Sanjaya Besan And Oil Mill P Ltd vs NARENDRA KUMAR RAY CHOUDHURY

1.THE order of the District Forum directing the appellant to refund to the respondent No. 1 Rs. 70,000/ - and to pay a further sum of Rs. 20,000/ - as compensation and Rs. 1,000/ - as costs, is the subject -matter of challenge in this appeal.

THE respondent No. 1 filed complaint against the appellant and respondent Nos. 2 and 3 alleging deficiency in service. His case is that to earn his livelihood by means of self -employment he started his carrier in business of dealing with edible oil in Puri Market. He got himself registered as a dealer under the Orissa Sales Tax Act. The respondent No. 2 as broker of M/s. Sanjaya Besan and Oil Mill (P) Limited (on whose behalf the present appeal has been filed through its Managing Director) entered into correspondence with the respondent No. 1 saying that they would supply lion brand mustard oil at the rate of Rs. 480/ - per tin. The respondent No. 1 accordingly placed purchase order on 28.12.1999 with the appellant for 540 tins of mustard oil and sent demand draft No. 205137 dated 28.12.1999 for Rs. 70,000/ -. He also sent way bill No. C -246126 through Punjab National Bank, C.T. Road, Puri. This fact was also intimated to the appellant through Fax. Although the demand draft was received on behalf of the appellant, he did not deliver the goods to him. On the contrary the appellant informed him that goods were wrongly delivered to one Pramod Kumar Mishra, Proprietor of Mishra Agency at Harachandi Sahi, Puri. For mis -delivery or wrong delivery to a wrong person the respondent No. 1 is not responsible. Therefore, the appellant ought to have refunded Rs. 70,000/ - to him which he did not do. Finding no other way he filed the complaint. Despite valid service of notice by post and publication of the notice in the ''Indian Express'' under Order 5 Rule 20, C.P.C. the appellant did not appear before the District Forum.

MR . Pattnaik, Counsel for the appellant has filed certain documents in this appeal. We are not inclined to accept them because they were not filed in the District Forum.

THE respondent No. 1 had filed an affidavit in support of the contents of his complaint. The following facts would show that a sum of Rs. 70,000/ - by way of demand draft was sent to the appellant. Receipt dated 28.12.1999 of the Punjab National Bank would show that demand draft No. 205137 for Rs. 70,000/ - drawn in the name of Sanjaya Besan & Oil Mill (P) Limited was obtained by the respondent No. 1. The said demand draft along with way bills were sent by the respondent No. 1 on 28.12.1999 to M/s. Sanjaya Besan & Oil Mill (P) Limited. Mr. Pattnaik Counsel for the appellant admitted before us that the demand draft of Rs. 70,000/ - was duly received by his client. In view of this, the appellant ought to have delivered to the respondent No. 1, 540 tins of mustard oils. It is an admitted case that respondent No. 1 did not receive the consignments. The case of the appellant before us is that the consignment was wrongly delivered to M/s. Mishra Agency at Puri. For such wrong or mis -delivery, respondent No. 1 cannot be held responsible. The appellant having received the consideration money is under legal obligation to deliver 540 tins of mustard oils to the respondent No, 1 which he failed to do. As a consequence, he is liable to refund the consideration money of Rs. 70,000/ - to the respondent No. 1. Therefore, the District Forum has rightly directed the appellant to refund Rs. 70,000/ - with interest thereon. The award of compensation by the District Forum in favour of the respondent No. 1 is fully justified on the facts and circumstances of the case. A sum of Rs. 70,000/ - was sent to the appellant in December, 1999 but till now it has not refunded. For this he (respondent No. 1) not only suffered mentally but also financially.

IN view of what has been stated above, we do not find any merit in this appeal which is accordingly dismissed with costs assessed at Rs. 2,000/ -. Mr. Subash Mahtab, Member -I agree. Appeal dismissed.