INDIAN PHYTOCHEM vs ABHIJIT GHOSH

THIS complaint has been filed by M/s. India Phytochem through its Director Sh. Samir Rathi against Sh. Abhijit Ghosh, Basic & Synthetic Chemicals Ltd. for recovery of a sum of Rs. 3,35,000/- (Rupees three lacs thirty five thousand) along with pendente lite and future interest @ 24% and Rs. 10,00,000/- (Rupees ten lacs) as compensation along with cost of the proceedings.

THE brief facts of the case are that the complainant planned to instal a plant for production of herb powder, at F-19, Industrial Area-2, Hardwar (Uttaranchal) and the opposite party pretended to be most competent concern for manufacture and supply of Lyophilizer and Hot Oven Drier. THE complainant placed the order for manufacturing and supplying of these items vide their order letter No. 1411/IPC dated 14.11.2000. THE opposite party signed an agreement on a non-judicial stamp paper of Rs. 100/- (Rupees hundred) for his acceptance and to remain faithful for completing the desired job with desired quality and without delay. THE opposite party personally collected from complainant''s Hardwar office, the order along with a Bank Draft of Rs. 1,50,000/- (Rupees one lac fifty thousand) being the 30% advance payment as per payment terms of the order. THE delivery of the equipment was to be made by the opposite party within 6 weeks from the date of placing of the order and its commissioning was to be done within a week. THErefore, the entire work was to be completed by the first week of January 2001. 30% of payment was to be made after successful trial and testing of the equipment and 30% after safe delivery of the equipment at Hardwar and remaining 10% was agreed to be made after successful commissioning and successful running of the equipment. It was agreed that the complainant will have reasonable access to the works during manufacturing and testing. After 2 weeks of the placing of the order, Sh. Bishwajit Mukherji was contacted on telephone but he avoided the joint checking of fabrication of equipment. He assured that the equipment shall be installed and commissioned much before the time given in the order. THE opposite party however expressed dire necessity of funds and pressed for release of more payment so that manufacturing could be done. THE complainant further paid a sum of Rs. 1,00,000/- (Rupees one lacs) as desired by the opposite party. THE complainant pressed the opposite party to give a convenient date for joint inspection but he did not hear and said that there is absolutely no reason for the complainant to worry. THE complainant could know subsequently that the opposite party does not have any manufacturing unit of his own. He informed that he has got fabricated the equipment at the works of somebody else where for trade secrecy reasons, he cannot arrange free acess of the complainant. THE opposite party told that the equipment is ready, it is to be despatched but he does not have money to pay the sales tax and transportation charges and insisted for payment of Rs. 50,000/- (Rupees fifty thousand). He promised that he will come and commission all the equipment at Hardwar in the next week. Under the compelling circumstances, the complainant again paid a sum of Rs. 50,000/- (Rupees fifty thousand). All the payments were acknowledged by the opposite party. The opposite party despatched some equipment from Kolkata on 11.3.2001. After unloading of the package from the truck, it was immediately informed back to the opposite party by the complainant that although he was not associated with the testing of equipment at Kolkata but the report of testing by the opposite party has not been sent separately or along with the delivery challan as per terms and conditions of the order. They were informed that unless entire information about the drawings is given, the complainant is not to proceed with equipment. The packages received at Hardwar could not be uncovered, as it was not possible to ascertain the safe delivery of all items without tallying these with the individual item, drawing and bill of material. Instead of commissioning the equipment, the opposite party started demanding Rs. 53,000/- (Rupees fifty three thousand). On 29.6.2001, the complainant informed the opposite party in writing that the packages could not be open because they have not been tallied. The complainant pressed the opposite party to come to Hardwar and to get open the packages in his presence and also to fulfil the contractual obligation of installation and commissioning but the opposite party did not turn up. But instead of turning up at Hardwar, the opposite party demanded a payment of Rs. 2,25,350/- (Rupees two lacs twenty five thousand three hundred fifty). The opposite party did not allow the joint inspection, it did not send the specifications, and it did not submit the drawing and other information. The opposite party has caused a great loss and mental agony to the complainant, hence the complainant filed the complaint. The complainant has alleged that he has paid Rs. 3,35,000/- (Rupees three lacs thirty five thousand) on different dates. Receipts are already on record and he has claimed refund of this amount along with interest @ 24% and compensation of Rs. 10,00,000/- (Rupees ten lacs).

