KHANNA ENTERPRISES vs Manjeet Singh

AGITATED by the order of the District Forum, Ropar dated 25.4.96, the appellant before us is the opposite party before the District Forum. In our order, we shall be referring the parties as they were before the District Forum i.e. appellant as opposite party and the respondent as complainant.

THE complainant who has done his B.D.S. course in the year 1992 and got a loan of Rs. 1,00,000/- sanctioned from the Scheduled Caste Finance Corporation approached the opposite party-M/s. Khanna Enterprises, Chandigarh for supply of the Dental X-ray machine alongwith Dental chair (Confident''s Compact Clinic with attached unit) and other material. Vide Ex. A/12 dated 3.6.93 the opposite party issued the quotation to the complainant mentioning the rates of the material cited therein and for the disposal of this appeal only the rates of dental chair with attached unit (Confident Compact Clinic) are relevant and the rate of the said dental chair had been quoted to be Rs. 35,000/- and the full sale price of the material to be supplied vide quotation is Rs. 1,06,000/- and as per terms and conditions of the quotation the rates of goods are F.O.R. destination. Ex. A/4 is the receipt dated 3.6.93 itself vide which the complainant has paid the cheque of Rs. 1,00,000/- to the opposite party against the advance payment of the supply of the material including the dental chair. It is alleged in the complaint that inspite of the repeated reminders and repeated visits made to the opposite party and inspite of the payment made in advance, the requisite material including the dental chair was not delivered. Having no option left, vide Ex. A/5 dated 16.8.93, the complainant Dr. Manjit Singh wrote to the Regional Manager, Confident Dental Equipment Pvt. Ltd., New Delhi with copy to the Head Office of Compact Dental Equipment Private Ltd. at Bangalore and the opposite party-Khanna Enterprises, Chandigarh and Scheduled Caste Finance Corporation, Punjab mentioning therein that two months have passed and till today opposite party had not supplied the chair to him and stated further that four reminders have been sent by him to M/s. Khanna Enterprises, Chandigarh and only the last reminder has been replied to wherein three weeks time has been demanded for the supply of dental chair and the said period is also over. He further stated that inauguration of his clinic is stated to be for 29.8.93 and the invitation cards have been distributed for the purpose and it would be very embrassing for him if said dental chair is not supplied to him at the earliest. THE Confident Dental Equipment Pvt. Ltd., Bangalore replied to the complainant vide Annexure A/6 dated 19.8.93 that M/s. Khanna Enterprises, Chandigarh has not booked orders for the supply with Head Office at Bangalore and the booking might have been made through Regional Office, New Delhi and if there has been some lapse, that office had no information. THE complainant was further informed that they are writing to the Delhi Office to look into the matter. Vide Annexure A/7 dated 24.8.93, Dental X-ray machine with some other Dental material was supplied. Vide Annexure A/8 dated 25.8.93, the complainant wrote that inspite of the payment made in advance on 3.6.93, till today, he has not been supplied dental chair(Confident Compact Clinic) and he mentioned therein that he would seek the help of Consumer Forum, Chandigarh and alongwith the letter Annexure A/8, he attached the copy of the order dated 12.6.93, Annexure A/3 which has been disputed by the opposite party. It is worthwhile to mention here that the case of the complainant is that vide Ex. A/3 dated 12.6.93 the complainant has placed a detailed order in writing for the supply of items mentioned therein for which he had deposited a Cheque of Rs. 1,00,000/- drawn in the name of the opposite party on 3.6.93. It is stated that dental chair which is not ''Confident Compact Clinic'' was delivered by the opposite party on 28.8.93. On notice being served, the opposite party filed its written version before the District Forum, inter-alia alleging that the District Forum, Ropar has no jurisdiction to try the complaint and the earlier complaint filed by the complainant in the competent District Forum at Chandigarh has been withdrawn by him and that the copy of the order dated 12.6.93 is forged one. It is further stated that the complainant took the dental chair of the Lucknow firm on 28.8.93 himself from the opposite party at Chandigarh and the said chair was installed by the Technician, Shiv Kumar at Kurali on the request of the complainant and he was fully satisfied with the delivery of the dental chair of the Lukhnow firm. However, it is admitted that after some time, the complainant did make the complaint regarding the working of the dental chair and the opposite party contacted the complainant personally in the first week of Sept.,1993 to remove the defect if any, in the dental chair but the complainant told the opposite party that he had filed the complaint before Consumer Forum at Chandigarh and would settle the matter in the Court.

