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Judgment
BEING dissatisfied with the order dated 21/11/1989, passed by the District Forum, Bikaner, the opposite-party has filed this appeal under Sec. 15 of the Consumer Protection Act, 1986 ("the Act" herein). The District Forum has ordered that the opposite-party should pay to the complainant a sum of Rs. 7,364.88 with interest @ 12% p.a. from the date of deposit until payment and also Rs. 1000.00 as compensation. The complainants filed a complaint against the opposite-party-appellant on 7.8.89 before the District Forum Bikaner alleging that the opposite-party is the only local dealer of Massey Ferguson Tractor, that they contacted the opposite-party for the purchase of the aforesaid tractor, that the entire price of the tractor amounting to Rs. 1,24,083.89 was paid by two drafts, the particulars of which are mentioned in para 4 of the complaint and that in lieu of that, receipts ''A'' and ''B'' were issued to them. It has been alleged by the complainants that taking undue advantage of they being illiterate farmers, a ''tehrir'' Ex. C was got executed by the opposite-party. The material part of the ''tehrir'' for the present purpose is as follows:- ...[Vernacular Text Ommited]...
IT is said that the opposite-party did not deliver the tractor within 45 days. The complainants have stated that they are entitled to get the tractor on the price that was prevailing on 24.4.89. i.e. within 45 days from 11.3.89. which according to the complainants is 24.4.89. The price of the Massey Ferguson Tractor was increased from 26.4.89 and the opposite-party was well in know of it that price will be increased and, therefore, it deliberately did not arrange for the supply of tractor within 45 days and made it available on 6.5.89. The cash memo has also been produced which has been marked ''D'' According to the complainants, the increase of the price of the tractor was to the extent of Rs. 7,364.88 and so the price that prevailed on 26.4.89 was Rs. 1,31,448.77. The tractor was delivered to the complainants after paying the increased price i.e. Rs. 7,364.88. The complainants have averred that excess price of Rs. 7,364.88 has been recovered from the complainants by the opposite-party and so this amount together with interest @ 12% amounting to Rs. 2,275/- may be ordered to be paid to them. In para 5 of the complaint, the complainants have stated: ...[Vernacular Text Ommited]... It has been prayed that a sum of Rs. 9,639.88 may be ordered to be paid by the opposite-party to the complainants together with compensation to the tune of Rs. 5,000.00. The opposite-party resisted the complaint on various grounds. It was stated that it did not exercise any undue influence on the complainants for supplying the tractor within 40-45 days. The complainants of their own accord accepted the condition that delivery may be given within 40-45 days and after that put the signatures on the documents dated 11/3/1989. The material part of the ''tehrir'' has already been extracted above. It was submitted by the opposite-party that the time was not of the essence of the contract and the complainants voluntarily paid the increased price amounting to Rs. 7,364.88 and took delivery of the tractor. The price was legitimately and rightly recovered from the complainants as they could only get the delivery of the tractor on the prevailing, at the time of delivery. With the version of the case, photostat copies of the document ''C'', registered letter dated 18/4/1989, postal receipt, cash memo and intimation of transfer of the amount were filed. In support of the defence, affidavit of Subhash Chand. partner of the opposite-party was filed. On 25/10/1989, photostat copies of the priority register and list of the tractors sold from 11/3/1989 to 6/5/1989 were filed. The District Forum after hearing the arguments of the parties and after considering the affidavit and the documents and the written arguments recorded the following findings: (i) that there is no dispute that the opposite-party has realised the price of the tractor which prevailed on 26/4/1989; (ii) that Mamraj was no other person except the complainant''s agent and the complainants are bound by the agreement; (iii) that the opposite-party was bound to supply the tractor within 40-45 days on the price that prevailed on that day and it could not recover the increased price which prevailed on 26/4/1989, as time was of the essence of the contract; (iv) that the opposite-party has derived wrongful gain from the excess amount of Rs. 7,364.88, and, therefore, the Opposite-party is liable to return the amount together with 12% p.a.
