T.P.Prabhu son of Puttarudraiah,

Aged about 47 years,

Residing at Maitry cottage, Complainant

Behind Government College,

Guru Layout, Tumkur

AND

Marudhar, Jewellers,

Represented by its Proprietor, Opposite party

Mahendra Market, opposite to

Chandramoulishwara Swamy temple,

Kesarumadu Road,

Kyatasandra, Tumkur-04

ORDER

This is a complaint filed Under Section 12 of the Consumer Protection Act, 1986 (hereinafter called as Act for short)

2. Through this complaint, the complainant prays for an order against the Opposite Party (hereinafter called the OP for short) to pay a compensation of Rs.4,90,000/- towards gold, cash and for mental agony alongwith costs of the proceedings.

3. The facts given rise to institute the complaint may be summarized as thus:

It is contended that, the OP is running jewellary business at Tumkur and the complainant had approached the OP on 12-8-06 for preparing golden ornaments. He alleged to have paid a cash of Rs.1,80,000/- and handed over 60 grams gold to the owner of the shop viz. Mahendra. The complainant requested the said owner of the shop to prepare the following ornaments:

1. Two pairs of Bangle weighing 60 grams

2. One Bulb type chain weighing 30 grams

3. One necklace weighing 145 grams

4. It is further contended that, the OP received a sum of Rs.1,80,000-00 and 60 grams gold from the complainant. The OP issued receipt bearing No.19 and agreed to deliver the same on or before 17-8-2006.

5. It is further contended that, again the complainant gave an order for preparing the Jewells. On 27-10-2006, the complainant paid a sum of Rs.15,000/- and 120 grams of gold to the OP. The OP having received the amount and gold had agreed to deliver the newly prepared ornaments on 10-11-2006 and issued receipt bearing No.68. The OP totally received 180 grams gold and cash of Rs.1,95,000/- from the complainant. It is further contended that, inspite of repeated requests and visits to the shop of the OP, he failed to deliver the ornaments or the amount and gold to the complainant. The complainant visited more than 100 times to the shop of the OP, but the OP never cared to return the articles. Due to which, the complainant and his wife suffered mental agony. Hence, this complaint.

6. The complainant has filed an application under Section 5 of Limitation Act to condone the delay if any in filing this complaint.

7. In the sworn affidavit it is contended that, he had approached the OP on several times and requested him to return the finished jewels. But the OP took time and failed to repay the jewels inspite of repeated requests. Thus, there is some delay in filing the complaint. The delay is bonafide one and not intentional. Hence, this application to condone the delay in filing the complaint and if the application is not allowed, he will be put to irreparable loss and injury. The injury that, he will sustain cannot be compensated by any means. Therefore he prays for an order to condone the delay.

8. The OP, who has been notified of the complaint, put in his appearance through his counsel and resisted the same.

9. The gist of the objections is as follows:

In the objections filed by the OP, he while emphatically denying the complaint averments as false and untenable inter-alia pleaded that, the complainant being an official in the police department had collected money from various persons under the pretext of providing jobs to them in the department. Thereafter, when those persons made galata and demanded their money back, the complainant and alongwith his wife came to the shop and sold 100.300 grams of ornaments on 26-7-2006 for a sum of Rs.78,260/-. Since, the complainant was very well known to him, he purchased the same for the said sum and on request he had given hand loan of Rs.21,740/- to settle the demands of the persons from whom the complainant had collected money. It is contended that on 12-8-06 the complainant came to his shop and requested to him to take an order for preparing golden ornaments and assured that, he would bring the amount on next day. Accordingly, the orders for preparing the aforesaid golden ornaments were taken.

On the assurance of the complainant, he gave the order copy to him to show it to his wife. However, the complainant did not turn up on the next day or subsequently nor gave any advance. Thus, is it contended that, he neither received the gold nor cash. It is contended that, during December 2008, when he met the complainant near Govt. College of Tumkur, he insisted for repayment of amount, which was borrowed from him in front of the friends of the complainant. At the time, the complainant abused him with filthy language and thereafter refused to return the amount. It is alleged that, in order to wreak vengeance and to avoid the repayment of hand loan a false complaint has been lodged against him. Accordingly, he prays for dismissal of the complaint.

10. In support of the case, the complainant and the OP have filed their affidavits. They have also pressed in to service of several documents. We have heard the learned counsels appearing for the parties. We have also examined the materials available on record.

11. The questions that arise for our considerations are:

1. Is the complaint barred by limitation? If so, is there any sufficient cause to condone the delay?

2. Is there is any deficiency of service by the OP?

3. Is the complainant entitled for the relief as prays for?

12. Our findings on the above questions are here under:

Point No.1: Yes- No sufficient cause is made out

Point No.2: No

Point No.3: As per order

REASONS


13. At the very outset we must point out that, the alleged transaction between the parties took place on 12-8-2006 and 27-10-2006. It is the case of the complainant that, the OP had agreed to deliver the ornament on 10-11-2006. When the OP failed to deliver the same, the cause of action started running against the complainant from that date. Undisputedly, the complaint under the Act will have to be filed within 2 years from the date of cause of action. That means to say the complaint should have been filed it on or before 10-11-2008. The present complaint came to be filed on 4-2-2009.

Thus, there is an inordinate delay in filing the complaint. In the sworn affidavit no acceptable much less sufficient cause is made out by the complainant for condoning the delayed action. When he made repeated requests and what was the last date of such request made by him is not forthcoming in the affidavit. Thus, the facts narrated in the affidavit to explain the delay is as bald as it could be. Therefore, we are not inclined to accept the cause shown by the complainant to condone the delay. It is pertinent to note that, the complainant is not a rustic person who is not well versed with the procedural law. He is in official working in the police department. Therefore, he should have come up with acceptable and sufficient cause to condone the delay. Accordingly, the point No.1 is answered.

14. Now coming to the merits of the case from the documents produced by the complainant the copies of the order form produced by the OP, it is seen that, in the order form produced by the complainant there is over writing and manipulation. Had the OP received the sum and gold and acknowledged it in the order form, it should have been borne in the order copy and the copy of the order form maintained by the OP. It is relevant to note that, the order form book produced by the OP is maintained and operated in the regular course of business. The order form issued by the OP came to be issued by him at a point where there was no dispute between the parties.

Therefore, naturally the writings and over writings found in the order form issued to the complainant should have found a place in the carbon copy of those orders. But as indicated earlier, in the order form maintained by the OP no such over writing or acknowledgement of receipt of gold is forthcoming. Therefore, it is apparently clear that, the document produced by the complainant do not spell out the true and correct picture of the transaction. Further, the complainant has not produced any iota of evidence about payment of Rs,1,80,000/- on 12-8-2006 and Rs.15,000/- on 27-10-2006. Admittedly, the said amount was not given through any cheque. The complainant has also not shown any proof to establish the availability of such funds with him on the particular date or withdrawal of such heavy cash from any bank. Therefore, we are not inclined to accept the theory pro-founded by the complainant. Thus, we hold that, the complaint is devoid of merits and it is liable to be rejected

15. Being that opinion, we proceed to pass the following:

ORDER
The complaint is dismissed. No order as to costs.