S K GOYAL Vs. WIPRO INFOTECH LIMITED

JUDGEMENT

(1.) This order shall dispose of the Compensation Application bearing No. 136/92 filed under Sec. 12B of the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as the Act) by Shri S.K. Goyal (hereinafter referred to as the applicant), against M/s. Wipro Infotech Limited, Bangalore (hereinafter referred to as the respondent). The brief facts of the application are : that the applicant on 23.3.1992 booked an order with the respondent for supply of one GN 486-200/4MB. lX1.2MB/MONO, 25IP(25MHZ) alongwith LQ1050+DMP 24 PINS (295 CPS) Printer, vide Order No. 25821 dated 23rd March, 1992. The total cost (all inclusive) amounting to Rs. 2,19,148.80 was paid by the complainant to the respondent in advance by Cheque No. 326561 dated 28th March, 1992 drawn on Canara Bank, Asaf Ali Road, New Delhi; that at the time of booking of the above order the applicant made it clear to the respondent that the delivery of the hardware booked by him in terms of the order would be made by the respondent directly to the applicant as "factory packed" and that no intervention of any middleman would be there at all; that the condition was the essence of the contract which was imposed by the applicant and was duly accepted by the respondent for the reason the applicant had by cogent evidence as supplied to him by certain persons who had purchased similar hardware from the respondent; that the products, if delivered through its dealer, did not reach the purchasers in the same condition and that the original parts were found to have been replaced and/or tampered with; that the booked products were to be delivered direct by the respondent is manifest from the fact that "shipment address" on which the ordered goods were to be despatched was specifically demanded; that the stipulation that the goods should be despatched by the respondent to the applicant directly from its factory at Bangalore also became necessary for the reason that the applicant had itself bitter experience of dealing with the respondent earlier in 1991 when the applicant had purchased hardware from the respondent and in spite of the similar instructions given by the applicant as "factory packed" and the "shipment address" given in the order itself; that the machine booked by the applicant was despatched by the respondent to one of its dealer in Delhi which has changed through forgery the nature of booking to its own advantage and to the detriment of the applicant and at that time also this trade practice of the respondent was repeatedly brought to the notice of the respondent but no action was taken by him against the dealer concerned; that despite the clear-cut condition the machine booked by the applicant in terms of the order was despatched by the respondent to one of its dealers in Delhi, viz. Computer wares New Delhi and not directly to the applicant; that soon this fact came to the notice of the applicant through the dealer; a letter dated 24.4.1992 was sent to the respondent in this regard; that in the said letter it was made clear that in case the goods are not delivered directly the order may be cancelled and the payment made by the applicant be refunded with interest at 30% per annum upto the date of refund beside the right of the applicant to claim damages and losses suffered by the applicant due to negligence/action of the respondent; that no reply to the said letter dated 24.4.1992 was received by the applicant from the respondent; that the applicant got issued the legal notice dated 1st June, 1992 through its Advocate to the respondent in this regard that the applicant has not received any reply from the respondent to the legal notice and it appears that the respondent is neither willing to deliver the goods in the stipulated manner nor cancelled the order and refunded the money with interest.

(2.) On the basis of the above facts the applicant has alleged that the action of the respondent in having received the full amount of Rs. 2,19,148.80 from the applicant on the specific representation that ordered goods would be delivered in a particular manner; that condition and packing and not fulfilling the condition as per the representations clearly tantamount to making misleading and false statement and in doing so the respondent has indulged in the unfair trade practices set out in Clauses (i), (ii) and (iii) of Sub-section (1) of Sec. 36A of the M.R.T.P. Act, 1969. The applicant has also alleged that on account of the unfair trade practices, it has suffered loss and injury which the respondent is liable to compensate the applicant. The applicant has claimed the compensation as under : <FRM>JUDGEMENT_54_CPJ3_2000_1.html</FRM>

