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Himachal Pradesh High Court · body

2019 DIGILAW 562 (HP)

Maheshwar Bali v. Shiv Jewellers

2019-05-04

S.C.KAINTHLA, SUBNEET SINGH CHAUHAN, YOGITA DUTTA

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ORDER : 1. The complainant has filed the present complaint seeking recovery of Rs. 80,000/- alongwith interest, sum of Rs. 10,000/- as damages and further sum of Rs. 5500/- as cost of litigation. 2. The case of the complainant in brief is that the OP is engaged in the business of Gold jewellery and ornaments at Lower Bazar, Shimla and the complainant in August, 2008 has purchased Mangal Sutra and Gold ring from the OP and cost of the Mangal Sutra was Rs. 38,748/- and Gold ring was Rs. 2700/-. It is further pleaded that the complainant has visited the shop of the OP with one Prem Chand and Subhash Verma for purchasing the aforesaid jewellery and it was disclosed by the OP that both the articles were of 23 caret and was fully guaranteed for purity of gold and against any defect in the manufacturing or craftsmanship and in case the complainant so desired he could return the said articles at the shop at the rate prevailing on the date of return. It is further pleaded that the complainant has made payment of Rs. 38,500/- to the OP as the OP has granted discount of Rs. 2948/- and on being asked for bill, the OP apprised that in case bill was to be issued, the complainant would be required to make payment @ 12% of the cost price as tax and as such it was advisable to purchase the items against a Katcha bill. It is further pleaded that Mangal Sutra and Gold ring were immediately put to use and the Gold ring after two months in October, 2008 got broken and the complainant visited the shop of the OP with broken ring and OP expressed regret and offered to exchange the ring and thereafter handed over another ring to the complainant forthwith which was of heavier weight and as such the complainant made payment of Rs. 2150/- to the OP. It is further pleaded that after the period of three years colour of Mangal Sutra and gold ring started fading and thus, in November, 2012, the complainant visited the shop of OP and apprised him about the defect in the articles so purchased by him and the OP offered to buy back the articles for Rs. 2150/- to the OP. It is further pleaded that after the period of three years colour of Mangal Sutra and gold ring started fading and thus, in November, 2012, the complainant visited the shop of OP and apprised him about the defect in the articles so purchased by him and the OP offered to buy back the articles for Rs. 35,000/- which was not acceptable to the complainant as by that time the rate of Gold was almost double from the date of purchase and thus as per assurance given by the OP to the complainant at the time of purchase of the articles, he was entitled to a minimum sum of Rs. 80,000/- due to increase in the cost of the Gold, but the OP instead of making such payment flatly refused to make any payment in excess of Rs. 35,000/-. It is further pleaded that when the articles so purchased were shown to other jewellers, they opined that gold used in the ring was not of 23 carets and as such the complainant has been cheated/defrauded by the OP, which act and conduct of the OP amounts to unfair trade practice and deficiency in service. 3. The complaint so filed has been contested by the OP by filing reply taking preliminary objections therein regarding maintainability, cause of action, limitation and that the complaint has been filed with mis-representation of facts by the complainant. On merits, it is admitted that OP is engaged in the business of Gold jewellery and ornaments at Lower Bazar, Shimla, but it is denied that the complainant had purchased Mangal Sutra and Gold Ring from the shop of the OP. It is also denied that OP has received sum of Rs. 38,500/- from the complainant and assured that articles were of 23 caret and the complainant could return the said articles whenever he desires on the prevalent rate on the date of return. It is denied that the complainant has visited the shop of the OP in August, 2008 alongwith one Prem Chand and Subhash Verma and pleaded that these persons have just been named in the complaint so as to create false evidence against the OP. It is denied that the Gold ring so sold by the OP got broken and thereafter, the complainant has got exchanged the said ring by making payment of Rs. 2,150/-. It is denied that the Gold ring so sold by the OP got broken and thereafter, the complainant has got exchanged the said ring by making payment of Rs. 2,150/-. It is further denied that Mangal Sutra and Gold Ring so sold by the OP were not of 23 caret. It is denied that the complainant has been cheated/defrauded by the OP. It is pleaded that on 26.06.2013 the complainant visited the shop of the OP and showed the alleged items to the OP and the OP asked for bill, but no such bill was produced by the complainant and thereafter, the OP inspected the gold items, but there was no seal and impression of the shop of the OP engraved on the said items and as such the said items were not found to have been purchased from the shop of the OP by the complainant. It is denied that there is any unfair trade practice or deficiency in service on the part of the OP. 4. No rejoinder was filed on behalf of the complainant. 5. The parties were asked to lead evidence in support of their respective contentions. The complainant has tendered in evidence his affidavit, in which he has fully corroborated/supported the allegations as contained in the complaint alongwith the affidavit of Subhash Verma, whereas on behalf of the OP, affidavit of Dinesh Bindal, proprietor of OP has been tendered in evidence. 