This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OP as the OP did not bother to deliver the new refrigerator (Godrej) EON 290 3.4 (Red Petal) to the Complainant till filing of this complaint.

The brief fact of the case of the Complainant is that being convinced and satisfied with the advertisement given by the OP through Newspaper, Electronic Media as well as several Hoardings he decided to purchase one refrigerator from the OP. For this purpose he visited the showroom of the OP along with his family member and chose one refrigerator i.e. Godrej Eon 3.4 (Red Petal) model no-290. The cost of the said refrigerator was scheduled for Rs.25,000/-. Accordingly the Complainant purchased the questioned refrigerator by making payment of entire consideration amount through bank transaction. The OP issued an invoice to that effect being no- 0146 dated. 30.06.2017 as full and final consideration. The OP had duly received the said amount with an assurance for delivery of the said refrigerator within one or two days. But it is surprising that inspite of receipt of entire consideration the OP did not bother to deliver the same at the residence of the Complainant. Being compelled the Complainant went to the showroom of the OP and enquired the entire matter and at that point of time also the OP had assured the Complainant to deliver the said refrigerator as early as possible. Unfortunately inspite of repeated assurances till filing of this complaint the OP had failed and neglected to deliver the said refrigerator without assigning any cogent reason. Being dissatisfied with such action of OP the Complainant lodged a complaint before the Assistant Director, CA& FBP, 24Parganas (North) stating the entire facts and enclosing the relevant documents. But inspite of receipt of summon the OP did not turn up before the office of the CA &FBP and ultimately the matter was dropped and the Complainant was directedby the office of the CA & FBP to lodge a complaint before the Ld. DCDRF, Barasat. Thereafter the Complainant approached before the Ld. DCDRF, Barasat by filing this complaint. It is pertinent to mention that before initiation of this complaint he sent a letter to the OP dated 05.08.2017 requesting to deliver the questioned refrigerator at once, but unfortunately the OP did not bother to reply the said letter, which is a glaring example of unfair trade practice on behalf of the OP. As the OP after receipt of the entire consideration amount for the said refrigerator did not deliver the same till filing of this complaint, the Complainant is suffering from mental agony, harassment, pecuniary loss for a prolonged period. As the grievance of the Complainant had not been redressed by the OP, having no other alternative the Complainant has approached before the Ld. DCDRF, Barasat by filing this complaint praying for direction upon the OP to deliver the questioned refrigerator as per the specification mentioned herein above along with compensation for Rs. 50,000/- due mental agony pain and unnecessary harassment and anxiety and litigation cost of Rs,15,000/-.

The OP had contested the petition of complaint by filing written version contending that the complaint is not maintainable in law since the Complainant has not incorporated Great Eastern Trading Company as a party to this case and only the Manager of the Company has been incorporated as a party in the present proceeding. Therefore, the complaint is defective in nature for which the complaint is liable to be dismissed in limini with exemplary cost. It is stated by the OP that the Complainant visited the showroom of the OP on 30.06.2017 and after thorough searching about the features, price, specifications etc. of various brands of refrigerator decided to purchase the subject refrigerator for an amount of Rs.25,000/- after being satisfied. At that point of time it was explained by the OP to the Complainant that after getting supply of the subject refrigerator from the Manufacturer the showroom of the OP can deliver the said item to the Complainant. It was stated by the OP that if the Complainant had urgent need in that case he was at liberty to choose any other model available in the showroom. But the Complainant was very much adamant over the issue and told the OP that he will not purchase any other model of the refrigerator. Though the amount was received from the Complainant, no date of delivery was mentioned in the money receipt. No invoice was issued by the OP to the Complainant since the subject product was not in the stock of the OP. After receiving of the booking of the refrigerator the OP remitted the same to the Manufacturer to supply the subject refrigerator. After getting supply of the subject refrigerator the OP intimated the Complainant for delivery of the said item on 04.08.2017, but the Complainant refused to accept the delivery of the refrigerator from the OP and demanded huge amount of compensation from the OP for delay in delivery. The OP wasnot in a position to pay any compensation amount to the Complainant since there was no deficiency in service on the part of the OP and the OP had acted in accordance with its promise to deliver as and when the same will be delivered by the Manufacturer. In the meantime the Complainant with a view to realize huge amount of compensation from this OP started to prepare the papers for taking legal action against the OP and issued a letter dated 05.08.2017 demanding delivery of the refrigerator. Upon receipt of the said letter the OP again contacted with the Complainant with an intension to deliver the refrigerator to him but at that time also the Complainant demanded compensation to the tune of Rs. 50,000/- from the OP. Thereafter on various occasion the OP requested the Complainant to take delivery of the refrigerator but on each and every time the Complainant refused to take delivery of the refrigerator and asked compensation amount from this OP. Thereafter the OP offered the Complainant to refund the money so deposited by him but he also refused to get return of the amount from the OP. As such the OP having noother alternative issued a letter to the Complainant with a request either to accept the delivery of the refrigerator or to get refund the price paid by the Complainant. But the Complainant refused to accept the said letter and the same was returned back to the OP with the postal remark as ‘Refused’. Therefore, it is crystal clear that there is no deficiency in service on the part of the OP. It is further stated by the OP that with a view to harass this OP the Complainant has filed this complaint to grab more money with an ulterior motive and in an unscrupulous manner. According to the OP the complaint is liable to be dismissed with exemplary cost.

