INDIAN PHYTOCHEM Vs. ABHIJIT GHOSH

JUDGEMENT

(1.) This complaint has been filed by M/s. India Phytochem through its Director Sh. Samir Rathi against Sh. Abhijit Ghosh, Basic and Synthetic Chemicals Ltd. for recovery of a sum of Rs.3,35,000/- (Rupees three lacs thirty five thousand) along with pendente lite and future interest @ 24% and Rs.10,00,000/- (Rupees ten lacs) as compensation along with cost of the proceedings.

(2.) The brief facts of the case are that the complainant planned to instal a plant for production of herb powder, at F-19, Industrial Area-2, Hardwar (Uttaranchal) and the opposite party pretended to be most competent concern for manufacture and supply of Lyophilizer and Hot Oven Drier. The complainant placed the order for manufacturing and supplying of these items vide their order letter No.1411/ipc dated 14.11.2000. The opposite party signed an agreement on a non-judicial stamp paper of Rs.100/- (Rupees hundred) for his acceptance and to remain faithful for completing the desired job with desired quality and without delay. The opposite party personally collected from complainant's Hardwar office, the order along with a Bank Draft of Rs.1,50,000/- (Rupees one lac fifty thousand) being the 30% advance payment as per payment terms of the order. The delivery of the equipment was to be made by the opposite party within 6 weeks from the date of placing of the order and its commissioning was to be done within a week. Therefore, the entire work was to be completed by the first week of January 2001.30% of payment was to be made after successful trial and testing of the equipment and 30% after safe delivery of the equipment at Hardwar and remaining 10% was agreed to be made after successful commissioning and successful running of the equipment. It was agreed that the complainant will have reasonable access to the works during manufacturing and testing. After 2 weeks of the placing of the order, Sh. Bishwajit Mukherji was contacted on telephone but he avoided the joint checking of fabrication of equipment. He assured that the equipment shall be installed and commissioned much before the time given in the order. The opposite party however expressed dire necessity of funds and pressed for release of more payment so that manufacturing could be done. The complainant further paid a sum of Rs.1,00,000/- (Rupees one lacs) as desired by the opposite party. The complainant pressed the opposite party to give a convenient date for joint inspection but he did not hear and said that there is absolutely no reason for the complainant to worry. The complainant could know subsequently that the opposite party does not have any manufacturing unit of his own. He informed that he has got fabricated the equipment at the works of somebody else where for trade secrecy reasons, he cannot arrange free acess of the complainant. The opposite party told that the equipment is ready, it is to be despatched but he does not have money to pay the sales tax and transportation charges and insisted for payment of Rs.50,000/- (Rupees fifty thousand ). He promised that he will come and commission all the equipment at Hardwar in the next week. Under the compelling circumstances, the complainant again paid a sum of Rs.50,000/- (Rupees fifty thousand ). All the payments were acknowledged by the opposite party.

(3.) The opposite party despatched some equipment from Kolkata on 11.3.2001. After unloading of the package from the truck, it was immediately informed back to the opposite party by the complainant that although he was not associated with the testing of equipment at Kolkata but the report of testing by the opposite party has not been sent separately or along with the delivery challan as per terms and conditions of the order. They were informed that unless entire information about the drawings is given, the complainant is not to proceed with equipment. The packages received at Hardwar could not be uncovered, as it was not possible to ascertain the safe delivery of all items without tallying these with the individual item, drawing and bill of material. Instead of commissioning the equipment, the opposite party started demanding Rs.53,000/- (Rupees fifty three thousand ). On 29.6.2001, the complainant informed the opposite party in writing that the packages could not be open because they have not been tallied. The complainant pressed the opposite party to come to Hardwar and to get open the packages in his presence and also to fulfil the contractual obligation of installation and commissioning but the opposite party did not turn up. But instead of turning up at Hardwar, the opposite party demanded a payment of Rs.2,25,350/- (Rupees two lacs twenty five thousand three hundred fifty ). The opposite party did not allow the joint inspection, it did not send the specifications, and it did not submit the drawing and other information. The opposite party has caused a great loss and mental agony to the complainant, hence the complainant filed the complaint. The complainant has alleged that he has paid Rs.3,35,000/- (Rupees three lacs thirty five thousand) on different dates. Receipts are already on record and he has claimed refund of this amount along with interest @ 24% and compensation of Rs.10,00,000/- (Rupees ten lacs ).