BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

O.P. No. 470/2002

Dated: 15..05..2010

Complainant:

Saira Beevi, Kakkottukuzhi House, Chullimanoor – P.O., Anadu Village, Nedumangad.

(By Advs. A. Uvais Khan & M. Fathahudeen)

Opposite parties:

1. The Managing Director, National Machines and Employment Consultants Pvt. Ltd., P H Ward, A.S Road, Alappuzha.

   (By Adv. Jaideep G. Nair)

2. The Palode Co-operative Agricultural and Rural Development and Land Mortgage Bank. Represented by its Secretary, Palode – P.O., Nedumangad Taluk.

   (J. Gopalakrishnan Nair)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 02..06..2005, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 27..02..2010, the Forum on 15..05..2010 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, complainant approached the 1^st opposite party, the Managing Director, National Machines and Employment Consultants Pvt. Ltd., Alappuzha, on 26/11/2001 and obtained a quotation for machineries related to Flour Mill and Oil Mill for a total sum of Rs.1,39,378.60, that 1^st opposite party received an amount of Rs. 60,000/- towards advance amount from the complainant by way of cheque dated 5/12/01 and issued a payment receipt on the same date itself to the complainant; that the balance amount was agreed to be paid against the delivery of the said machineries contained in the quotation, that 1^st opposite party has not taken any steps to effect the delivery of the supply of agreed machineries inspite of repeated requests made by the complainant, that complainant had incurred an amount of Rs. One lakh for starting the said oil mill and flour mill and she had constructed a building for the same and also applied to Electricity Board for getting the Electric connection in the said building, that it is due to the irresponsibilities of the opposite parties the complainant is also deprived of from obtaining the grant of 30% grant sanctioned by the Khadi and Village Industries Board. Complainant was served with a notice from the 2^nd opposite party bank demanding to pay a sum of Rs. 5,540/- towards interest for the advance amount of Rs.60,000/-, that thereupon complainant sent a Lawyer's notice to 1^st opposite party demanding them to refund the advance amount with interest and Rs. 50,000/- towards compensation.

2. 1^st opposite party filed objection contending that complainant had obtained a quotation for machines for commercial purpose and that the quotation of prices are ex-godown , that there was no assurance that the goods would be supplied on site, that it is agreed at the time of receipt of the advance as well as at the time of quotation that the goods would be supplied at the godown of the 1^st opposite party at Alappuzha only on payment of the balance amount, that complainant was asked to remit the balance amount by way of letter dated 12/01/2002 and make arrangements for collection of the machinery, complainant did not furnish any reply. 1^st opposite party's liability is limited to supply the machineries on the payment of the balance amount, that the 1^st opposite party is still willing to do so, if the increase in the value is also compensated. The relation between and the agreement between the 2^nd opposite party and the complainant are not known to the 1^st opposite party. 1^st opposite party is willing to refund the amount collected as advance after deducting Rs.10,000/- as expenses incurred in ordering, transporting and storing such goods, that the 1^st opposite party has not committed any deficiency in service and 1^st opposite party prayed for dismissal of the complaint.

3. 2^nd opposite party filed version contending inter alia that at the request of the complainant 2^nd opposite party placed supply order dated 5/12/2001 with the 1^st opposite party for supply of the machinery, that along with the order, Rs. 60,000/- was paid by DD and assured the balance amount of Rs. 63,000/- will be paid on supply of machinery, that the 1^st opposite party received the said advance without any objection, that on receipt of the complaint from the complainant that 2^nd opposite party had not supplied the machine, the 2^nd oppostie party issued notice to 1^st opposite party to either supply of machinery ordered and receive the balance amount of Rs.63,000/- or return the advance amount of Rs. 60,000/-, that the 2^nd opposite party cannot afford to loose this loan amount. 2^nd opposite party has no right to proceed against the 1^st opposite party on behalf of the complainant. Hence 2^nd opposite party prayed for dismissal of the complaint.

3.The points that arise for consideration are:

1. Whether there is deficiency in service on the part of opposite parties?

    

2. Whether the complainant is entitled for refund of advanced amount of Rs. 60,000/- with interest thereon from the 1^st opposite party?

    

3. Whether the complainant is entitled to compensation?

In support of the complaint, complainant has filed an affidavit of herself as PW1 in lieu of examination in chief and has marked Exts. P1 to P13. In rebuttal, 1^st opposite party has filed affidavit and has marked Exts. D1 to D6. 2^nd opposite party has not filed affidavit in lieu of chief examination.

