Ld Advocate for the complainant is present. Judgement is delivered in open Commission in 2 seperate sheet of papers. 

BY -    SMT. KABITA ACHERJEE (GOSWAMI)      MEMBER  

         The case has been filed by the Complainant Aswini Kumar Giri son of Late Dhanonjoy Giri Vill.- Basudevpur, P.O. Khanjanchak, P.S.-Durgachak, Dist. Purba Medinipur. Pin-721602. Ph. 9232715700 on 03.11.2020 U/S  35 of the C P Act 2019 against Op No-1 Manager Western Refrigeration P.V.T. L.T.D. Ball House Kolkata 700019 O.P. NO.-2 Head Office of W.R.P.L. & B Pannalal Silk Mils compound Mumbai 400078 and Op No-3 Prabir Sarkar Sales Executive of W.R.P.L. Ball House Kolkata-700019.

          The facts of the case to put in a nutshell as below:

          The complainant is an owner having its counter at Basudevpur under Durgachak P.S. which is the Jurisdiction of this commission. The complainant runs the shop to maintain his livelihood. The Op No-1 is the branch of OP No.2 and run the company at Kolkata and Op No-3 is the agent of Op No-1. The Op No-3 calls the people for the promotion or offer to sell the goods like .Op No3 called upon the complainant over telephone and offer him to purchase various popular refrigerators of the company for the development of ice shop of complainant. At this  the complainant agreed to purchase five (5) refrigerators of different specification along with trolley for extending business of the complainant. On 14.01.2020 O.P. No.3 the sales executive namely Prabir Sarkar came to his shop and received Rs. 1,58,000/- with money receipt for supply of the above mentioned five freeze and promised to deliver these freeze within 7 weeks from the date. It is required to mention that unfortunately the demand notice sent by Ld. Advocate the date is wrongly mentioned on 14.01.2002 instead of 14.01.2020. After passing of one week the complainant made several phone call to Op No.3 and he informed the complainant it would be delivered soon. The complainant was shocked when he found only one freeze amounting of Rs. 28,500/- was sent by O.P. No.1 through transport on 05.03.2020. O.P. No.3 along with O.P. no.2 arranged a meeting with the complainant at Ball House of Western Refrigeration Pvt. Ltd. On 16.03.2020 and assured the complainant that O.P. No.1 will deliver due items within seven days but till date all O.P’s willfully did not supply purchased items intentionally or intend to practice fraud with the complainant. The Complainant made repeated phone calls to O.P’s with request to deliver purchased items for which the complainant already paid whole amount to the O.P No.1 and O.P. No.1 had given proper money receipt for acknowledgment but O.P_’s did not take any effective steps for delivery of due items. The complainant failed to get purchased items from O.P. No.1, Complainant sent a legal notice by registered post through Ld. Advocate namely krisanu Diskhit on 22.07.2020 and the notice was received by the O.P. No.1 on 31.07.2020 but till today O.Ps did not supply purchased items nor returned received money or did not give any satisfactory answer for non delivery. Having no other alternative the complainant has come to the commission for proper relief.

      After receiving of the notice Op No1,2 & 3 appeared before the Commission and filed W.V on behalf of Op No.1 & 2 vide order No. 06 dt. 05.03.2021 but Op No 03 has not filed W.V. ,hence  the case runs ex-parte  against  the O.P No.-3 vide order No.13 dt. 25.08.2021.

Points for determination are:

1. Is the case maintainable in its present form and in law?                                              2.   Is the Complainant entitled to the relief(s) as sought for?

Decision with reasons

Both the points, being inter related to each other, are taken up together for discussion  for sake of brevity and  convenience.

     We have gone through the materials on record. Evidently the complainant had agreed to purchased Five refrigerator from the O.P No.3 who  is the agent of the O.P. No.1 and O.P. No.3 received the money amounting to Rs. 1,58,000/- with money receipt for supply of the above mentioned  5 freeze.  So, the complainant is a consumer U/S 2 (7) of C P Act 2019. Hence,  the case maintainable in its present form and in law.

      The complainant Aswini Kumar Giri in his complainant and evidence stated that on 14.01.2020 OP No.3, the sales executive Prabir Sarkar came to his shop and received Rs. 1,58,000/- with money receipt for supply of the five freeze i.e. within 3 are 125 Ltr. each and 1 is 225 ltr  and another is 525 Ltr. Deep freeze along with trolley for extending business of the complainant and promised to deliver three freeze within 7 weeks from the date. It is fact that Op No.3 has issued cash memo in this regard. Original cash memo dt. 22.09.2022 has been filed by the complainant. Ultimately, the said freeze were not delivered..

       The Complainant received one refrigerator from one  shop/ Transporter/logistic concern namely Jazz Corner at 1275, Nayabad Main Road, Kol-99 and the said Jazz Corner Issued one money receipt of Rs. 28,500/- on 05.03.2020 with signature and seal. We do not find any connection in between ops and the said Jazz Corner. The Jazzs Corner Nayabd  has not been made as party in this case. The complaint is silent about Jazz Corner. Had Jazz Corner been made party in this case the truth could come out.  The complainant has not filed any cash memo, or invoice with bill no. and date issued by ops 1 & 2. The complainant has failed to substantiate the allegations made in the complaint.

        Both the points are decided  accordingly.

       The complaint case fails.

Hence, it is

O R D E R E D

That CC/223 of 2020 be and the same is dismissed on contest against ops 1 & 2. No order of cost is passed.

Let copy of the judgment be supplied to the complainant and ops 1 & 2 free of cost.