District Consumer Disputes Redressal Forum
Dakshin Dinajpur, W. Bengal
(Old Sub-Jail Municipal Market Complex, 2nd Floor, Balurghat Dakshin Dinajpur Pin - 733101)
Telefax: (03522)-270013
Present
Sri N. K. Sarker - President
Miss. Swapna Saha - Member
Sri J. Bhattacharya - Member
Consumer Complaint No. 7/2013
Sri Biswanath Mahato
S/o Late Karmu Mahato
Vill-South Bahadurpur, PO: Dangram.
PS: Harirampur.
Dist. Dakshin Dinajpur …………………Complainant(s)
V-E-R-S-U-S
1. Sri Dilip Dey,
Proprietor & Authorised Dealer of H M T Tractor,
Sales, Services & Spare Sparts.
Laxmi Engineering Works, Mangalpur Ashrampara
PO: Beltalapark. PS: Balurghat,
Dist-Dakshin Dinajpur …………………Opposite Party
For complainant ……… - Sri Biswarup Chatterjee, Ld. Adv.
For OP-1 ……… - Sri Sudip Kr. Ray Choudhury, Ld. Adv.
Date of Filing : 18.01.2013
Date of Disposal : 24.06.2013
Contd…P/2
Judgment & Order dt. 24.06.2013
Following a discussion regarding purchase of a H M T Tractor, Model No. 6522, the complainant paid and advanced Rs.25,000/- on 17.11.2011 to OP-1 and obtained a receipt. The tractor was assured to be handed over on 21.11.11. When the complainant on 21.11.11 came to the showroom of OP-1, being requested by him the complainant again paid Rs.75,000/- and got receipt. The OP-1 again requested the complainant to come on 22.11.11 and on demand he again paid Rs. 75,000/- but on that date he was given temporary receipt. Despite repeated request and payment of Rs.1,75,000/- the tractor was not delivered. Finding harassing and cheating motive of OP-1 the complainant through his Lawyer sent a notice dated 26.11.12 asking the OP-1 to refund said Rs.1,75,000/- but to no good. No result yielded despite lodging complaint to local PS and also informing SP Balurghat. On 27.10.12 the OP-1 by a letter asked the complainant to pay Rs.588230/- in cash or by draft which was not possible for the complainant and he refused the proposal. The whole action on the part of OP-1 was harassing for which the complainant suffered mentally and financially. Hence the case.
Denying all material allegations, the OP-1 in his written version contended that when the complainant by his letter dt. 11.10.12 (through Adv.) claimed refund of Rs. 1,00,000/-, he by sending a quotation and a letter dt. 27.10.12 asked the complainant to pay the balance amount so as to enable him to deliver the tractor within 7 (seven) days from the date of such receipt. The complainant by sending another demand notice through his Advocate Kishore Kr. Bhattacharya asked for refund
Contd…P/3
of Rs.1,75,000/- by procuring fake money receipt. The OP-1 never received such amount. It is further contended that he is ready and willing to deliver the tractor provided balance consideration is paid. Hence, prayer for dismissal of the case.
Admittedly , the complainant paid Rs.25,000/- and Rs.75,000/- total Rs. 1,00,000/- on two dates and the complainant got receipts. Dispute arose regarding further payment of Rs.75,000/-. According to the complainant, he paid Rs.25,000/- on 17.11.11, Rs.75,000/- on 21.11.11 and further Rs.75,000/- on 22.11.11. On the other hand, the OP-1 claimed to have received Rs.1,00,000/- only in total but did not specify the dates when he received such amount. Be that as it may, there is no dispute regarding payment of Rs.25,000/- on 17.11.11. The OP-1 did not categorically deny receipt of further Rs.75,000/- on 21.11.11. He simply alleged that the stated payment of Rs.75,000/- on 22.11.11 is based on procured and take receipt. Ld. Advocate for OP-1 has also given much emphasis on the complainant’s Advocate’s letter dt. 11.10.12 whereby the complainant spoke about total payment of Rs.1,00,000/- and asked for refund of the same. According to him, if the complainant had really paid total Rs.1,75,000/- by diverse amount respectively on 17.11.11, 21.11.11 and 22.11.11 then there was no reason for him to mention said total amount in his Advocate’s notice dt. 11.10.12 which is well beyond 22.11.11 being the last date of payment.