On the basis of the aforesaid findings, the complainants were granted the reliefs as stated above. Hence, this appeal.
WRITTEN submissions were filed by the respondents. At the request of the learned counsel for the appellant and Mr. Phularam authorised representative of respondent No. 1, arguments in the appeal were heard on 24.1.90. We have carefully considered the record in the light of the contentions raised by the parties. The first and the foremost question that arises for our consideration is whether the terms of the contract contained in the document Ex. C extracted hereinabove show that the time was of the essence of the contract. At the risk of repetition, it may be stated that in the documents Ex. C, words used are "and further that the complainants will not be entitled to any interest from the date of the handing over of the draft until the delivery of the contract. On 18.4.89, a registered letter was sent to the complainants by the opposite-party in which, it is written: ...[Vernacular Text Ommited]... Sec. 11 of the Sale of Goods Act, 1930 deals with stipulation as to time. It is as follows: "11. Unless a different intention appears from the terms of the contract, stipulations as to time of payment are not deemed to be of the essence of a contract of sale. Whether any other stipulation as to time is of the essence of the contract or not depends on the terms of the contract."
THIS section provides that whether any other stipulation as to time is of the essence of the contract or not depends on the contract. As regards the sale of immovable property normally unless a different intention appears in terms of the contract time is deemed to be of the essence of the contract of sale. We have to consider what was the intention of the parties with respect to the delivery of the tractor. No fixed period is mentioned in the contract. (i) As stated in Ex. C that according to priorities delivery will be made after 40-45 days from the date of handing over of the draft. There is nothing on the record to show that a tractor according to the priority of the complainants was available for delivery within 40-45 days. The document Ex. C is signed by one Mamraj who has signed it on behalf of the complainants, Bhagirath and Surjaram. Below the signature of Mamraj, "for Surja Ram" is written. Having scrutinised the reasons given by the District Forum, we agree with it that Mamraj was none else but the agent of the complainants and in that capacity, he signed the document Ex. C and the complainants are bound by it. In Ex. C, it is clearly stated that delivery of the tractor will be made on the priority basis within 40-45 days. It is significant to note that by registered letter dated 18/4/1989, the complainants were informed that as there was inadequate supply of the tractor from the company, more time will be taken in supplying it and in case they do not want to take the delivery, they can get back the amount paid for it. Revised rates of the tractor were made applicable from 26/4/1989 as appears from Bulletin No. 208. List of tractors delivered from 11/3/1989 to 6/5/1989 shows that it was to be delivered on 21/4/1989. As the opposite-party did not receive the tractors from the company, it could not be delivered. The complainants took the delivery of the tractor on 6.5.89. At that time, there was increase in price amounting to Rs. 7,364.88. The prices of the tractor were increased and they became effective from 26.4.89 and so the complainants took the delivery after making the payment of increased price amounting to Rs. 7,364.88.
(ii) No protest of demur were raised by the complainants at the time of delivery of the tractor. Stipulation regarding time though otherwise of the essence may be waived or the injured party may elect to continue the contract despite breach. The complainants took delivery after paying the increased price. It has not been established that the opposite-party did not supply the tractor on priority basis. Having considered the terms of the contract contained in the document Ex. C and the surrounding circumstances by which the intention of the parties with respect to time becomes clear, the District Forum was not right in holding that the opposite-party should not have recovered the increased price, for, time was not of the essence of the contract and even if it was so, the complainants took the delivery of the tractor on 6/5/1989 after paying the price that prevailed from 26/5/1989.
In view of the aforesaid conclusion, questions of awarding interest on the increased price and compensation do not arise. The order under appeal is illegal and infirm. We are constrained to allow this appeal and set aside the order dated 21/11/1989 passed by the District Forum, Bikaner in Complaint Case No. 251 of 1989 and dismiss the complaint of the complainant. We leave the parties to bear their own costs. Appeal allowed.