Kalidas Mukherjee, President.
This appeal is directed against the judgment and order passed by Learned District Forum, Barasat, North 24-Parganas in CC 21 of 2013 allowing the complaint with cost of Rs.5,000/- and the OPs were directed to deliver 14,000 bricks as per delivery order dated 17/07/12 in favour of the Complainant within one month from the date of order. The OPs were directed to pay sum of Rs.10,000/- as compensation, Rs.5,000/- as punitive damages within the period of one month from the date of order failing which the OPs will have to pay monthly interest @ Rs.2,000/- over the said amount till full satisfaction. In case of failure on the part of the OPs to deliver bricks, they were directed to refund the deposited amount with 10% interest within one month from the date of order.
The case of the complainant/respondent, in short, is that he wanted to construct dwelling house over his purchased landed property and, accordingly, he needed good quality of bricks. He applied before the office of the OP No.1 to supply 7,000 special class bricks and 7,000 A class bricks to the construction site of Jonepur, Kanchrapara, District-North 24-Parganas. After booking of the said bricks the OP sanctioned the same and intimated the Complainant to deposit full amount of Rs.53,032/- with the office of the OP No.1 for the delivery of said bricks. Accordingly, the Complainant paid the full amount of Rs.53,032/- to the OP No.1 through demand draft bearing no.169819 dated 10/07/12 drawn on SBI, Barrackpore Branch. The OP No.1 issued one delivery order dated 17/07/12 in favour of the Complainant with the assurance that bricks will be delivered shortly at the construction site. But it is a matter of utter surprise that in spite of several months being elapsed the said bricks were not supplied by the OP. The Complainant issued several letters to the OPs with the request to deliver bricks immediately, but to no effect. It has been alleged that OP No.1 was solely liable for the failure to supply bricks as agreed upon by and between the parties. For the said reasons, the complaint was filed before the Learned District Forum.
The Learned Counsel for the appellant has submitted that there was hike in the price of the bricks and this fact was communicated to the Complainant but he did not agree to purchase bricks at the increased rate approved by the Government by order dated 24/07/12. It is contended that although the agreement was entered into by and between the parties on 17/07/12, after the issuance of subsequent Government order dated 24/07/12 the Complainant/Respondent will have to pay the increased rate for the supply of bricks. It is submitted that the said order dated 24/07/12 will have retrospective effect. It is contended that as it is a policy of the Government regarding increased rate of price of bricks the Complainant is bound to abide by the same. It is contended that time is not the essence of contract in such a case.
The Learned Counsel for the respondent has submitted that the agreement was entered into by and between the parties on 17/07/12, but the Government order took effect on 27/07/12. It is contended that there is no material to show that the said order will have retrospective effect.
We have heard the submission made by both sides and perused the papers on record. Admittedly, there was a contract by and between the parties whereby the Complainant deposited the sum of Rs.53,032/- by way of demand draft dated 10/07/12. Accordingly, delivery order was issued on 17/07/12. It is the specific case of the Complainant/Respondent that in spite of several letters issued by him the OP No.1 failed and neglected to supply the bricks. The point for consideration is whether the Government order dated 24/07/12 will have retrospective effect or not. It appears that by Memo No.527/2/G-132(1) dated 26/07/12 issued by the Director, Brick Production, Housing Department, Government of West Bengal that the said order dated 24/07/12 will take effect from 27/07/12. Evidently, therefore, the increased rate vide Government order dated 24/07/12 had no bearing on the delivery order issued by OP No.1 on 17/07/12. The Complainant has clearly averred in Para-16 of the complaint that OP No.1 was solely liable for the non-supply of bricks. Under the circumstances, we modify the impugned judgment as hereunder.
The appeal is allowed in part. The Appellant No.1/OP No.1 of the complaint is directed to deliver 14,000 bricks as per booking of the Complainant dated 17/07/12 and pay compensation of Rs.10,000/- and also the litigation cost of Rs.3,000/- to the Respondent/Complainant within 45 days from the date of passing this order failing which interest @ 9% p.a. shall accrue on the aforesaid amount till realisation.
In case of failure on the part of the Appellant No.1 to supply the bricks within the stipulated time as aforesaid the Appellant No.1 will refund the amount to the Complainant deposited by him with interest @ 9% p.a. from the date of filing of the complaint case till realisation. The impugned judgment stands modified to the extent stated above.