Prima facie such argument appears to be convincing and acceptable. If the complainant had really paid Rs.1,75,000/- in total on three different dates (lastly on 22.11.11) then such payment was within his special knowledge and there was no
Contd…P/4
reason to omit such further payment of Rs.75,000/-and to ask for refund of Rs.1,00,000/- only instead of Rs.1,75,000/-. We also find that in respect of earlier two payments he received pucca receipt but for payment on 22.11.11 there was no reason why he remained satisfied with kuccha (temporary) receipt.
But another important aspect of the present episode cannot be lost sight of. complainant’s letter dt. 11.10.12 through his Advocate Minhajur Rahman has been filed from the custody of the OP-1. In the 8th & 10th line of the body of that letter we find that one numeric “2” in the date, that is “22.11.2011” is not in the regular typing. It may be a correction or interpolation without any initial of the author of the letter. We also find similar correction or interpolation, whatever it may be, in the money receipt bearing serial 219 for Rs.75,000/- which is coming from the custody of the complainant. We have not been supplied with any material to ascertain as to who did such interpolation or correction. We find that a complaint has been made to local PS vide Balurghat PS case No. 740 dt.04.12.12 which must be under investigation. Such investigation may unearth the genuineness of the pucca receipt showing payment of Rs.75,000/- so far the date of that receipt is concerned and whether the kuccha receipt for Rs. 75,000/- dated 22.11.11 is fake and / or procured one. Unless such investigation is complete it cannot be definitely concluded whether the complainant has really paid Rs.1,75,000/- to OP-1 or not. This Forum expects conclusion of investigation of abovementioned police case at an earliest. But in view of demand notice of the complainant dt. 11.10.12 claiming refund of Rs.1,00,000/-, which was not challenged or refuted by OP-1,
Contd…P/5
there is no confusion that the complainant has at least paid Rs. 1,00,000/- and he is entitled to refund of that amount with interest for the present. He is not willing to get delivery of the tractor from OP-1 on paying balance consideration.
The complainant has pleaded that he wanted to purchase the tractor on making payment partly in cash and partly taking loan from a financer and accordingly the OP-1 got some documents executed by the complainant for said purpose. The OP-1 in his written version did not specifically deny such assertion of the complainant. The assertion of the complainant remains unassailed in view of the principle of “non traverse”. But by his letter dt. 27.10.12 the OP-1 asked for payment of the balance consideration by cash or by draft for causing delivery of the tractor. Accordingly, we find deficiency in rendering service on the part of the OP-1. Therefore, he is liable to refund Rs.1,00,000/- with interest @ 6% p.a. from 22.11.11 (when payment at least of Rs.1,00,000/- was complete) till payment. The complainant is also entitled to litigation cost of Rs.2,000/- and Rs.3,000/- as compensation for his mental harassment .
Hence, it is.
O R D E R E D
That the petition of complaint u/s 12 CP Act, filed on 18.01.2013 is allowed on contest with cost.
The OP-1 is directed to pay the complainant Rs.1,00,000/- together with interest thereon @ 6% p.a. to be calculated from 22.11.2011 till payment together with litigation cost of Rs.2,000/-
Contd…P/6
and Rs.3,000/- as compensation for his mental harassment, by an A/c Payee cheque, within a month from the date of this order.
Let plain copies of this order be furnished to the parties forthwith free of cost.
Dictated & corrected
………….…….
(N. K. Sarker)
President
We concur,
………....…… …………..……..
(S. Saha) (J. Bhattacharya)
Member Member
- Date when free copy was issued ……………………
- Date of application for certified copy ……………………
- Date when copy was made ready ……………………
- Date of delivery ……………………
FREE COPY [Reg. 18(6)]
- Mode of dispatch ……………………
- Date of dispatch ……………………
-x-
