DEEKAY And SONS (P) LTD. vs HPL FOODS INDIA PVT. LTD.

THE brief facts of the case are that the complainant happens to be a Private Limited Company dealing in Meat Products and exporting the same to the Gulf countries. THE complainant approached the respondent to avail their services of deep freeze and chilling room system and entered into an agreement with the respondent on 14.9.88. THE respondent, vide this agreement, agreed to tender the following services to the complainant:- (i) That the opposite party shall provide the services of blast freezing 4 to 5 tons capacity at minus 40 degrees centrigrade per day; (ii) To provide cold room chamber of size 36'' x 26'' x 14'' at minus 20 degrees centrigrade per day; (iii) To provide the chilling room of size 57'' x37'' x 7''; (iv) To provide covered processing hall; and (v) To provide a room for Bones and Office space.

THAT in lieu of the services to be provided by the respondent, the complainant had to pay a consideration of Rs. 1,20,000/- per month and that the complainant paid Rs. 3,00,000/- as advance deposit with the respondent for making necessary alterations as per the terms of the agreement. The agreement was to commence w.e.f. 1.11.88. The respondent could not provide the services as per the terms of the agreement and did not make necessary additions and alterations in the Meet Processing Unit and the Unit could not be handed over to the complainant THAT the respondent raised a further demand of Rs. 1,00,000/- from the complainant which payment was made by the complainant and thereby a total amount of Rs. 4,00,000/- was paid by the complainant to the respondent. THAT the respondent did not provide the unit to the complainant up to then month of April ''89 and even the appropriate machinery was not installed. THAT the complainant when used the machinery as was provided by the respondent discovered that the services provided by the respondent were not up to the mark and that against the promised capacity of 125 tons only 45 tons of Meat Products could be produced during the whole month of April ''89. THAT the temperature of the chilling room was not of the desired level which resulted in inferior production. THAT the complainant later came to know that the respondent had not got valid licence from the competent authorities and that the electricity system was not properly installed in the Unit. The respondent had only one electric meter on which they used to run three Meat Processing Units with the result that the processing of meat used to take 36 hours instead of 12 hours and poor quality of meat was produced as a result thereof. The respondent also failed to provide covered open space and that the complainant suffered substantial loss due to the non-fulfilment of providing the agreed services by the respondent and as a result thereof many orders from the customers were revoked as a result thereof the complainant could not continue his business. In the relief the complainant had sought for directions to the respondent to return the amount of Rs. 4,00,000/- to the complainant alongwith interest @ 18% p.a. The respondent denied all the allegations and stated that some material facts have been suppressed by the complainant and it was stated that a separate suit titled HPL Food India (P) Ltd. v. Deekay & Sons was pending in the High Court of Delhi and in that suit the respondent had rather claimed recovery of Rs. 3,54,000/- from me complainant. It was, however, admitted by the respondent that an agreement dated 14.9.88 was entered between the parties whereby the complainant had agreed to enjoy the facilities of the refrigeration unit of the respondent on the terms and conditions contained in the said agreement It was further stated by the respondent that it was specifically mentioned in die agreement dated 14.9.88 that the same shall come into operation w.e.f. 1.11.88. And that too only after the payment of advance as mentioned in the agreement. It was denied by the respondent that a sum of Rs. 1,00,000/- was paid by the complainant for making any addition and alteration in the unit.

It was stressed by the respondent that the payment of Rs. 1,00,000/- and all other payments were made as per terms and conditions of the agreement dated 14.9.88 and even after the payment of the amount of Rs. 1,00,000/- as mentioned in the complaint. The following payments were made by the complainant:-

THE respondent stated that this material fact regarding the above given payments in between 6.4.89 to 24.7.89 on 10 different occasions have been concealed from the notice of the Commission by the complainant. And that this material fact clearly shows that the agreement dated 14.9.88 was acted upon by the parties and that the facilities were duly enjoyed by the complainant. It was stated by the respondent that they had raised the following bills in the name bf the complainant:- That as per the above statement of account the complainant was liable to make the payment of Rs. 3,63,621/- but later it was agreed that only rupees three lacs will be paid by the complainant for which various reminders were issued by the respondent but the payment was yet due from the complainant. It was also stated by the respondent that two cheques for rupees 40,000/- and 20,000/- issued by the complainant were even dishonoured by their bank. It was further stated by the respondent that officials of the complainant had been countersigning the challans while taking away the goods from the refrigeration unit of the respondent. It was denied by the respondent that the unit was not maintained as stipulated in the agreement. It was also denied by the respondent that Meat Products had become unmarketable or of poor quality on account of any act and conduct of negligence on the part of respondent and that the respondent was in no way concerned with the cancellation of any order from the Gulf countries. It was alleged by the respondent that this complaint had been filed on false and frivolous facts and only with the malafide intention to delay the payment to the respondent and to cause harassment to the respondent.