The District Forum, Ropar afforded due opportunity to the parties to lead their evidence. The opposite party adduced the affidavit of Sh. Neeraj Khanna, Sole Prop. of M/s. Khanna Enterprises, Ex. R/6 and affidavit of Shri Shiv Kumar, Technician, Ex. R/7 and the complaint filed before the District Forum, Chandigarh Ex. R/l dated 1.9.93 and order R/2 dated 15.9.93 vide which the District Forum, Chandigarh permitted the complainant to withdraw the complaint with permission to file the same in the District Forum, Ropar and bill Ex. R/3(A/7) dated 24.8.93 and bill Ex. R/4 dated 28.8.93 (A/ 9) and Ex. R/5 dated 27.8.93 vide which the reply to the notice Ex. A/8 dated 25.8.93 was sent. The complainant Dr. Manjit Singh appeared in the witness box and he was examined by the District Forum (Statement A/1) and the opportunity of cross-examination was afforded to the opposite party.

TO begin with Mr. Sethi, learned Counsel for the appellant/opposite party took up the sentimental jurisdictional plea that the District Forum, Ropar has no jurisdiction to try the present complaint and hence the order under challenge, passed by the District Forum, Ropar is without jurisdiction. On merits, learned Counsel contended that on the request of the complainant himself the dental chair of Lucknow firm was delivered by the opposite party and the complainant himself contacted Shri Shiv Kumar, Technician and took the dental chair in Tempo from Chandigarh to Kurali and on the asking of the complainant himself, the said Shiv Kumar installed the dental chair and the complainant was fully satisfied with the installation of the machinery and hence estopped by his conduct from pursuing the present complaint. Dealing with the strenuous primal jurisdictional objection, Mr. Sethi submitted that dental chair has been supplied to the complainant at Chandigrah vide bill Ex. A/9 dated 28.8.93 and it has been specifically mentioned on the bill "subject to Chandigarh jurisdiction only". Moreover, the order was booked at Chandigarh, and the payment was made at Chandigarh. and the delivery was also made at Chandigarh and the opposite party carries on its business at Chandigarh and hence pleaded for exclusive jurisdiction of the Chandigarh Forum. The learned Counsel referred to the affidavit of Nerraj Khanna Ex. R/6 and Shiv Kumar, Ex. R/7 stating that delivery of the dental chair was taken by the complainant himself at Chandigarh.

MR. Rajesh Khurana, learned Counsel for the complainant-respondent while referring to the statement of AW 1 Dr. Manjit Singh, complainant with equal vehemence replied that the goods i.e., dental chair was supplied by the opposite party at Kurali and it was partially installed by the opposite party at Kurali and it was partially installed by the opposite party itself. Hence a part of cause of action has accrued at Kurali which falls within the territorial jurisdiction of District Forum, Ropar and hence the order of the District Forum, Ropar is faultless. Section 11(2) Clause (c) of the Consumer Protection Act, 1986 envisages that the complaint can be instituted in the District Forum, within the local limits of whose jurisdiction the cause of action, wholly or in part, arises. It is not disputed that Kurali falls within the local limits of District Forum, Ropar. There is no gain-saying that in the case of contract for the sale of goods, the place where the goods have to be delivered is the place of performance and the District Forum of that place will have the jurisdiction to entertain the complaint. It is not disputed that the contract for supply of the goods is F.O.R. at Kurali and even if it is so, unambiguously and categorically from the quotation Annexure A/2 dated 3.6.93. For the reasons hereinafter recorded, we have dis-believed the statement of Neeraj Khanna and Shiv Kumar. Otherwise, also nothing cogent and convincing evidence has been brought on record to suggest that why in the face of contract of supply of goods F.O.R. at Kurali the complainant would take the delivery at Chandigarh at his own costs and more so when the freight charges of the alleged tempo, as per the case of the opposite party itself has not been demanded or adjusted till today. Such a submission must boomerang on the appellant''s plea. By placing reliance on the judgment reported as AIR 1989 SC 1239 titled A.B.C. Laminart Pvt. Ltd. v A.P. Agencies, Shri Sethi submitted that where there may be two or more competent Courts which can entertain a suit, consequent upon, a part of the cause of action having arisen there within, if the parties to the contract agreed to vest jurisdiction in one such Court to try the dispute, if any and in that eventuality, it is that Court alone which shall have the jurisdiction.

