Haryana

Yamunanagar

CC 387/2010

Star Playwood Ltd. - Complainant(s)

Versus

Wood House Ltd. - Opp.Party(s)

Virender Sehgal

30 Sep 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                               Complaint No… 387  of 2010.

                                                                                               Date of institution: 26.4.2010

                                                                                               Date of decision: 30.9.2015

Star Plyboard Ltd. situated at village Gadholi opposite Tejli Sports Complex Yamuna Nagar through Sh. Updesh Sharma son of late Sh. Vilayti Ram, the then Manager Star Plyboard Ltd. situated at village Gadholi opposite Tejli sports complex Yamuna Nagar, resident of Gali No.5, Ajaad Nagar, Yamuna Nagar.                                                                                                                                                                                                                                                                                                                                                                                                                                                                …Complainant.

                                    Versus

Wood House Ltd. through the Director/Proprietor/ Manager having its office at 44/62, S.P.M. Road, Kochi-Kerela and having its factory premises of Nanu Kettie, P.O. Korattey, Distt. Thrissur, Kerela.

 

                                                                                                                                                                …Opposite party.

BEFORE:         SH. ASHOK KUMAR GARG PRESIDENT,

                        SH. S.C.SHARMA, MEMBER.

 

Present:  Sh. Virender Sehgal, Advocate, counsel for complainant.  

               Sh. Nalin Gupta, Advocate, counsel for OP.   

             

 

ORDER

1                      Complainant firm has filed the present complaint under section 12 of the Consumer Protection Act. 1986 amended up to date.

2.                     Brief facts, as alleged in the complaint, are that the complainant  firm is supplying the construction material and manufacturing ply boards and boards and respondent (hereinafter referred as OP) is doing the business of manufacturing and supplying of decorative veneer. In the first week of May 2005, the OP contacted the complainant on telephone and assured that the product of decorative veneer is of best quality and complainant placed an order for wood decorative veneer for a sum of Rs. 3,25,820/- on telephone from Yamuna Nagar. Thereafter,  the complainant contacted the OP several times on telephone for dispatch of the above order but he demanded half payment of value of the order i.e. Rs. 1,62,910/- from the complainant and assured that after receiving the half payment in advance the order will be dispatched immediately. Believing the version of OP, the complainant sent a demand draft amounting to Rs. 1,62,910/- in favour of OP. It has been further stated that after receiving the abovesaid draft (Annexure-A), drawn in favour of wood house ltd., the OP did not supply the ordered material to complainant and lingered on the matter on one pretext or the other. Lastly, the complainant requested the OP to refund the payment of Rs. 1,62,910/- against the order placed by him  but the OP showed inability for making the payment , which shows the malafide intention of the OP. The complainant also sent a registered /AD legal notice through his counsel but inspite of complying with the notice, sent a false and frivolous reply As such, it is a clear cut deficiency in service on the part of OP and prayed for directing the OP to refund a sum of Rs. 1,62,910/- alongwith interest and also to pay compensation of Rs. 50,000/- as well as Rs. 5500/- as litigation expenses. Hence, this complaint.

3.                     Upon notice, OP appeared through its counsel and filed written statement by taking some preliminary objections such as this Forum has no jurisdiction to try this complaint, complaint is hopelessly time barred, no relationship of consumer and supplier, no locus standi to file the present complaint, no cause of action and on merit it has been alleged that the complainant has tried to mislead the Forum and in fact the complainant firm is dealing in sale of supply of construction material, manufacturing of Ply Board and board etc. The complainant through Mr. V.G.Sampat has placed an order for purchase of decorative veneers- spliced sheets of various wood species from the OP. The decorative veneers spliced sheets were not meant for furnishing the office of complainant as alleged rather the same were meant to be sold further. As such, it was a commercial transaction. It has been further alleged that one Mr. V.G.Samplat authorized agent of the complainant contacted the OP on telephone during April, 2005 and informed that he was coming soon to Cochin for purchasing decorative veneers-spliced sheets of various wood species from the OP. On the instruction of Mr. Sampat the complainant had sent 50% of the amount to OP by way of demand draft as advance and the OP had converted the flitch veneers to sheets as per specifications given by Mr. Sampat and entire work was completed in the second week of June, 2005. On completion of work as stated above, the OP informed Mr. Sampat authorized agent of complainant to take the delivery of the converted materials on payment of balance amount but he requested for more time on behalf of complainant to pay the balance amount stating that the complainant was facing financial problems and fund shortage and he will contact the OP later but there was no news from Mr. Sampat thereafter. It has been further alleged that the OP had manufactured the required material as per specifications given by Mr. Sampat within the required period but it was not lifted on payment of balance 50% inspite of the requested made to Mr. Sampat, who rather told that due to financial crunch the complainant was unable to lift the goods. So, there is no question of refund of any amount as claimed by the complainant rather the OP is entitled to recover the balance 50% amount alongwith interest and storage charges since the date of manufacture till the date of actual lifting of goods and prayed for dismissal of complaint.

