Shyamal Kumar Ghosh, Presiding Member

The instant Appeal has been directed against the impugned order dated 31/10/2017 passed by Ld. DCDRC, Alipurduar in connection with CC/28/2016 wherein the ld District Commission concerned allowed the same on contest against the ops no 1 and 2 and ex-parte against op no – 3 and being aggrieved by the said order the present appeal has been filed by the appellants /ops 1and 2

The brief fact of the case is that the ops 1 and 2 both are suppliers and marketing company and op 3 is an authorized agent of ops no – 1and 2. The complainant placed an order in the office of ops 1and 2 on 11/04/2015 for supply of one DG set for domestic purpose with a consideration amount of Rs. 3,20,000/- only. The complainant paid the aforesaid amount of Rs. 3,20,000/- to op no – 1 through a demand draft being no-044823 dated 10/04/2015 drawn on Central Bank of India, Birpara Branch, within the District of Alipurduar. In this respect, the op3, authorised agent of ops 1 and 2, issued a valid receipt in favour of complainant viz. Mr. Ashish Mittal. The cost of DG set of Rs. 3,20,000/- has been financed by the Central Bank of India, Birpara Branch and the matter has already been informed to op GSP POWER PROJECT (RETAIL DIVISION) by the letter dated 11/04/2015.

Before placing the aforesaid order, the complainant, as a partner of Anima Service Station, booked another DG set of same specification on 27/03/2015 in the name of aforementioned partnership firm (Anima Service Station) represented by another partner viz Mr. Bikash Agarwal. The payment has already been made in full on 01/04/2015 and to that effect the two receipts have been issued by the op3 (authorised agent of ops 1 and 2)in favour of Mr. Bikash Agarwal. The said machine has already been installed by ops in Anima Service Station on 19/04/2015. The said machine has been running well since the date of installation and the ops have also been providing proper service through the authorized agent viz. ‘ASCENSION’.

It was the case of the complainant that ops/GSP POWER PROJECT received the amount of consideration of Rs. 3,20,000/- from the complainant on 11/04/2015. But they failed to supply the DG Set to the complainant. The legal notice was served upon the ops on 04/08/2015 but the ops denied the said event by serving a letter dated 27/08/2015 and in reply the ops categorically stated that the DG machine has already been delivered to Anima Service Station.

The complainant also stated that the op3 (agent of ops 1and 2) failed to deposit the total consideration amount of Rs. 3,20,000/- but he deposited only Rs.1,65,000/-. The payment of Rs. 1,55,000/- is still pending and to that effect op no – 1 sent a legal notice to op3 demanding the balance amount of Rs. 1,55,000/- with interest on 07/09/2015. Till date no DG set has been delivered to the complainant causing deficiency in service on the part of ops/GSP Power Projects and as such the complainant knocked at the door of the concerned DCDRC for getting proper relief/reliefs against the ops.

The ops 1 and 2 contested this case by filing written version stating inter alia that the ops received the entire amount of Rs. 3,20,000/- from the complainant through a demand draft being no – 044823 dated 10/04/2015 drawn on Central Bank of India, Birpara Branch and to that effect op3 issued a valid receipt. The ops delivered the DG set to the complainant on 19/04/2015. The complainant signed all the papers and documents on 16/04/2015. The op further stated that Anima Service Station has not paid the entire amount. The op no. 1 only received a sum of Rs. 1,65,000/- in cash. The op3 is bound to pay the rest amount of Rs. 1,55,000/- and to that effect a legal notice has been served upon the op3 on 07/09/2015 with a request to pay the rest amount of Rs. 1,55,000/- to the op/GSP Power Project with interest. The op also averred that the receipt issued against the payment along with assurance to deliver the DG machine to the complainant within 18/04/2015 was totally fabricated story. So the instant case is not maintainable and hence the same is liable to be rejected with cost.

Even after service of notice upon op 3, he did not appear before the Ld. District Commission concerned and hence the case against him has been fixed for ex-parte hearing.