(3.) The respondent has filed the reply to the said compensation application and taken certain preliminary objections in which it has been stated that by no stretch of arguments, the allegation as made out in the complaint constitutes unfair trade practice because as per applicant own admission he had refused to take the delivery of the goods, when informed that the goods had been airlifted from Bangalore to Delhi and were lying in the godowns of respondent at Delhi. The respondent on merit has taken the contention that the order for the supply of goods was placed and booked in the order form which contains the complete details of the supply of goods as also the configuration price, etc. of the goods; that at the time of placing the order the applicant has put the signature in the column meant for that purpose; that there was no specific condition other than those mentioned on the order form; that the respondent supplied goods to the customers in factory packed condition and, therefore, there was no condition laid or required to be made on the order form itself; that while booking the order for supply of goods, the applicant had not put a condition that no intervention of the middleman would be there and as a matter of fact the respondent does not engage in intermediary or middleman in the sale and supply of goods to the customer; that the sale and supply of the goods is, therefore, direct from the respondent; that the respondent has denied that any such condition for supply of goods as alleged by the applicant was imposed by the applicant and/or accepted by the respondent; that the respondent has not encountered any complaint from any dealer that any of its dealer had replaced parts from the original computers; that as per the practice and system adopted by the respondent it is always factory packed goods which are supplied by the Company or through its agent, employees or dealers or transporters; that as per the terms and condition 1 (a); the price as stated in the order form was CIF destination; it is submitted as a routine the goods are despatched by the respondent from its factory at Bangalore to the station of destination and on the information of the arrival of the goods, the respondent or its dealer through whom the goods were booked would collect the goods for delivery to the customers; that the computer was booked from Bangalore in the name of the applicant, but as per the general practice of the respondent in terms of Clause 2(b) of the terms and conditions mentioned in order form itself, the dealer through whom the goods were booked being authorised collected the goods covered under the order from the carriers for delivery to the purchaser; that the order form was filled by the dealer, the payment was made by the applicant through the dealer and the installation of the computer as a matter of fact was to be done by the dealer. Thus the whole transaction was through the dealer; that as per the terms and conditions of the order form it was specifically agreed that Air-way Bill (AWB) etc. will be sent by the respondent to the dealer directly; that as per the terms of the contract the dealer was duly authorised and empowered to take delivery of the consignment booked by the respondent from Bangalore to Delhi in the name of the applicant and it was the job of the dealer concerned to deliver the goods to the applicant; that when the goods landed at Delhi, the dealer concerned informed the applicant about the arrival of the goods in Delhi so that the same could be delivered at the given address of the applicant; that as per respondent understanding the applicant made unwarranted and unfounded allegations that the dealers replace the original parts in the computer to the disadvantage of the purchasers; that the officials of the respondent thereafter approached the applicant to find out the cause of its refusal of taking the delivery of the goods but to their great surprise the applicant had point blank refused to accept the same because the applicant suspected that the computer had been tampered with by the dealer by replacing the genuine parts with the duplicate parts; that such a perversity in thought on the part of the applicant was beyond reasonable comprehension; that the letter of the applicant was addressed to the Bangalore office and forwarded to Delhi with directions to once again request the applicant personally to take the delivery of the machine which was lying in the godown of the respondent at Delhi; that the officials of the respondent called on the applicant to persuade him to accept the machine as his allegations are wholly imaginary and baseless; that nothing could prevail upon the applicant and instead he threatened the respondent of taking the matter to the Court/this Commission; that the respondent could hardly do anything in the circumstances and the applicant was informed that the ordered goods were lying intact in original condition at respondent godown and he should agree to the installation of the same, but without any success; that the property in goods has already been passed to the applicant, who is not taking delivery and causing undue harassment and loss to the respondent and in turn the applicant is liable for demurrage for which the respondent reserve his right to take appropriate action against the applicant; that since goods have been sold to the applicant it is not possible to cancel the order and refund the amount and it was most unreasonable on the part of the applicant to have refused taking delivery of the goods. The respondent has denied that the provisions of Clauses (i), (ii) and (iii) of Sub-section (1) of Sec. 36A are attracted in the facts and circumstances of the case and the applicant is not entitled to any compensation as claimed for in the compensation application and the complaint may be dismissed with exemplary cost.