4. Points (i) to (iii): Admittedly, complainant approached the 1^st opposite party on 26/11/01 and obtained a quotation from them for machineries related to Flour Mill and Oil Mill for a total sum of Rs.1,39,378.60 and 1^st opposite party received an amount of Rs. 60,000/- towards advance amount from the complainant by way of cheque bearing No. 097964 dated 5/12/01 and 1^st opposite party issued a payment receipt on the same date itself. Ext. P1 is the quotation dated 26/11/01, 9 items are mentioned in the said quotation for a total sum of Rs. 1,39,378.60. As per Ext. P1 the items mentioned therein are guaranteed for 12 months from the date of supply against any manufacturing defects; price quoted are: Ex–Godown, Alappuzha; payment: 100% of the value in Advance with order; As regards delivery, it is seen stated in Ext. P1 that, from ready stock subject to prior sale or in about four/eight weeks after receipt of order subject to unforeseen circumstances; As regards validity, the prices mentioned in Ext. P1 are likely to change and prices ruling at the time of supply will be charged extra. Ext. P2 is the copy of the loan sanction order issued by the 2^nd opposite party, the Kerala State Co-operative Agricultural and Rural Development Bank Ltd. As per Ext. P2, an amount of Rs. 2,00,000/- is seen sanctioned on 28/6/01 to the loanee Saira Beevi. Ext. P3 is the copy of the loan application. Ext. P4 is the copy of the letter from the Project Officer, District Khadi & Village Industries Office to the 2^nd opposite party requesting him to intimate details of loan sanctioned with approved project cost in detail. Ext. P5 is the copy of the receipt for Rs.60,000/- by way of cheque dated 5/12/01 issued by 1^st opposite party. As per Ext. P5, the said cheque is seen received from the 2^nd opposite party. Ext. P6 is the copy of the letter dated 4/02 addressed to 2^nd opposite party by the complainant wherein it is revealed that she has not received any communication from the 1^st opposite party regarding the supply of the aforesaid machineries, as such she has not been able to remit the interest on Rs. 60,000/- to 2^nd opposite party. Ext. P7 is the copy of the advocate notice dated 25/7/02 addressed to the 1^st opposite party by the complainant. Ext. P8 is the reply dated 17/8/02 to Ext. P7 issued by the 1^st opposite party. A perusal of Ext. P8 reply would reveal that though 1^st opposite party had already issued a registered notice to the complainant informing her about the machineries as per quotation are ready to be delivered, she had not approached the 1^st opposite party with balance payment to take deliver of the same. Ext. P10 is the copy of the notice dated 3/6/03 from the 2^nd opposite party to complainant informing her of an amount of Rs. 14,441/- is due from her to the bank; Ext. P12 is the copy of the letter dated 12/1/02 from the 1^st opposite party to the complainant informing her that all the machineries as per quotation (Ext.P1) will be ready within a short span of time and she was requested to remit the balance amount at 1^st opposite party's Office to proceed further in this matter. Ext. P13 is the quotation dated 26/11/01 for items mentioned in Ext. P1 for Rs.1,23,233.60. A perusal of Exts. P1 & P13 would show no difference except the quoted amount. It is argued by the learned counsel appearing on behalf of the 1^st opposite party that it was specified at the time of receipt of the advance as well as at the time of the quotation that the goods as per quotation would be supplied at the go-down of the 1^st opposite party, that 1^st opposite party sent letter dated 12/1/02 by Ext. P12 by which complainant was asked to remit the balance amount and make arrangement for collection of the machinery, that no reply or response was furnished by the complainant to Ext. P12. It is further argued by 1^st opposite party that the 1^st opposite party has only agreed to supply the machineries on the basis of the order from the complainant. It is further argued by the learned counsel for 1^st opposite party that 1^st opposite party did not enter into any agreement with either the 2^nd opposite party or the District Khadi and Village Industries Board and as such is not liable for any breach of agreement between the said parties and the complainant. It is the very stance of the 1^st opposite party that their liability is limited to supply of the machineries as per quotation on the payment of the balance amount and that 1^st opposite party was always willing to do so and is still willing to do so, if the increase in the value is also compensated. It is further urged by the 1^st opposite party that they are willing even to refund the amount collected as advance after deducting Rs. 10,000/- as expenses incurred in ordering, transporting and storing such goods. Ext. D1 is the copy of the letter dated 2/4/02 addressed to 2^nd opposite party by the 1^st opposite party in response to a letter dated 15/3/02. It is seen mentioned in Ext. D1 as under: “In the wake of your letter dated 15/3/02 for which I am put forwarding some facts for your information. I have received the D.D for Rs. 60,000/- No.097964 dated 5/12/01 being only advance, not 50% advance, I have already informed both party and bank, the unacceptability of your supply order. After that I have contacted to Sira Beegam to supply the said machine both telephonically and letter and settlement of rest of amount. Till the date she did not respond properly to my intimations. I am ready to supply the said machine through my bank, that is Nedumangadi Bank, Alappuzha to your bank. So if you are ready to agree to my proposal, please respond to my letter and thereafter, I will proceed to supply of machine to said party". In view of the foregoing discussions and evidence available on records, it is to be noted that evidently by Exts. P1 & P13 100% of the value in advance with order, that complainant remitted Rs. 60,000/- as advance which would be less than 50% the value mentioned in either Ext. P1 or Ext. P13, that evidently on 12/1/02 1^st opposite party had informed the complainant by Ext. P12 that all machineries as per the quotation would be ready within a short span of time and requested her to remit the balance amount at their office to proceed further in this matter, but nowhere in the complaint is it seen mentioned that she had approached to 1^st opposite party in response to Ext. P12 letter from the 1^st opposite party to complainant and remitted the balance amount. As such we find no deficiency in service on the part of the 1^st opposite party in not supplying the machineries as per quotation to complainant. It is pertinent to note that evidently complainant had requested the 1^st opposite party by Ext. P7 Advocate notice dated 27/7/02 to return the advance amount along with interest of Rs.5,540/- and Rs. 5,000/- towards compensation, although 1^st opposite party had issued a reply to Ext. P7 notice no effort is seen taken by 1^st opposite party to return the advance amount to complainant in respect of which we find there is deficiency in service on the part of 1^st opposite party. There was no expess agreement between complainant and 1^st opposite party in regard to the supply of machineries, but by Exts. P1 and P5 there was an implied agreement which would govern the conditions of supply, due to non-compliance of the said conditions by the complainant, 1^st opposite party was not able to deliver the goods booked. It is pertinent to point out though complainant had remitted Rs. 60,000/- as advance, to 1^st opposite party she had not availed any benefits or service in return from the 1^st opposite party; she was not able to pay the balance amount to 1^st opposite party to take delivery of the goods booked, as offered by the 1^st opposite party. The complainant has not complied her part of the implied contract. Taking overall situation of the case, we are of the considered opinion justice will be well met if 1^st opposite party is directed to refund the advance amount of Rs. 60,000/- to complainant along with a compensation of Rs.5,000/-.

