PATEL ENGINEERING CO. vs PATEL NANAJIBHAI KHODABHAI

THAT the original opponents have filed this appeal being aggrieved by the decision of the order of the District Forum, Junagadh dated 6.12.1991. The short facts that lead to this appeal inter-alia are as under :

THE respondent (hereinafter referred to as the complainant) filed a complaint alleging that he was possessing agricultural land and has purchased PVC pipelines from the appellant (opponent) for taking water from his well to various parts in his field. Originally the complainant has stated that he went to Bagasara on 25.11.88 for purchasing the pipelines and he purchased Jolly brand 4 Kg. PVC pipelines @ Rs. 36/-. He alleged to have made a contract for 999 mts. pipeline and paid Rs. 36,964/- to the opponent. THEreafter, on 29.11.88 the opponent sent pipelines to the complainant at night time whereas the complainant asked for the bill of the pipes from the truck driver which was not given to him. THE complainant started fitting the pipes in his field and after the fittings have been made he started flowing water for the purpose of irrigating his fields and according to the complainant the pipes started breaking and, therefore, the complainant approached the opposite party at Bagasara immediately and the opposite party promised to send his mechanic to the complainant''s field within a day or two who will repair the same. When he examined the pipelines, it was found that it did not possess the Jolly trade mark and, therefore, he again went to the opposite party at Bagasara. Again, the complainant was promised that the concerned person will examine the same at his fields and as a matter of fact on the next day persons from Paramount Company visited the complainant and informed him that the pipelines having fitted at a long distance the same will not be serviceable. THEy promised that if the complainant comes to Bagasara they will understand the account and had also promised that the same will be changed. However, when the complainant again demanded to change the pipelines the opposite party has not given proper reply and this way the complainant has suffered damages on account a cheating. The summons were served on the opposite party and the opposite party has denied the allegations of the complainant. They have further stated that they had served a notice dated 25.9.89 demanding Rs. 7670/- for the other PVC pipes and fittings etc. which the complainant had not given. The complainant had replied to that notice and, thereafter, the opposite party has filed a civil suit against the complainant registered as civil suit No. 33/90 for Rs. 7640/- plus interest. In order to get away from the liability of payment of some PVC pipes and materials a false complaint has been filed by the complainant.

The District Forum has taken the evidence of both the parties and the witnesses and has considered the documentary evidence particularly one small slip [Exh.31] which is alleged to contain the kacha account in the handwriting of Yogeshbhai, the opponent No. 2 and two receipts Exh. 34 and Exh. 35 which are also in the handwriting of Yogeshbhai and the pleadings before the Civil Court and has believed the transaction of the complainant with the opponent and passed the impugned order directing the opponent to return Rs. 35,964/- to the complainant with interest @ 9% etc.

WE have heard the arguments of the learned advocates of both the parties at length. WE have read the evidence lead by both parties and the witnesses and we find that the order of the District Forum is erroneous and is liable to be set aside. Since the sale of the pipes has not been accepted by opponent the burden to prove that he has purchased the pipes, that he has paid the consideration and that the pipes were defective and not usable lie upon the complainant which to our opinion, the complainant has utterly failed to prove. This is a transaction involving a very high amount of Rs. 36,000/- where the pipes were alleged to have been sold by the opponent to the complainant on 25.11.88 which were alleged to have been delivered on 29.11.88. According to the complainant he has paid Rs. 36,964/- by cash on 25.11.88 without obtaining the bill and/or receipt for the payment. Neither the receipt nor any agreement or bill has been produced except the chit [Exh. 31 ] to which we with refer at the appropriate place. It is again the case of the complainant that the pipes have been delivered to him on 29.11.88 at night and no bill or any paper was given to him nor there is any allegation that no receipt has been obtained by the truck driver from the complainant is also a circumstance which is abnormal. That the pipes were delivered to the complainant on 29.11.88 and he started fitting the pipes in his field without possessing any knowledge. It is well known that the PVC pipes can be fixed with solution and that too by experts after taking out the levelling. Though the complainant has stated that he got these pipelines fitted either by him or by somebody else, no one has been examined. The pipes were alleged to be of Paramount plastic but not Jolly make, as alleged by the complainant. Then the pipes were not of Jolly make, we do not understand why the complainant has accepted the same and if he has accepted the delivery of the same by mistake, why he started fitting the same in his fields either by himself or through other persons. If the opponent has cheated him, as alleged by him, he should have immediately served a telegraphic notice or ordinary notice which he has not done. The case of the opponent also requires some consideration. The opponent has filed a version and has stated that the allegations are false and the false complaint has been filed in order to get away from the liability of the Civil Suit filed by the opponent. According to the opponent, the complainant had purchased some PVC pipes and fittings on 29.5.89 for the amount of Rs. 7,670/- for which the opponent had also given a bill to the complainant. They were dealers of Paramount pipes and not dealers for Jolly pipes. The complainant having not paid the bill, the opponent gave a notice dated 28.12.89 which has not even been replied by the complainant and, therefore, the opponent was obliged to file a civil suit for the recovery of Rs. 7640/- and to get away from this liability, the complainant has filed this false complaint. He has also produced the copy of the written statement filed by the complainant in the Civil Court. I para 9 of the written statement the complainant has stated that he is an agriculturist and had a well and to irrigate his fields he had gone to Bagasara on 25.5.89. He wanted to purchase Jolly brand pipes but same were not available with the opponent and purchased 999 mts. pipes @ Rs. 36/- per mt. This story has been pressed into service for the first time in his written statement by the complainant and this transaction according to the complainant was alleged to have been made on 25.5.89 and the pipes were delivered on 25.5.89 whareas in the present complaint the complainant has stated that he purchased the pipes on 25.11.88 and the same were delivered to him on 29.11.88. The dates are different.