In course of hearing the ld. counsel for the Appellants/ops no – 1 and 2 drew our attention to the observations of the Ld DCDRC and pointed out that the Ld DCDRC concerned completely ignored and overlooked the materials and documents on record while passing the impugned order dated 31/10/2017. Ld counsel also submitted that DG set has already been delivered to the complainant on 19/04/2015 and installed the same at the service station as per address provided by the complainant. The ld counsel further argued that ‘Anima Service Station’ has failed to pay the entire consideration amount to op 1 but it is admitted that the op received only a sum of Rs. 1,65,000/- in cash. There is no negligence on the part of ops 1 and 2 and as such they have prayed for dismissal of the petition of complaint with cost.

In course of hearing the ld. counsel appearing for the complainant/respondent no-1viz. MR. Ashish Mittal submitted that the two orders have been placed before the op 1 for supplying DG machine. One has been delivered and installed at the partnership firm viz. ‘Anima Service Station’ but other machine has not yet been delivered to the complainant though the entire payment has already been made. There is a gross negligence and deficiency in service on the part of ops. Accordingly the complainant is entitled to get relief against the ops as prayed for.

In course of hearing, neither the pro-forma respondent nor his ld counsel was present.

We have heard the ld. Advocates for both sides and perused the materials on record carefully.

Before going to the merit of the case, ld counsel for the appellants pointed out two important issues such as jurisdiction of the ld DCDRC and arbitration clause.

Regarding jurisdiction, it is our opinion that the negotiation between the parties regarding purchase of DG set has been taken place at Birpara within the jurisdiction of District Alipurduar as the consideration amount of Rs. 3,20,000/- has been paid to the ops 1 and 2 through a demand draft drawn on Central Bank of India, Birpara Branch, Alipurduar. So the part cause of action has been arisen within the District Alipurduar. As per section – 11 of the Consumer Protection Act, 1986 the ld District Forum (now DCDRC) can entertain the consumer case on the basis of aforementioned cause of action arose, wholly or in part. Here the ld DCDRC proceeded with the consumer case on the basis of cause of action which arose within the jurisdiction of Alipurduar and as such there is no wrong or illegality on the part of ld DCDRC in respect of entertaining the above referred consumer case.

Regarding Arbitration clause, we can safely rely upon the decision taken by the Hon’ble Supreme Court in M/S- National Seeds Corporation vs M.Madhusudhan Reddy and another, wherein the Hon’bel Apex Court decided that it is an optional remedy whether the complainants may approach before the Arbitrator or they may approach before the Consumer Fora for getting their relief/reliefs as prayed for. Here the complainant has chosen to approach before the ld DCDRC and as such existence of Arbitration Clause is not a bar to resolve the dispute by the Commission. In Dinesh Chand Sharm—Vs—IREO Grace Realtech Pvt. Ltd. reported in IV (2021) CPJ 40 (NC) wherein the Hon’ble National Commission held that in agreement, presence of Arbitration Clause does not bar jurisdiction of Consumer Fora to entertain complaint. Accordingly the Ld. DCDRC does not make any wrong in this respect.

Now we enter into the merit of the case and from the argument advanced by the ld advocates, it is very clear to us that the ops had the liability to deliver and install two DG sets, one for partnership firm viz. Anima Service Station and another for the complainant for domestic purpose.

For the sake of disposal of the matter in order to adjudication of the case, it is very pertinent to decide that whether the aforesaid two machines have already been delivered and installed or not.

From the four corner of the record it is admitted that Anima Service Station is a partnership firm conducted by the two partners namely Mr. Ashish Mittal and Mr. Bikash Agarwal. One Mahindra Powerol silent DG machine was booked for the partnership firm (viz Anima Service Station) on 27/03/2015 which is clearly revealed from offer letter dated 27/03/2015 issued by POWEROL (by MAHINDRA) (Anx-5). Payment was made in full on 01/04/2015 and to that effect op3/authorised agent Mr.Utpal Sarkar issued two receipts. In this respect, Anx-C dated 27/03/2015 and Anx-C1 dated 01/04/2015 reveal that the op3, authorised agent of GSP Power Projects (Retail Division) received Rs. 20,000/- as an advance and Rs. 3,00,000/- respectively ie total consideration amounting to Rs. 3,20,000/- from Mr. Bikash Agarwal against 20 KVA / 3 Phase DG set proposed to be installed at the Anima Service Station. The said machine was installed on 19/04/2015 at the proposed site. The machine has been running well and regular services have also been provided through authorised agent ‘ASCENSION’ which is clearly revealed from the anx- D series. These series of documents also indicate that the particular services have been provided to the customer viz Anima Service station in respect of engine serial no-V3M14x7643.