6. We have heard learned counsel for the parties and have also gone through the case file carefully. 7. It is not a disputed fact that the OP is engaged in the business of Gold jewellery and ornaments at Lower Bazar, Shimla. 8. It is the plea of the complainant and is also in his evidence that during August, 2008, he has visited the shop of the OP and has purchased Gold Mangal Sutra and Gold Ring worth Rs. 41,448/- from the OP and he has made payment of Rs. 38,500/- to the OP as the OP has given concession of Rs. 2150/- to him and the OP had assured that items so sold were of 23 caret and was without any defect of manufacturing or craftsmanship. The OP has denied such plea of the complainant not only in its reply but also in the affidavit of Dinesh Bindal who is proprietor of the OP. 2150/- to him and the OP had assured that items so sold were of 23 caret and was without any defect of manufacturing or craftsmanship. The OP has denied such plea of the complainant not only in its reply but also in the affidavit of Dinesh Bindal who is proprietor of the OP. Though, plea of the complainant that said gold items were purchased by the complainant from the shop of the OP during August, 2008 has been substantiated/corroborated by Subhash Verma in his affidavit who is alleged to be accompanying the complainant at the time of alleged purchase of Gold items, but it is to be noted that the complainant has not placed on record any bill issued by the OP regarding purchase of such items from the shop of the OP and no receipt regarding payment of Rs. 38,500/- by the complainant to the OP has been placed on record by the complainant. 9. It is the plea of the complainant and is also in his affidavit that when asked for proper bill, the OP disclosed that in case the complainant would insist to issue bill, then he was required to pay tax @ 12% of the cost price and it was advisable to purchase the items against a Katcha bill, which means that as per the complainant himself, the OP has issued a Katcha bill in his favour regarding purchasing of such items. However, no such Katcha bill has also been placed on record by the complainant to substantiate/corroborate his plea that he had purchased Gold Mangal Sutra and Gold Ring during August, 2008 for Rs. 38,500/- from the shop of the OP. Thus, in the absence of documentary evidence showing that the complainant has purchased Gold items as alleged by him from the shop of OP during August, 2008, the plea of the complainant that he has purchased such items from the shop of the OP cannot be accepted. 10. It is also the plea of the complainant and is further in his evidence that Gold ring so purchased by him got broken in October, 2008 and thereafter, he again approached the OP who has exchanged the said ring with another ring of heavier weight and as such he has made payment of Rs. 2150/- to the OP at that time. 2150/- to the OP at that time. The complainant has again not produced any document showing that he has made payment of Rs. 2150/- to the OP during October, 2008 on account of exchange of Gold ring and thus, in the absence of corroboration from any documentary evidence on record, the plea of the complainant that he has got exchanged any such gold ring with OP during October, 2008 also cannot be accepted. 11. It is further plea of the complainant and is also in his affidavit that at the time of purchase, the OP assured that the items so purchased were of 23 caret and was fully guaranteed for purity of gold and against any defect in the manufacturing or craftsmanship, but in the absence of any bill regarding purchase of such items, such plea of the complainant cannot be accepted that OP has told him that the items so purchased were of 23 caret. 12. It is further plea of the complainant and is further in his evidence that colour of both the items started fading within three years of use and when the same were shown to some other jeweller, the complainant came to know that Gold items were not of even 10 caret. However, the complainant has not placed on record the affidavit of such jeweller and no other document in the shape of certificate issued by the such jeweller has been tendered in evidence by the complainant that Mangal Sutra and Gold Ring alleged to have been sold by the OP to the complainant were not of the quality of which the same purports to be, but was of the inferior quality. In view of this, such plea of the complainant also cannot be accepted. 13. Since the complainant has failed to prove that he has purchased Gold items from the shop of the OP which were not of the quality of which the same purports to be, no deficiency in service or unfair trade practice on the part of the OP can be attributed due to failure of the OP to take back such items for the price of Rs. 80,000/- as alleged by the complainant. 14. Thus, in view of what has been stated above, we find no merits in the complaint, which deserves dismissal and is accordingly dismissed leaving the parties to bear their own costs. 80,000/- as alleged by the complainant. 14. Thus, in view of what has been stated above, we find no merits in the complaint, which deserves dismissal and is accordingly dismissed leaving the parties to bear their own costs. Copy of this order be supplied to the parties free of cost as per rule. File after its due completion be consigned to the Record Room. Announced on this the 4th day of May, 2019.