SRI GANESH PLYWOOD AGENCIES vs ARASU AUTOS

THE opposite party Sri Ganesh Plywood Agencies, Trichy against whom an award has been passed by the District Forum are the appellants. According to the complainant Arasu Autos, Thanjavur, it placed an order with the opposite party for purchase of Mica Sheets Plywood of the description 0.8 mm, 8 x 4 of 15 numbers and 6 mm Plywood, 8 x 4 of 2 numbers and paid the sale price of Rs. 7,150/- and the opposite party gave a receipt for the same and promised to deliver the goods to the complainant at Thanjavur within 2 days. THE opposite party delivered a consignment on 15.10.1994 but it was of inferior quality and not of the description indented by the complainant and the cash bill sent by the opposite parties mentioned only Rs. 1,330/-. Due to lack of supply of the material ordered, the work of decorating the office cabin of the complainant was left unfinished resulting in considerable hardship and mental agony. Even after the complainant sent a notice, the opposite party have not delivered the goods purchased. On these allegations the complaint was filed for directing the opposite party to pay the value of the goods undelivered being Rs. 5,820/- and also damages of Rs. 40,000/- and Rs. 5,000/- for mental agony and hardship.

THE opposite parties contended inter alia that the allegations of the complainant that on 10.10.1994 it placed an order for supply of goods of the description given in the complaint and a sum of Rs. 7,150/- was paid and the opposite party gave a receipt and the opposite party undertook to deliver the goods in 2 days are all false. It is further contended by the opposite party that on 15.10.1994 the complainant came to the shop of the opposite party and purchased goods under Cash Bill No. 4286. THE goods were selected by him in person and delivery was made to him in the shop of the opposite party itself. THErefore, there is no point in the complainant making any claim from the opposite party. THE complaint is frivolous and hence it is liable to be dismissed with costs. The District Forum on consideration of the evidence came to the conclusion that the case of the complainant is true. On this finding it passed an order directing the opposite party to pay the complainant the amount claimed of Rs. 5,820/- as the balance of the sale consideration with interest thereon @ 18% p.a. from 10.10.1994 till date of payment. It also ordered the opposite party to pay a compensation of Rs. 2,000/- and cost of Rs. 500/- to the complainant.

Now in the appeal it is contended by the appellant/opposite party that the order of the District Forum is against the evidence in the case and it is not sustainable. After careful consideration of the matter we find that there is much force in the said submission. According to the complainant on 10.10.1994 he paid a sum of Rs. 7,150/- upon placing an order for supply of goods and the opposite party gave the receipt Ex. Al. But the opposite party denies that he gave any receipt like Ex. A1. Therefore the complainant has to prove the genuineness of this document. The contention of the other side is that only on 15.10.1994 the complainant purchased goods described in the written version for Rs. 1,330/- under cash bill Ex. A2. Ex. A2 is a printed one bearing the name and particulars of the opposite party. Ex. A1 is not like that but it is only in a small old piece of paper. What is important is that the initial, which is supposed to be of the opposite party therein, is vastly different from the admitted initial of the opposite party in Ex. A2. Yet another important circumstance is that whereas the goods had been supplied to the complainant on 15.10.1994 which according to him is not in accordance with the size and measurements ordered, the complainant has not chosen to refuse to take delivery or immediately write to the opposite party about their conduct but he has only on 23.11.1992 i.e., 37 days long after, has preferred to send a lawyer notice Ex. A3 to the complainant. These circumstances strongly militate against the case of the complainant. It is however stated by the District Forum that Ex. A1 receipt contains a seal which is similar to the seal contained in Ex. A4. Acknowledgement Card signed by the opposite party. That may be so. But the question is: can it be, only on the basis of the similarity of the seals, said that Ex. A1 was given by the opposite party. It is not difficult to prepare a seal like that and possibility of stamping of the seal in Ex. A-1 obtained fraudulently cannot be ruled out. It my be noted here that the opposite party has promptly sent a reply Ex. A5 dated 29.11.1994 to Ex. A3 notice. The complainant has filed Ex. A7 as the Delivery Challan of Lorry No. TN-37 D 8190 Jayalakshmi to show that on 15.10.1994 the opposite party has sent a consignment through the said Lorry to the complainant. But no one has been examined regarding this document and therefore without evidence of any one from Jayalakshmi Lorry Service it is difficult to believe that Ex. A7 is a true one. Further in the first affidavit of proof filed by the complainant it had been first stated that the consignment had been sent by the opposite party through goods carrier by name Mooventhan Lorry Booking Service in Lorry No. TN 49 0252, and then the lorry number has been corrected by ink as No. TN 37D 8190 Jayalakshmi. Considering all these we are clearly of the view that on the basis of the evidence available in the present proceedings it is not possible to accept the case of the complainant and the proper Forum for him would be the Civil Court where elaborate evidence can be recorded and considered.