Mr.Utpal Sarkar, authorised agent of ops 1 and 2 received the full consideration amount of Rs.3,20,000/- from Anima Service Station. But after receiving the same,Rs. 1,65,000/- has been deposited in the credit of the ops 1 and 2 and rest amount of Rs. 1,55,000/- has not been deposited in the credit of ops/GSP POWER PROJECT till date causing loss of goodwill and reputation of the company. The op3 tried to grab the amount of Rs. 1,55,000/- and as such he made an application for resignation from service through mail and for that reason a legal notice dated 07/09/2015 has been sent to op3 with a direction to make payment of Rs 1,55,000/- along with interest which is clearly revealed from the Anx-E/2.

It was the case of the complainant that he placed an order for same specification of DG set in the office of ops 1 and 2 on 09/04/2015 and to that effect Anx-6 ie offer letter Ref being no – GSP/Q1/29/09/04/15 dated 09/04/2015 has been issued by GSP POWER PROJECT ( RETAIL DEVIDION). Complainant paid the consideration amount of Rs. 3,20,000/- to the ops 1 and 2 through demand draft being no- 044823 dated 10/04/2015 drawn on Central Bank of India, Birpara Branch. In this respect op3, authorised agent of ops 1 and 2 issued a valid receipt. Anx – B dated 11/04/2015 acknowledged the full payment of Rs.3,20,000/- and issued a receipt in favour of Mr. Ashish Mittal, the complainant herein. Be it mentioned here that the total consideration amount of Rs. 3,20,000/- has been financed by Central Bank of India for and on behalf of the complainant and in respect of quotation being no-GSP/Q1/29/09/04/15 the matter has been informed to the ops/GSP POWER PROJECTS which is clearly revealed from anx-B1. Thereafter, the ops did not supply the DG machine to the complainant and as such a legal notice dated 04/08/2015 has been sent to the ops with a direction to provide the DG set to the complainant within 15 days from the date of receipt of notice which is clearly reflected in Anx-E. In reply the op no – 1 denied the facts submitted by the complainant and took the plea of delivery of DG set at the premises of Mr. Ashish Mittal, complainant herein by appending his signature to the challan dated 16/04/2015 which is revealed from the advocate’s letter dated 27/08/2015 (Anx-E1).

At the time of hearing ld counsel for the ops 1and 2/appellant relied upon the two documents. One is challan dated 16/04/2015 (Anx-A2, running page no - 84) and other is Field Service Job Card dated 21/11/2015 (Anx-D series, running page no – 50) wherein the ld counsel tried to establish that the DG set has already been delivered to the complainant viz. Mr. Ashish Mittal. But we have meticulously perused the challan dated 16/04/2015 (Anx-A2) as well as field service job card dated 21/11/2015 ie Anx-D series. Now it is clear to us that the aforesaid challan has been prepared in the respect of engine no - V3M14x7643 and the service has also been provided through the authorised agent ‘ASCENSION’ in respect of same engine being no ie V3M14x7643 already installed at the premises of ANIMA SERVICE STATION. Th

e delivery of the DG Set to Anima Service Station cannot be treated as delivery of the same to the Complainant to be installed at his home. So there is no hesitation to hold that the appellant /ops 1 and 2 tired to establish their case mischievously and with malafide intention. It is very much expected that the complainant cannot be suffered for any wrong or fault on the part of ops 1 and 2. Considering the above detailed discussions, it is decided that no DG set has been installed at the home of the complainant after receiving the entire consideration amount of Rs.3,20,000/- causing clear gross negligence and deficiency in service on the part of ops 1 and 2. In the instant case, the ops always tried to deprive the complainant by showing the challan dated 16/04/2015 on which the signature of the complainant has been affixed on 18/04/2015 without any seal. But the ld counsel for the appellant /ops 1 and 2 has failed to substantiate their pleas as stated in their appeal case and as such it is our opinion that there is no such wrong or any irregularity in passing the final order dated 31/10/2017 passed by the ld DCDRC concerned. Hence the order passed by the ld DCDRC concerned is very justified and proper. Accordingly, the instant appeal be and same is dismissed on contest against the complainant/respondent and dismissed ex parte against pro-forma Respondent. No order as to cost.