The Complainant has adduced evidence on Affidavit. Scope was given to the OP for filing Questionnaire on 10.01.2019. But on that date by filing an application the OP had expressed that he will not file any Questionnaire. Accordingly date was fixed for adducing evidence by the OP on 10.04.2019. On 10.04.2019 OP filed a petition praying for adoption of the written version as his evidence. Upon considering the said application the prayer was allowed. Accordingly date was fixed on 18.06.2019 for argument, BNA, if any be filed in the meantime.

After establishment of the Ld. Additional CDRF Rajarhat (New Town) the case record has been transferred form the Ld. DCDRF, Barasat to this Ld. Additional CDRF as per the order passed by the Hon’ble SCDRC. The Hon’ble SCDRC was pleased to fix the next date for appearance of the parties on 27.01.2020. On 27.01.2020 Ld. Advocates for the parties were present respectively. As the case record was transferred at the stage of argument from Ld. DCDRF, Barasat to this Ld. Forum with the concurrence of the Hon’ble SCDRC, hence this Ld. Forum (Ld. Commission as amended) was pleased to fix this complaint for argument as well as filing BNA. On 27.02.2020 argument was advanced in part by the Complainant as well as the OP. For further argument date was fixed on 13.03.2020. On 13.03.2020 Ld. Counsel for the OP was present. None was present on behalf of the Complainant. On 27.02.2020 with the interference of this Ld. Commission the parties were ready to settle the dispute amicably. For this reason the OP was directed by this Ld. Commission to return the price as paid by the Complainant to the tune of Rs.25,000/- along with an interest @ 10% p.a. for the periodfrom 30.06.2017 till realization. Accordingly on 13.03.2020 the Ld. Counsel for the OP submitted a demand draft amounting to Rs.34,247/- includes interest @ 10% p.a. for the period of 2 years 8 months and 15 days = 1350days. The interest component has been assessed for the period from 30.06.2017 to 15.03.2020 to the tune of Rs.9,246.57/-. The Ld. Counsel for the OP had submitted the demand draft drawn on Axis Bank Ltd. being no-022247 dated 04.03.2020 in the name of the Complainant. As none was present on behalf of the Complainant. The Demand draft is remitted to the Registrar-in-Charge of this Ld. Commission. On 13.03.2020 as the Complainant was not present we were not in a position to dispose of this matter inspite of filing an application on behalf of the OP praying for disposal of this complaint. In the interest of Natural Justice we were of the view that as the complaint was initiated by the Complainant, until and unless he is satisfied with the instant amount the matter cannot be disposed of by way of amicable settlement. For this reason next date was given on 20.03.2020 for further order. On 20.03.2020 in view of Resolution adopted by the District Bar Association of this District on 16.03.2020 and in view of the letter dated 16.03.2020 of Consumer Court Bar Association having Office at Kreta Suraksha Bhaban and also in view of the Resolution adopted on 16.03.2020 by the Bar Council West Bengal, the Ld. Advocates could not appear before the Courts/Forums/Commissions due to severe outbreak of Corona Virus and for this reason next date was fixed on 20.04.2020 for further order.