REFERRING to the bill Ex. A/9 dated 28.9.93 it is vehemently urged by the learned Counsel that it is the Chandigarh District Forum alone which has the jurisdiction to entertain and try the complaint. To cement his repeated protected plea it was mandatory upon the opposite party to prove that the parties to the contract had agreed to vest the jurisdiction in Chandigarh District Forum alone. The words "subject to Chandigarh jurisdiction only" printed at the top of the bill, could not be said to become a part of the contract unless it was agreed to specifically and explicitly so. Where a right to file a complaint in a particular Consumer Forum is canvassed, then it is necessary that such term in the contract must be specifically brought to the notice of the other contracting party. It is no where the case of the opposite party that at the time of issuing a bill Ex. A/9, it was categorically brought to the notice of the complainant that in the case of dispute, the Chandigarh Courts alone will have the jurisdiction. There is nothing on the record to infer that the complainant even remotely consented to such a unilateral ouster clause in the printed bill. Otherwise also the ouster clause has to be proved strictly by the party, who is placing reliance on the said clause.

THE reading of the Supreme Court judgment does not fortify the case of the opposite party in any manner. Having failed to prove the agreement to confer the jurisdiction on Chandigarh Courts alone, the ferocious contention raised falls under its own weight. THE Hon''ble Supreme Court in A.B.C. Laminart Pvt. Ltd. case (supra) has authoritatively held that "the performance of a contract is part of cause of action and a suit in respect of the breach can always to be filed at the place where the contract should have been performed or its performance completed". As stated above as per the agreement of the parties, the supply was to be made at Kurali and as per the statement of the complainant, the supply in fact was made at Kurali and hence irrefutably and manifestly we do not find any modicum of merit in the contention of the learned Counsel for the opposite party that the District Forum at Ropar has no jurisdiction to entertain the complaint. Plea apparently looking to be attractive proved to be shallow. All that glitters is not gold. In any case, no prejudice has been exhibited by filing the complaint at Ropar instead of Chandigarh. Referring to the statements of Neeraj Khanna and Shiv Kumar and the averments in the written statement, Mr. Sethi canvassed that dental chair of Lucknow firm was supplied at Chandigarh on complainant''s request and on his asking the opposite party referred him to Shiv Kumar, Technician who installed the chair at Kurali and the items sold were brand-new items. When some complaint was made regarding the working of the dental chair, the opposite party personally contacted the complainant in the first week of Sept., 1993 to remove the defect but the complainant flatly refused to have the services of the opposite party and threatened to have the dispute settled in the District Forum, Chandigarh. The learned Counsel speciously put that the complainant has filed the complaint at Chandigarh and later on withdrew it and for not disclosing in the complaint the said facts of filing and later on withdrawing he has not approached the Consumer Forum with clean hands. The learned Counsel further submitted that the complainant has forged the letter Annexure A/ 3 dated 12.6.93 vide which the complainant alleges to have placed an order for the supply of the items detailed therein.

From the facts narrated above, it is proved to the hilt that payment of Rs. 1,00,000/- was made to the opposite party in advance on 3.6.93. The contract between the parties was for the supply of dental chair with Confident Compact Clinic with attached unit. Inspite of the various reminders sent the opposite party could not arrange the supply of the agreed dental chair (Confident Compact Clinic) which was being pressed throughout, the complainant wrote to the Confident Dental Equipment Pvt. Ltd. on 16.8.93 with copy to the opposite party, Ex. A /8 dated 25.8.93 has been sent by the complainant to the opposite party inter alia enumerating that there has been undue delay in the supply of dental chair (Confident Compact Clinic) and he has made the advance payment on 3.6.93. Ex. A/8 dated 25.8.93 is alleged to be answered by the opposite party vide Ex. R/5 dated 27.8.93. R/5 makes interesting reading. The complainant is resident of Kurali, where the said letter Ex. R/5 has been addressed to him at altogether different station at Morinda, District Ropar. In the said letter, it has been stated by the opposite party that he had been making best efforts to arrange clinic dental chair. Obviously efforts have to be for confident mark. From the facts and circumstances narrated above cast iron case is that persistent urge of the complainant is to have the Confident Compact Clinic dental chair. Nothing has been brought on the record to make us believe that the complainant would ever agree for supply of any other dental chair instead of Confident Compact Clinic. In the cross-examination it has not been suggested to complainant that he had ever agreed for the supply of Lucknow chair or that Lucknow chair was supplied to him at his request. Irresistible conclusion is that chair supplied has been taken on his own by the opposite party to Kurali.