NOW, we will see the documentary evidence -Exh. 31 on which the learned Judge has relied upon. This chit can never believed to be a bill because it is very mutilated which according to the complainant was a piece of evidence. Somebody has scored certain figures and facts and letters. The date on the top appears to be 2.12.84. The total on the front page is Rs. 36,744/- and at the back the total is Rs. 38,640/-. We do not understand as to why the material facts have been erased if it is a bill and why the complainant can accept such a bill which is dated 2.12.84. If we go to the oral evidence, in examination-in-chief he does not disclose the date on which he has purchased the pipes. In cross-examination he has admitted that he had gone to Bagasara in the year 1989 and had purchased the goods on 25.5.89. He has, in para 12 of the deposition has stated that he had paid the money in the 11th month of the year 1988. There is one other evidence of a receipt issued by the opponent (appellant) to the complainant at Exh. 34 where on 12.1.85 the complainant appears to have been paid Rs. 3,000/- towards the existing dues. We can therefore come to the conclusion that he had some transactions with the appellant prior to 1.12.85 and chit at Exh. 31 which clearly shows the date of that chit as 2.12.84 relates to some goods or the estimate of goods given by Patel Engineering Company to the complainant and has no relation to the transaction which according to the complainant was made in May 89 as disclosed from the complaint i.e. five years'' prior to the suit transation and the Exh. 31 also shows that this document has been roughly treated (it was in crumpled position) because it was a useless document after the payment was made in 1985. We are not prepared to accept the story of the complainant for following reasons : - "that both the parties had transactions since 1984 and whenever the payment has been made by the complainant, the oppnent has given receipts with are produced by the complainant himself. - that the document Exh. 31 is a document which has been altered and bears the date 2.12.84 which reflects either prior transaction between the parties or might be an estimate for the requirement of the complainant, - that there was no reasons for the complain ant to lay down the pipes which were required to be laid down by the opponent, - that inspite of the fact that the goods were defective according to the complainant, the complainant has not cared to issue a notice and has not revealed these facts by any other documentary evidence, - for the first time, the complainant has disclosed this story after the civil suit was filed by the opponent which also relates to the PVC pipes of a lesser amount, - that the first notice appears to have been served by the opponent demanding the amount of Rs. 7000 plus odd from the complainant to which no reply appears to have been given. - that the complainant has not cared to apply to the District Fourm to appoint a Commissioner to examine the pipes if he is in possession thereof because such old pipes cannot be obtained subsequently for inspecton of the Commissioner, - that the opponent is keeping books of accounts and if the monies have been paid, the same have to be entered in the books of accounts, - that the complainant alleged to have paid an amount exceeding Rs. 36,000/- by cash and possession of such amount has not been proved by any evidence before the District Forum. - whether the purchase was made in 1988 or 1989, according to the complainant as amended in original complaint bears the date of 25.5.88 and thereafter in red ink date 25.11.88 is written. Similarly the date of delivery is written in red ink as 29.11.88 whereas in the written statement filed before the Civil Court at Bagasara the opposite party has stated the date as 25.5.89 and 29.12.89 respectively on which date he had definitely purchased the pipes and other fittings for the amount of Rs. 7,640/-. This is a material contradiction. We are, therefore, of the opinion that the complaint filed by the complainant-respondent was a counterblast to the civil suit filed by the opponent. In any case the complainant is not able to prove either that he has purchased the complained goods from the opponent by producing the original bill or any other document or that he has paid any consideration by producing the receipt or withdrawal of such amount from any bank or other traders. To our opinion there is no reliable evidence for the purchase or for the payment of consideration for the same or "any reliable evidence regarding the detect in the goods. The evidence which is produced by the complainant cannot be believed which does not appear to be in the normal course of business. We are, therefore, of the opinion that the complainant has miserably failed to prove by convincing evidence that he has purchased the pipes or that he has paid any consideration or that the goods were defective. In these circumstances, we shall have to allow the appeal by setting aside the order of the District Forum which is not based upon any cogent and reliable evidence. ORDER The appeal is allowed. The judgment and order of the District Forum is set aside with cost. The complainant will bear the cost for the Commission as well as the District Forum which we quantify at Rs. 1,000/-for both. Appeal allowed with costs.