In the result, complaint is allowed. 1^st opposite party is directed to refund Rs.60,000/- to complainant along with Rs.5,000/- towards compensation. The amount of Rs.60,000/- will carry 12% interest from 27/7/02 if not paid within two months from the date of receipt of this Order. Parties are directed to bear and suffer their respective costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15^th day of May, 2010.

G. SIVAPRASAD,

PRESIDENT

BEENA KUMARI .A : MEMBER

S.K. SREELA : MEMBER

ad.

C.C.No. 470/2002

APPENDIX

I. Complainant's witness:

PW1 : Saira Beevi

II. Complainant's documents:

P1 : Copy of National Machines and Employment consultants

P2 : " loan sanction order dated 28/6/2001

P3 : " loan application

P4 : " letter dated 11/05/2001

P5 : " receipt No. 992 dated 5/12/2001

P6 : " letter from complainant

P7 : " advocate notice dated 25/7/2002

P7(a) : Acknowledgment card

P8 : Reply of advocate notice dated 17/8/2002

P9 : Copy of Telegram

P10 : " registered notice dated 3/6/03

P11 : " certificate dated 1/1/2002

P12 : " registered letter dated 12/01/2002

P13 : Quotation dated 26/11/2001

III. Opposite parties' witness : NIL

IV. Opposite partis' documents:

D1 : Copy of the letter dated 2/4/2002 addressed to 2^nd opposite party

D2 : " postal receipt

D3 : Quotation dated 26/11/01

D4 : Copy of receipt dated 5/12/2001

D5 : " receipt dated 5/12/2001

D6 : " letter addressed to opposie party dated 15/3/2002..

PRESIDENT