INDUSTRIAL DEVELOPMENT BANK OF INDIA Vs. KRISHNEMDU GHOSH

JUDGEMENT

(1.) THE opposite party who has suffered a decree in the O.P., is the appellant. The case of the complainant is that on 29.4.92, he purchased a refrigerator from the opposite party -Company for a sum of Rs. 9,400/ - and the opposite party promised to effect door delivery of the refrigerator but they did not do so inspite of demands. The complainant issued a legal notice, Ex. A 2 dated 3.8.93 which also proved futile. On these grounds the complainant has claimed for refund of the sale price of Rs. 9,400/ - with interest at 24% per annum and also a sum of Rs. 5,000/ - as compensation.

(2.) THE opposite party contended that even on the date of sale, the complainant had taken delivery of the refrigerator and it is false to allege that the opposite party has promised to effect door delivery. It is further contended that they have duly replied to the legal notice issued by the complainant.

(3.) AFTER carefully considering the circumstances of the case, we are of the view that the order of the District Forum cannot be sustained. Admittedly the sale was on 29.4.92 on which date the complainant had paid a sum of Rs. 9,400/ - for the refrigerator. The legal notice has been sent by the complainant alleging non -delivery of the refrigerator only on 3.8.93 i.e., one year and 4 months after the sale. It is highly improbable and unbelievable that a person who has paid as much as Rs. 9,400/ - for purchasing the refrigerator would have waited for such a long time expecting door delivery. Therefore, the case of the complainant is difficult of belief. During the arguments we were told by both sides that the shop of the opposite party is in Purasawakkam and the residence of the complainant is also there. The complainant is living so near to the shop of the opposite party. This is another reason that renders it difficult to believe the case of the complainant. It is true that the complainant has sent a notice through his Lawyer on 3.8.93. Regarding this, the opposite party would say that they have sent their reply to this notice and a copy of that reply is marked Ex. B -l dated 27.8.93. As regards this reply, the lower Forum has commented that no acknowledgement for service of this reply has been filed and therefore, it cannot be believed. But it is submitted by the learned Counsel for the appellant/ opposite party that the reply was served on the Counsel for the complainant and he has acknowledged the notice. We find therein some endorsement of acknowledgment. Of course it can be argued that for this acknowledgement there is no proof. That may be so, but at the same time, it cannot be definitely said that the alleged acknowledgement is false. Considering all these circumstances, we hold that the case of the complainant that the refrigerator has not been delivered cannot be believed.