Hon'ble Mr. Haradhan Mukhopadhyay, President.
The pith of substance the case of the Complainant is that Complainant submitted one quotation of Generator on rent to the bank of O.P. No.1 Central Bank of India, Dewanhat Branch on the basis of an advertisement. Subsequently, the Complainant obtained the said tender for providing the Generator of Central Bank of India, Dewanhat Branch on certain terms and conditions for 3 years at a rent of Rs.5,600/- per month on 27.03.17. Thereafter the Complainant provided the said Generator to the O.P. No.1 Branch and the same is running. The said Generator hiring is the source of livelihood of the Complainant. Despite running the said Generator the Complainant did not receive any rent since April, 2017 for violation of the terms of the agreement. The Complainant submitted different letters of request to the OP on 08.06.17 and 28.06.17 to increase the rent of the Generator but to no effect. The Complainant purchased the said Generator with huge money of Rs. 3 Lakhs due to which she suffered loss for not getting rent from the OP for violation of the agreement. The Complainant also met with the OP bank but to no effect. Having found no alternative the Complainant served a legal notice to the OP on 23.11.17 through her Advocate. Despite receiving the notice on 24.11.17 the OP replied but did not take any positive step for redressal of grievance of the Complainant. Thereby the OP has caused unfair trade practices due to which the Complainant suffered mental pain, agony and harassment. The Complainant therefore prayed for direction upon the OP to pay the rent, Rs.50,000/- for deficiency in service and unfair trade practice, Rs.15,000/- towards cost of the proceedings and any other relief as she is entitled.
The O.P. No.1 & 2 contested the case by filing written version denying each and every allegation. The basic defence case in a few words is that the O.P. No.1 sent one letter for approval of Generator set in the bank premises of the O.P. No.1 and thereafter the O.P. No.2 sent one approval being letter No. WB/COOC/DEWANH/40 dated 24.01.17 regarding approval for hiring Generator which was conditional and the Complainant failed to comply with the terms and conditions. The Complainant did not provide any Generator set with O.P. No.1 but she placed one Generator at the Varandha of the bank premises of the O.P. No.1 under lock and key which is illegal in the eye of law. As per the letter bearing No.RO/COB/GAD/2016-17/252 dated 27.03.17 the points No.7 is relevant wherefrom it transpires that fuel, labour charges and shed must be provided by the Complainant but the Complainant placed her Generator set at the Varandha of the OP bank premises under lock and key which is purely illegal. Since the terms and conditions were not fulfilled so no such agreement was executed between the parties. Since the Generator service provider did not provide the Generator facility to the branch, so question of payment of Generator bill does not arise. The Complainant is not providing the required service since 01.04.17 without any prior notice, so it represents that the said service is discontinued since 01.04.17. The O.P. No.1 replied to the Lawyers notice of the Complainant. The OP claimed that the complaint petition is liable to be dismissed with cost.
The conflicting pleadings of both the parties demand for determination of the following points.
Points for determination
- Whether the Complainant is a consumer under the CP Act?
- Whether the Complainant is entitled to get the relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
Point No.1.
The Complainant Smt. Chaity Sarkar Bhowmik claimed herself as a consumer on the ground that she supplied Generator to the OP bank in terms of an agreement dated 01.04.17 at a monthly rental Rs.5,600/-. Although the O.P. No.1 pleaded in defence that the case does not fall within the perview of the CP Act yet there in no specific denial that the Complainant is not a consumer. However after perusing the pleadings of the parties and the different documents filed by the Complainant it is reasonably held that the Complainant is a consumer under the CP Act.
So point No.1 is answered positively in favour of the Complainant.
Point No.2 & 3.
Both these points No.2 & 3 are taken up together for convenience and brevity of discussions.
These points relate to ascertainment as to whether the Complainant is entitled to get the relief claimed or any other relief in the instant case.
After perusing the pleadings of the parties it transpires that the Complainant pleaded that despite supplying the Generator to the OP bank they did not pay the monthly rent to the extent of Rs.5,600/- per month from April, 2017.
The OP denied that the Complainant provided any Generator to the bank for its services.
Let us scrutiny and assess the documentary evidence of the Complainant to ascertain whether there was any argument between the parties and consequently any Generator was provided by the Complainant to the OP or not.
The best evidence in this regard is the agreement between the parties. It is the admitted position that O.P. No.1 sent one letter regarding approval for Generator set in the bank premises of O.P. No.1 and thereafter the O.P. No.2 sent one approval letter being No. WB/COOC/DEWANH/40 dated 14.01.17 regarding approval for hiring of Generator.