Notices were issued to the opposite party. He appeared and filed objections on 16.6.2003 through Sh. Vikas Chandra, Advocate. The opposite party was present along with Counsel on several dates but on 9.4.2003 and 30.4.2003, he became absent. Again on 16.6.2003, he appeared and filed written statement. The written statement was admitted on payment of Rs. 100/- (Rupees one hundred) as costs and 5.8.2003 was fixed for the evidence of the complainant. Thereafter the opposite party became absent. After waiting on several dates, on 30.10.2003 the case was directed to be proceeded ex parte and the complainant filed his evidence ex parte and he was heard ex parte.

HOWEVER, there is written statement of the opposite party. The agreement appears to have been admitted. HOWEVER, the opposite party admitted the "Inspection" and the "testing" clause but it is alleged that it never avoided for joint checking. It is not liable for the delay, if any. The allegations of the complaint have been totally denied. The delivery schedule could not be made because the Managing Director of the opposite party fell ill. The claim raised by the complainant with regard to payment made is not sufficiently justified. Dr. B. Mukherjee and Mr. Ujjal Dutta had come to the factory of the complainant from time to time to inspect the equipment. The opposite party is entitled to the due amount of Rs. 2,25,350/- (Rupees two lacs twenty five thousand three hundred fifty). The opposite party however did not file any affidavit in support of its allegations, filed written statement and went away. The complainant has filed the copy of the written agreement dated 14.11.2000. He has also filed the copy of the receipts of all the payments made by him and copy of the notices issued to the opposite party. The complainant also filed the affidavit of Sh. Samir Rathi to prove the allegations of the complaint. This affidavit is unrebutted. He has also filed the photographs of the packing machines to show that the entire package is still uncovered. The case of the complainant is proved on facts produced before this Commission.

THE question was raised by us how the complaint is maintainable because the complainant has purchased the machines for commercial purposes. THE complainant filed the affidavit of Dr. Bishwajit Mukherji that it is a firm, which has been created for self-employment and for the employment of his son Samir Rathi. THE complainant has alleged that he holds a degree of medicines. He could not get employment. His son also did not get any employment, therefore, they established this firm for self-employment and livelihood. THErefore, this is not a commercial transaction or business. There is ample evidence on record that the opposite party has agreed to supply the machines to the complainant. It has also agreed for joint testing. It was the duty of the opposite party to satisfy the complainant about the quality of the goods but he never cared. The complainant has paid a sum of Rs. 3,35,000/- (Rupees three lacs thirty five thousand). It was the duty of the opposite party to prove that he has supplied equipment of standard quality but it failed to do so. To the contrary, there is specific case of the complainant that he was not allowed joint testing, he was not allowed inspection of the goods and the goods were sent after which the complainant also insisted that it be opened in the presence of the parties but the opposite party did not hear. All these facts prove that the complainant has paid consideration and he has purchased the goods. The opposite party has been deficient in the discharge of its services. Since the opposite party could not satisfy the complainant about the quality of the goods, the complainant was not obliged to accept the goods. Since a breach has been committed, there is deficiency in service. The opposite party did not comply with the terms of the agreement, therefore, the complainant is entitled to the refund of the price along with interest. Interest @ 12% is fully justified. The complainant has also claimed compensation of Rs. 10,00,000/- (Rupees ten lacs). This is a monetary transaction. The complainant being refunded his amount along with interest, which is in the form of compensation. It is settled principle of law that interest and compensation cannot be allowed at the same time. We are supported by the rulings reported in III (2002) CPJ 124 (NC)=2003 (2) CPC 1 (NC), Satelec Power Electronics v. HRDC; IV (2003) CPJ 90=2003 (6) CLD (SCDRC - Delhi), Rajpal Mahana v. National Insurance Co.; and IV (2003) CPJ 162=2003 (6) CLD 900 (Delhi), Kapil Gupta v. Oriental Insurance Co. We are also supported by the Hon''ble Supreme Court ruling reported in II (2000) CPJ 1 (SC), Ghaziabad Development Authority v. Union of India. In this ruling, another ruling of the Supreme Court was referred wherein it was held that where interest has been allowed @ 15%, separate compensation is not necessary. Now-a-days rate of interest has been enormously cut down by the guidelines of the Reserve Bank of India, therefore, we allow interest @ 12% which is both inclusive of interest as well as compensation. The complainant is entitled to the cost of the proceedings as well. In our view a sum of Rs. 4,000/- (Rupees four thousand only) shall meet the ends of justice. ORDER The complaint is hereby allowed for refund of Rs. 3,35,000/- (Rupees three lacs thirty five thousand only) along with interest @ 12% payable from 15.3.2001, on which date last payment was made till the date of actual payment. The complainant shall also get and the opposite parties shall pay a sum of Rs. 4,000/- (Rupees four thousand only) as cost of the proceedings as well. However, the opposite party is free to lift and take back the alleged equipment, article or goods supplied to the complainant at its own expenses. Complaint allowed with costs.