Since 20.04.2020 this record could not be placed before the Ld. Bench of this Ld. Commission due to Lockdown declared by the Government of India as well as Government of West Bengal on account of severe out breaking of Corona Virus, accordingly on 05.10.2020 this record was placed before the Ld. Bench of this Ld. Commission for passing necessary order.

 The Ld. Counsel for the OP is present by filing hazira. None is present on behalf of the Complainant. Record reveals that argument was completed before Lockdown and the same was advanced by the Ld. Counsel for the both parties respectively. We have carefully perused the entire records, documents as available. It is seen by us that admittedly being intended to purchase one refrigerator for domestic purpose the Complainant approached at the showroom of the OP and chose the model of Godrej Refrigerator (EON 290 3.4 Red Petal) on 30.06.2017. The total price of the refrigerator was scheduled at Rs.25,000/-. The Complainant paid the entire consideration amount of Rs.25,000/- to the OP. Upon receipt of the said amount the OP had issued an invoice in favour of the Complainant. It is an admitted fact that the OP did not deliver the subject refrigerator to the Complainant till filing of this complaint inspite of receipt of the entireconsideration money. It is the case of the OP that the model which the Complainant chose, the same was not readily available with the OP at that point of time. The subject model was delivered to the OP by the Manufacturer subsequently. As and when the OP got the supply, approached to the Complainant for taking delivery of the same, but the Complainant refused to take delivery of the subject refrigerator at a belated stage. Then the OP offered to return back the paid amount of Rs.25,000/- to the Complainant, the Complainant also refused to take back the same and claimed for a compensation which the OP did not allow. The case of the Complainant is that as he did not get delivery of the refrigeratoraccording to his need, he is not interested to get delivery of the subject refrigerator at a belated stage and he is interested to get return of the paid amount along with adequate compensation from the OP  to the tune of Rs.50,000/-.

Upon considering the contention of both the parties we are of the view that the amount of Rs.25,000/- was under the custody of the OP till 12.03.2020 from the date of making payment i.e. 30.06.2017, for this reason at the time of return back of the said amount OP is liable to pay interest over the said amount. It is mentioned earlier that the OP was directed to return the paid amount along with an interest @10% p.a. from the date of making payment till realization, which in our view will meet Justice.In presence of both parties this Ld. Commission tried to settle the dispute. Both parties gave consent orally to this proposal and accordingly the OP submitted one bank draft drawn on Axis Bank Ltd. for an amount of Rs.34,247/-. The said bank draft is still lying with the office of this Ld. Commission. In our view that as the OP did not deliver the subject refrigerator to the Complainantinspite of receipt of the entire consideration money, OP is under the obligation to return back the said amount along with an interest 10% p.a. on the said amount. Upon calculation it is seen by us that OP had paid an extra amount of Rs.2,500/- going beyond the required amount along with interest at the rate of 10% p.a. We are of the view that the OP is not entitled to get return the extra amount of Rs.2,500/-. The said amount is to be treated as litigation cost as the complainant had to incur some expenses for this proceeding.

Though the Complainant has claimed for compensation, but there are several Rulings/Judgments passed by the Upper Courts/Commission wherein it has been held that where interest is imposed on the consideration amount, compensation cannot be allowed as the interest be imposed in the form of compensation. For this reason we are not inclined to impose further compensation on the shoulder of the OP.

Going by the foregoing discussion hence, it is ordered that the Consumer Complaint being no-RBT/CC/27/2020 is hereby allowed on contest with cost. As the demand draft submitted by the OP is still lying with the Registrar-in-Charge of this Ld. Commission and the same has already been expired, the OP is directed to revalidate the same within 30 days from the date of passing of this judgment. In this respect the OP shall file an application to the competent Authority of this Ld. Commission praying for handing over the said invalid demand draft for revalidation. After revalidation of the said demand draft to the tune of Rs.34,247/- the OP shal again submit the same before the competent Authority from whom it was collected for revalidation. The Complainant will be entitled to withdraw the saiddemand draft from the office of this Ld. Commission after submitting proper identity and application. Be it mentioned that the said amount is carrying the cost of the subject refrigerator, interest @ 10% and litigation cost.

Let a plain copy of this judgment be given to the parties free of cost as per the Consumer Protection Regulation.

Dictated and corrected by

Hon’ble Mrs. Silpi Majumder