THE contention of the learned Counsel for the opposite party that the letter dated 12.6.93 Ex. A/3 has been forged by the complainant on the face of it is falacious one. THE complainant has referred the letter dated 12.6.93 in his letter Ex. A/5 dated 16.8.93 addressed to the Confident Dental Equipment (P) Ltd. with copy to the opposite party. THE opposite party has not bothered to attend the letter dated 16.8.93. THE letter dated 12.6.93 again finds mention in his letter Ex. A/8 dated 25.8.93 addressed to the opposite party the receipt of which is not denied. Rather the facts seem to be otherwise. Reply Ex. R/5 dated 27.8.93 to the letter Ex. A/8 seems to have been forged by the opposite party. THE said letter has been fabricated only to cover up the threat of the complainant in his letter dated 25.8.93 to approach the Consumer Forum. THE letter Ex. R/5 is stated to have been sent under postal certificate (UPC). THE opposite party who have received total consideration of Rs. 1,00,000/- in advance on 3.6.96 would hardly rest contended to send the reply under UPC. Equally untenable is the plea of the learned Counsel for the opposite party that the complainant has not approached before District Forum with clean hands by concealing earlier litigation. Having the permission from Chandigarh District Forum to approach District Forum, Ropar the contention has lost its moorings. Be it may, it is not going to effect the merits of the case in any manner.

EQUALLY devoid of merit is the contention of the learned Counsel for the opposite party that the District Forum should have nonsuited the complainant for not disclosing the fact of issuance of two bills in the complaint as the same were mentioned in the complaint filed before the District Forum, Chandigarh. It is no where the requirement of law that evidence which is to be led is required to be pleaded. It would be inequituous and unjust to permit the opposite party to raise such hypertechnical plea in adjudication of the matter under Consumer Proection Act, 1986. As we have held that the agreement between the parties was to supply Confident Compact Clinic chair and the complainant was supplied some other chair, which was not agreed to by the complainant, and inspite of the various efforts, being made throughout the complainant was not supplied the agreed chair, and even the opposite party did not offer to return the amount acceptcd on 3.6.92, coupled with the fact that nothing has been brought on the record to indicate that the opposite party was ever in a position to supply a Confident Compact Clinic chair or it ever made any serious attempt to supply and arrange the said chair, the inescapable conclusion is that the complainant has been duped by the opposite party. Man may tell lie but circumstances never. It is not quantity of evidence but the quality thereof, that matters. It is admitted case of the opposite party that the complainant contacted Shiv Kumar, Technician through them. Shiv Kumar is in the allied trade to the trade of the opposite party. In the natural course of things, they are dependent upon each other for their business activities. We have no option except to hold that Shiv Kumar and his evidence has been procured and the tenor and the text of his affidavit is also pointer to this. His evidence that he had gone to Kurali to instal the chair on the request of the complainant and on the installation of the dental chair, the complainant was quite satisfactory is untrustworthy. Consequently, we hold that the opposite party has indulged in rendering unfair trade practice and dental chair supplied by him is held to be defective one and so has been rightly held by the District Forum.

THE learned Counsel for the opposite party has lastly contended that the District Forum, Ropar has illegally passed the order for the refund of Rs. 4,850/- as balance from payment of Rs. l, 00,000/-.Itisnotdisputed that the total amount as per the bills Ex. A/7 is Rs. 56,650/- and A/9 is Rs. 38,500/- and total becomes Rs. 95,150/- and the payment of Rs. 1,00.000/- was made on 3.6.93 and hence the balance of Rs. 4,850/- was rightly due from the opposite party. We don''t feel that Rs. 15,000/- towards compensation including costs awarded by the District Forum was in any was excessive or arbitrary. It is quite proportionate to the facts and circumstances of the case. Concommitently, we dismiss this appeal and put our seal of approval upon the order of the District Forum, Ropar dated 25.4.96 vide which the opposite party have been directed to refund Rs. 35,000/- as principal amount of the dental chair plus Rs. 4,850/- as balance from payment of Rs. 1,00,000/- with interest at the rate of 18% from 28.8.93 till actual realisation and to pay Rs. 15,000/- towards compensation cum costs. THE said amount be paid within one month from the receipt of the copy of this order. However, it is made clear that the opposite party would be at liberty to remove the dental chair from the clinic of the complainant at their own expense as ordered by the District Forum. In addition to reliefs granted by the District Forum, we burden the opposite party for the costs of this appeal which are quantified at Rs. 3,000/- Appeal dismissed with costs.