K.B.AGENCIES CORPORATION vs RAM CHANDER

APPEAL No. 1366/SC/1992 arises out of the judgment and order dated 30.3.1992 passed by District Forum, Gorakhpur in Complaint Case No. 196/1991. APPEAL No. 1367/SC/1997 arises out of the judgment and order dated 30.3.1992 passed by District Consumer Forum, Gorakhpur in Complaint Case No. 270/1991. Since the dispute involved in both the complaint cases is identical in nature, they are being taken up together for adjudication. The brief facts of the case are as follows : APPEAL No. 1367/SC/1992 : The complainant Safi Mohammed Khan negotiated with the opposite party, K.B. Agencies Corporation, for purchase of a tractor of 35 horse power. A quotation was obtained in which the price quoted was Rs. 1,30,208/-. Accordingly a bank draft of the same amount was handed over to the opposite party. The opposite party assured delivery of the tractor within a few days but the tractor was delivered only on 16.1.1991 after an additional payment of Rs. 14,137/-. Thus the complainant was not given interest from the date of delivery of draft, i.e. 1.10.1990 till the date of delivery of the tractor on 16.1.1991. Instead an amount of Rs. 14,137/- was realized in excess. This resulted into loss to the complainant. The complainant, therefore, lodged a claim before the District Consumer Forum for recovery of the excess amount paid and the interest on Rs. 1,30,208/- from 1.10.1990 to 16.1.1991.

IN the written statement before the learned District Forum, the opposite party stated that on 11.9.1990 a quotation was given by the opposite party for a tractor and a cultivator. The price of the tractor was quoted as Rs. 1,24,608/- and that of the cultivator was Rs. 5,600/-. Thus the total amount involved was Rs. 1,30,208/- and an amount of this account was given to the opposite party on 1.10.1990. No assurance had been given to the complainant that the tractor would be given within a few days. The opposite party is only a dealer and the manufacturer is Escort Company. The supply of the tractor was delayed because of the agitation in regard to Ram Janmabhoomi. IN the quotation it was made clear that the price charged would be as applicable at the time of delivery and, therefore, the price quoted was subject to escalation. The price of the tractor and the cultivator had increased to Rs. 1,42,515/- and the complainant was informed of this price. The complainant deposited additional amount of Rs. 10,000/- on 8.1.1991 and the rest amount of Rs. 2,360/- was deposited on 15.1.1991. On the next date 16.1.1991 the tractor and the cultivator were delivered to the complainant. There is no agreement between the parties that on the deposited amount interest will be paid. The amount charged by the opposite party was the then prevailing price of the tractor and the cultivator. All other allegations made in the complaint were denied and it was stated that the complaint is not entitled to any relief.

The parties led evidence before the learned District Forum who after hearing them decreed the complaint and directed the opposite party to pay interest on the amount of Rs. 1,30,208/- from 1.10.1990 to 15.1.1991 at the rate of 15% per annum which comes to Rs. 5,696/-. The Forum also directed for refund of Rs. 14,137/- which was charged as additional cost from the opposite party, over and above price quoted in the quotation. Thus the Forum directed that the opposite party was to pay to the complainant a sum of Rs. 19,834/- along with a compensation of Rs. 3,000/- and cost of Rs. 200/-.

APPEAL No. 1366/SC/1992 : The facts of the case are that the complainant deposited an amount of Rs. 1,13,323/- as cost of the tractor with the opposite party. The remaining amount of Rs. 3,600/- was deposited by the complainant on 8.1.1991. However, the tractor and cultivator were not delivered to the complainant till 1.4.1991. The opposite party only delivered the tractor and not the cultivator. The cultivator was delivered on 3.4.1991. The complainant, therefore, lodged a claim before the learned District Forum for refund of the excess amount of Rs. 8,100/- charged from him by the opposite party along with interest of Rs. 3,306/-. In the written version before the District Consumer Forum, the stand taken by the opposite party was that the complainant had only deposited a sum of Rs. 1,13,323/- as cost of the tractor, whereas the cost of the tractor had increased to Rs. 1,19,383/-. The complainant did not deposit the amount in time and the tractor and cultivator were handed over as soon as the amount was paid. The complainant is, therefore, not entitled to any relief.

THE parties led evidence before the District Forum and the Forum decreed the complaint to the extent that the complainant shall be entitled to interest of Rs. 3,306/- and the excess amount paid by the complainant amounting to Rs. 8,100/-. Thus the complaint was decreed for Rs. 11,406/-. The opposite party has come in appeal in both the cases aggrieved of the order of the Forum. Notices were issued to the parties but the appellant did not come on the date fixed which was 20.2.2002. Since then dates have been fixed in continuation but the appellant did not put up their appearance. Ex parte arguments of the learned Counsel for the respondent were ,therefore, heard.

LEARNED Counsel for the respondent has argued that both the appeals are time, barred. A perusal of the records will go to show that Appeal Nos. 373 and 374 of 1992 were filed by the opposite party/appellant. These appeals were decided by this Commission on 20.12.1992 as the appellants did not come on the date fixed. As such the appeals were dismissed for default. thereafter restoration application was moved for restoring the appeals on 4.11.1992. On 12.11.1992 the Commission vide its order allowed the appellants to file fresh appeals, and on 13.11.1992 these appeals were filed explaining the reasons in paras 14, 15 and 16 of the memo of appeal. Affidavits were also filed which have remained uncontroverted till now. We, therefore, proceed to decide the appeal on merits.

WE have gone through the records of the appeals. A perusal of the written statement filed by the opposite party will go to show that the transaction between the parties have been admitted. The opposite party has given plea that the price of the tractor and the cultivator was subject to increase at the time of delivery and the delivery was delayed because of Ram Janmabhoomi agitation. The complainants cannot be allowed to suffer on account of this. As a matter of fact they had taken loans from the Bank and the drafts of various amounts were got prepared and sent in time to the opposite party. The opposite party failed to make delivery inspite of the payment having been received quite in time. Even the opposite party did not deliver the cultivators unless the excess price charged was deposited by the complainants. Therefore, the complainants were not only entitled for the refund of the excess amount charged but also entitled to the interest because of unduly delayed delivery. The complainant had taken loan from the Bank and the Bank charges interest on the amount of loan. In the circumstances we do not find any flaw in the judgments and orders passed by the District Forum and they are liable to be confirmed and both the appeals are liable to be dismissed. ORDER Both the Appeal Nos. 1366/SC/1992 and 1367/SC/1992 are dismissed and the judgments and orders are confirmed. There will be no order as to the costs. Let compliance of the order be made within a period of six weeks from the date of this order. The original judgment and order shall be placed in the records of file No. 1367/SC/1992 and a certified copy thereof shall be kept in the records of Appeal No. 1366/SC/1992 which shall also be governed by this judgment and order. Let copy as per rules be made available to the parties. Appeals dismissed.