The OP however took the plea that the said supply of Generator was conditional and the Complainant failed to comply with the terms and conditions and did not supply any Generator set to the O.P. No.1 bank.
It is important to consider that the OP did not specify as to which terms and conditions of the agreement was violated by the Complainant. On the contrary they again admitted in their written version that the Complainant placed one Generator at the Varandha of the bank premises under lock and key which is illegal in the eye of law.
It is the argument on behalf of the OP that the bank runs under fully computerised system. Now question arises if the said Generator did not run then how could the banking function used to be done in case of load shading or power cut.
Ld. Defence counsel argued that the bank has independent UPS system by which bank used to function. But the O.Ps did not file or prove any documents to show that the bank used to function with UPS system or any other Generator during load shading or power cut.
The OP defended the claim of the Complainant on another ground that the Complainant did not provide the required services since 01.04.17 without any prior notice.
The main dispute period under which the Complainant claimed the arrear rent is April, 2017. The OP categorically denied that the Complainant did not provide service of the Generator since 01.04.17. It is fact that if a Generator runs, it requires some fuel.
In the instant case the Complainant could not file any relevant documents regarding purchase of fuel or engagement of an individual to run the Generator. No independent witnesses deposed in this case on behalf of the Complainant to establish that the Generator actually ran or functioned during the disputed period i.e. 01.04.17 onwards.
The relevant disputed period relates to 01.04.17 onwards. The Complainant filed the original document of agreement between the OP bank and the Complainant dated 06.05.08 but no agreement for the relevant period dated 27.03.17 onwards filed. The Complainant further filed an agreement dated 24.04.13 which was valid for 3 years i.e. up to 2016. This agreement also is not relevant to the present case or the relevant period.
The document filed by the Complainant dated 11.01.18 reveals that the agreement between the parties was cancelled by the OP bank on the ground that they were not getting any Generator.
Another document being letter replied to the notice by the bank to the Ld. Advocate for the Complainant on the ground that the Complainant Chaity Sarkar Bhowmik had kept her Generator room under lock and key. Point No.4 of the said letter discloses that the party has not agreed to provide Generator facility to the branch and not executed any agreement with the branch for providing Generator facility since 01.04.17. Accordingly the service was disconnected.
It is fact that the Complainant previously used to supply Generator services to the OP bank for a long time. But there is no document to show that the Complainant had executed any new agreement for supplying quotation during the relevant period. However admitted fact need not to proved is the well settled principle of law. The OP appears to have admitted in their W/V that the O.P. No.1 sent one letter regarding approval for Generator set and thereafter O.P. No.2 sent one approval letter on 24.01.17 for hiring Generator but the Complainant placed one Generator at the Varandha of bank premises of the O.P. No.1 under lock and key.
It is also the defence plea that as per letter of the OP dated 27.03.17 fuel, labour charges and set must be provided by the Complainant.
Ld. Defence Counsel argued that since the Complainant kept the Generator under lock and key so it was not possible for the OP to get service of the Generator.
The most important document filed by the OP bank Annexure-C discloses that the Complainant requested the OP to increase the Generator fare. If the bank did not show any sympathy she would not be able to continue her service any longer. It means that the Complainant prayed for increasing the Generator fare. But the Complainant could not prove any document to show that the Generator fare was enhanced at any time.
Again by a letter dated 28.06.17 the Complainant stated that the generator was fixed at a fare of Rs.5,600/-. But it is not possible on her part to supply the Generator by this amount. So she requested to increase 34% of the said amount to the tune of Rs.7,504/-.
There is no document to show that the OP bank enhanced the said rent of Rs.5,600/-. Therefore since the Complainant had already gave an ultimatum that if the said rate of fare of Rs.5,600/- is not enhanced then it would not be possible here to continue the services. So the agreement appears to have not been executed.
This document goes against the case of the Complainant and it supports the defence plea that the Complainant discontinued service despite placing the Generator within the bank premises.
Thus after going through the pleadings of both the parties and assessing the evidence available in the case record it is clearly established and evident that the Complainant placed Generator within the premises of the bank but the rent of the Generator was not sufficient to the Complainant for which she could not provide service of the said Generator to the OP bank during the disputed period.
Thus after assessing the entire evidence in the case record and in view of the discussion made herein above the Commission comes to the findings that the Complainant failed to establish the case up to the hilt.
Consequently the complaint case fails.
Hence, it is
Ordered
That the case No. CC/12/2018 be and the same is dismissed on contest without cost.
Let plain copy of this order be supplied to the parties concerned by hand/by post forthwith, free of cost for information and necessary action, if any.
The copy of the Final Order be also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