IN this view of the matter, we allow the appeal; set aside the order of the District Forum and dismiss the complaint. We give liberty to the complainant to file a civil suit. IN case such a suit is filed we believe that the Court will consider the time taken in the District Forum and in this Commission for the purpose of limitation. Pulavar V.S. Kandasamy, Member-I regret that I do not agree with the majority order in so far as the reasons given for allowing the appeal and dismissing the complaint. The complainant is a dealer in Bajaj Autos and is having office-cum-show room at Thanjavur and it is represented by its Managing Director. The goods, which are the subject matter of dispute in this case, were purchased for the purpose of decorating the office premises of the complainant.

IT is not the case of the complainant that the said business is for self-employment. There is not even a whisper either in the complaint or during the proceedings before the District Forum or the Commission that the case of the complainant comes within the ambit of the explanation of Section 2(1)(d) of the Consumer Protection Act, 1986. In the District Forum''s order it is clearly stated that "The complainant purchased the same (the goods) for the purpose of decorating the office room". Therefore, it goes without saying that the goods were purchased for the purpose of the complainant''s trade or business. As the goods were not purchased for personal use the complainant is not a consumer within the meaning of Section 2(1)(d)(I) of the Consumer Protection Act, 1986. In its well considered order, the District Forum, after examining in detail, the evidence available on record, observed that the very same round seal of the appellant/opposite party, which appears on the Ex. A1 receipt, issued by the appellant/opposite party, also appears on the postal acknowledgement for the receipt of the complaint, given by the appellant/opposite party. This has totally belied the contention of the appellant/opposite party that Ex. A1 receipt was not issued by it. It is pertinent to mention that the case of the respondent/complainant is based on the fact that Ex. A1 receipt was issued by the appellant/opposite party evidencing the purchase of the defective material. Hence, the District Forum has held that it has been established beyond doubt that the defective goods were indeed sold by the appellant/opposite party. It is common knowledge that in the line of business in which the appellant/opposite party is engaged, printed bills are not issued in every case of sale. Very often, receipts on bits or slips of paper, with a rubber stamp affixed on them, are issued for the sale of goods. Hence, there is nothing to disbelieve the genuineness of Ex. A1 receipt, except the self-serving statement of the appellant/opposite party. That being the case, I do not understand how a slight difference in the dates of purchase, even if it is presumed to be so, is going to help the appellant/opposite party. In the course of his arguments before the Commission, the learned Counsel for the respondent/complainant contended that the act of the appellant/opposite party will clearly fall under the definition of "unfair trade practice", as defined in Section 36A of the Monopolies and Restrictive Trade Practices Act, 1969, apart from the fact that the appellant/opposite party is also guilty of supplying "defective goods". There is much force in his contention. He has also added that the case of the complainant is clearly covered by the National Commission''s decision, reported in 1992 (2) CPR 213 in the case of "M/s. Indra Fabricators and Others v. M/s. Pineapple Marketing Co-operative Society Ltd."

HOWEVER, as noticed in the earlier part of my order, the goods in the case were purchased for commercial purpose and therefore, the case does not come within the ambit of the Consumer Protection Act, 1986.

HENCE, the appeal is allowed and the complaint is dismissed. The respondent/ complainant can seek his remedy before the appropriate Civil Court. The time taken in conducting the case before the District Forum will no doubt be considered by the Civil Court concerned for the purpose of limitation. Appeal allowed.