered

CC/224/2020 is allowed ex-parte. OPs are jointly and / or severally directed to refund the entire consideration price of Rs 8,50,000/- to the Complainants along with interest on the said sum @ 10% per annum  from the date of first payment i.e. 05.11.2019 to till this date within 60 days from the date of this order. OPs are further directed to pay litigation cost of Rs 10,000/- within the aforesaid period of 60 days. In default of payment the entire sum shall carry interest @ 10% p.a. till its realization.