WE have heard the parties at length, gone through the record and scanned the documents produced by both the parties. The main contention of the Complainant was that they had suffered a loss on account of deficiency in services to be provided by the respondent in the shape of deep freezing and refrigeration facilities for their export business of Meat Products and that the respondent have violated the terms of the agreement entered into by both the parties. The respondent, on the other hand, have pleaded that they have complied with all the provisions of the contract/agreement between the parties and that the complainant has been availing the services provided by them which were not deficient in any manner. During the course of arguments respondent drew our attention towards the copy of the account of M/s. Deekay & Sons Pvt. Ltd. -the complainant for the year 1988-89 and according to this account ten different payments were credited to the account of the respondent in between 6.4.89 to 24.7.89. It was pleaded by the respondent that how could the complainant make these payments on different dates upto 24.7.89 when satisfactory services were not being provided to them. All these payments have been made through cheques and demand drafts and the complainant could not bring to our notice a single instance when he had made any of the above referred payments under protest or by raising any objection regarding the quality of services being provided to them as per the terms of the agreement. The respondent also placed before us copies of the bills issued to the complainant in the regular course of business w.e.f. 1.12.88 for the amount of Rs. 1.20 lacs per month which were on account of charges for chilling/freezing and storage services for the respective months. When questioned the complainant could not show us any objection/protest letter having been written to the respondent for raising these bills. The complainant, however, drew our attention towards a letter dated 7.5.89 (Exhibit CW 1/12) on record which was a complaint made by one of their customers M/s Al Mashriq Exports Pvt. Ltd. This letter has been addressed to M/s. Deekay and Sons. Surprisingly the address in the letter had been mentioned as C26, Lawrance Road, Wazirpur Industrial Area, Delhi which address in reality relates to the respondent. It is not understood as to how and under what circumstances the author of this letter to chose indicate the address of respondent instead of proper address of the complainant with whom he must have been conducting correspondence in the day to-day affairs of their business with each other. The note written and the contents of this letter indicates that this letter appears to be a prompted one. The complainant had pleaded that the unit was not handed over by the respondent before April ''89. In this regard the respondent drew our attention towards R-19, 18 & 17 which were copies of the delivery challans for the supply of various items of raw material to the complainant M/s. Deekay & Sons at C-26, Lawrance Road, Delhi. These delivery challans pertain to the month of January & February. A closer scrutiny of these documents belies the claim of the complainant that the unit was handed over to him only in April ''89. In para No. 3 of the complaint it has been alleged by the complainant that Rs. 3,00,000/- was paid as advance deposit to the respondent for making necessary and substantial alterations in the unit. We have perused the copy of the agreement and there is no such condition incorporated in the agreement. Similarly we find no mention of any site plan having been annexed with the said agreement.

IT was pleaded by the complainant that proper temperatures were not maintained by the respondent which had resulted in poor quality of Meat Products. This allegation of the complainant was also contested by the respondent on the grounds that the same was not supported by any material evidence on record. IT is a matter of common knowledge and practice that temperature charts and specific log books are maintained in every cold storage where the temperature levels and any break downs are constantly monitored. In case there was any deficiency on that account the complainant should have placed or got summoned such records to support their contention. The respondent on the other hand has produced copies of delivery challans as R-12 and these challans substantiate that the authorised representatives of the complainant always acknowledged that the goods consisting of frozen buffalo meat were in good order and condition. The complainant has, thus, been making self contradictory statements and suppressing material facts.

A perusal of the documents placed before us does reveal that the complainant does owe same payment to the respondent regarding which demand was raised by the respondents during the course of their regular business. There is correspondence also on record which factum has been suppressed by the complainant. Two cheques issued by the complainant in favour of respondent were also dishonoured. The agreement for 11 months was to start from November ''88 and conclude by October ''89 whereas according to his admission the complainant removed all his materials in July ''89 itself. At this stage a perusal of R-22 which is a request for a gate pass written in the hand of complainant himself on 16.12.89 is very relevant and the same reads as follows:- "Please allow M/s Universal Import & Export to take the following number of cartons as we have sold to him. The number of cartons are as follows : 116 bundles of 25 each cartons." On the basis of above request a gate pass No. 8837 dated 16.12.89 for truck No. DLL 2477 was issued. This document contradicts the claim of the complainant that he had removed his ail material in July ''89. The version of the complainant was, therefore, not found to be consistent.

The complaint was filed by him as late as 31.3.91. In between this period the complainant was reminded vide letters dated 3.6.89 and again on 13.1.90 to clear the payment of their outstanding dues. The contention of the respondent that the complaint was motivated and an after thought to create alibi for avoiding or delaying the legitimate payment for having availed the facilities of cold storage as per terms of the agreement appears to be correct.

IN the light of the above discussed facts and having gone through the evidence and documents on record we have come to the conclusion that the complainant has miserably failed to substantiate any of his allegations and consequently the complaint merits rejection. We also impose a cost of Rs. 2,000/- on the complainant to be paid to the respondent within a period of one month from the date of order. Complaint dismissed with costs.