4                      As both the parties failed to lead any evidence, hence their evidence was closed by court order on 21.1.2015. However, at the time of filing of complaint, complainant firm filed affidavit of Udesh Sharma Proprietor of firm and documents such as Photo copy of demand draft dated 21.5.2005 Annexure A-1, Photo copy of legal notice Annexure C-1 , Postal receipts Annexure C-2 & C-3, Photo copy of acknowledgement Annexure C-4 & C-5, Photo copy of reply of legal notice Annexure C-6 with the complaint in support of his complaint.

5                      We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

6.                     In the present complaint the complainant wants to get the refund of Rs. 1,62,910/- being 50% advance money paid against order for purchasing decorative veneer along with interest at the rate of 24% per annum calculating from the date of placing the order from the OP by way of this complaint which was paid through demand draft No. 840191 dated 21.5.2005 drawn on ICICI Bank, Yamuna Nagar (Annexure A1) as the complainant firm is doing the business of supplying the construction material and manufacturing Ply Boards and Boards. From the perusal of contents of the complaint as well as legal notice issued on 25.2.2009 (Annexure C-10 and reply of the legal notice Annexure C-6), it is clear that complainant firm had business transaction with the OP who is dealing in the business of same nature. The complainant has mentioned in his complaint that in the first week of May 2005 he placed an order by telephonically to the OP and made a payment of Rs. 1,62,910/- i.e. 50% of advance money of the total cost of Rs. 3,25,820/- for purchasing wood decorative veneer. It has been specifically mentioned in para No.2 of the reply on merit filed by OP that the decorative veneer spliced sheets were not meant for furnishing the office of the complainant as alleged and rather the same were meant to be sold further to to earn profit. As such, it was a commercial transaction. The version of the OP was that they had manufactured the required material as specification given by the authorized person Mr. Sampat within a required period but it was not lifted on payment of balance 50% inspite of requests made to Mr. Sampat rather he told that due to financial crunches the complainant was unable to lift the goods. From the perusal of the entire pleading, it is clear that the transaction between the OP and complainant are purely of commercial nature as there was simply sale and purchase between the parties. Neither any defect in the goods nor any deficiency in service has been leveled by complainant in his pleading. Even the version of the complainant as alleged in the complaint is totally different from the language of notice given on 25.2.2009 (Annexure C-1). In legal notice (Ex. C-1) it has nowhere mentioned that to maintain the office, the complainant firm is required to purchase decorative veneer as alleged in the present complaint before this Forum. In para No.1 of the legal notice it is clearly mentioned that “ you are doing the business of manufacturing of decorative veneers at your above premises and my client was a customer for above produce. In the 1^st week of May, 2005 you contacted my client on telephone and in that 1^st meeting after making negotiations an order for Wood Decorative Veneer products for a sum of Rs. 3,25,820/- was placed by my client to you”. From plain leading of this para it is clear that the facts mentioned in the notice have been molded in the complaint just to file the complaint as per purview of the Consumer Protection Act.

7.                     Further, the complainant has filed this complaint for refunding the money of Rs. 1,62,910/- i.e. 50% of advance money given in the month of May, 2005 and the present complaint has been filed on 26.4.2010 i.e. after a gap of near about 5 years whereas, as per section 24 (a) of the Consumer Protection Act, the complaint can be filed within a period of two (2) years which is reproduced as under:

                        Limitation Period. (1) The District Forum, the State Commission or The National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2)        Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub section (1), if the complainant satisfies the District Forum, The State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.

            Provided that no such complaint shall be entertained unless the National Commission, The State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.  

8.                     In the present complaint, neither the complainant has filed any application for condonation of delay nor any prayer has been made in the complaint itself.  Hence, the complaint of the complainant is hopelessly time barred. Further this is a dispute between both the firm only for sale and purchase of the goods or refund the advance money, hence, the complainant firm is not fall under the definition of consumer as define in section 2(1)(d)(i) of the Consumer Protection Act, 1986.

9.                     After going through the above noted facts and circumstances of the case, this Forum of the considered view that neither the complainant falls under the category of consumer nor the complaint is within the limitation and the complaint of the complainant is only misuse the process of law. Maximum the matter in dispute may be of Civil nature. Hence, we find no merit in the present complaint and the same is hereby dismissed with cost of Rs. 2000/- which shall be deposited in the Consumer legal Aid as the complainant has waste the time of this Forum by misleading the facts. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced: 30.9.2015.

                                                                                    (ASHOK KUMAR GARG )

                                                                                    PRESIDENT,

                                                                                     

                                                                                    (S.C.SHARMA )

                                                                                     MEMBER.