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Citation Codes
Equivalent Citations
citation codes
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Attorney(S)
Acts
  • 6 12. Section 36 of the ibid Act contains provisions
  • Section 14 of the Indian Contract Act, 1872.
  • Section 2(7) of the Sales of Goods Act 1930.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
Acts
  • 6 12. Section 36 of the ibid Act contains provisions
  • Section 14 of the Indian Contract Act, 1872.
  • Section 2(7) of the Sales of Goods Act 1930.
Smart Summary

Factual and Procedural Background

On 30.4.2019, the complainant visited the showroom of the opposite parties at Kangra to purchase articles worth ₹7,219/-. At the cash counter, the cashier asked if he wanted a carry bag. The complainant, having purchased many articles, accepted the carry bag. However, he noticed that the opposite parties charged ₹7/- for the carry bag despite his objection and reference to a Court order. The complainant alleged this was an unfair trade practice and sought compensation for mental harassment through the instant complaint.

The opposite parties appeared, contested the claim, and raised preliminary objections on maintainability. They admitted the purchase and charge but contended that the complainant was informed he was not compelled to take the carry bag and that he voluntarily consented to pay for it. The complainant tendered affidavit evidence and document Annexure C-1, while the opposite parties filed affidavit evidence and documents OP-1 and OP-2. No rebuttal evidence was led by the complainant. The matter proceeded on these pleadings and evidence.

Legal Issues Presented

  1. Whether the charge of ₹7/- for the carry bag by the opposite parties amounts to an unfair trade practice.
  2. Whether the complainant’s consent to pay for the carry bag was free consent as defined under Section 14 of the Indian Contract Act, 1872.
  3. Whether the expenses for putting goods into a deliverable state can be charged to the buyer under Section 36(5) of the Sales of Goods Act, 1930, absent any agreement to the contrary.

Arguments of the Parties

Complainant's Arguments

  • The complainant argued that the charge for the carry bag was an unfair trade practice.
  • He contended that due to the volume and number of articles purchased, he had no real option but to accept the carry bag, implying his consent was not truly free.
  • He sought compensation for mental harassment arising from the alleged unfair trade practice.

Opposite Parties' Arguments

  • They admitted the purchase and charge but asserted the complainant was informed he was not compelled to take the carry bag.
  • The complainant voluntarily consented to pay for the carry bag after being apprised of his right to refuse it.
  • They denied any unfair trade practice or negligence and prayed for dismissal of the complaint with costs.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Section 2(7) of the Sales of Goods Act, 1930 Definition of goods as every kind of movable property other than actionable claims and money. Used to classify the articles purchased as goods, thus invoking the provisions of the Sales of Goods Act.
Section 36 of the Sales of Goods Act, 1930 Rules as to delivery of goods, including that expenses to put goods into a deliverable state shall be borne by the seller unless otherwise agreed. Applied to determine whether the charge for the carry bag was permissible or whether it was an expense the seller should bear.
Section 14 of the Indian Contract Act, 1872 Definition of free consent as consent not caused by coercion, undue influence, fraud, misrepresentation, or mistake. Used to assess whether the complainant’s consent to pay for the carry bag was free and valid.

Court's Reasoning and Analysis

The court analyzed the factual matrix and the legal provisions relevant to the dispute. It was undisputed that the complainant purchased goods and was charged for a carry bag after being asked if he wanted one. The complainant claimed the charge was unfair and that his consent was not free as he had no real choice.

The court examined Section 36(5) of the Sales of Goods Act, which states that, unless otherwise agreed, the seller bears expenses incidental to putting goods into a deliverable state. The court noted that the complainant did not plead or prove that the goods were not in a deliverable state or that the carry bag was necessary to make them deliverable.

Regarding consent, the court referred to Section 14 of the Indian Contract Act and found no evidence of coercion, undue influence, fraud, misrepresentation, or mistake. The complainant’s claim that he had no option but to accept the carry bag did not amount to absence of free consent under the Act.

Consequently, the court did not find the charging of ₹7/- for the carry bag to constitute an unfair trade practice. The complainant’s allegations were held unsustainable on the facts and law.

Holding and Implications

The complaint filed by the complainant is DISMISSED with no order as to costs. The direct effect is that the opposite parties are not held liable for unfair trade practice in charging for the carry bag under the circumstances. No broader legal precedent was established by this decision.

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    Anil Sharma v. Reliance Trends

    Facts leading to the institution of the instant complaint in brief are that on 30.4.2019 the complainant went to the show room of opposite parties situated at Kangra to purchase some articles. After purchasing the articles, he approached the cash counter of the opposite parties to make the payment. While preparing the bill, the cashier asked him as to whether he wanted to take the carry bag. Since he had purchased many articles, so he was having no other option than to take the carry bag. However, while going through the cash memo, he noticed that despite of purchasing articles worth `7219/-, the opposite parties had charged `7/- for the carry bag. He objected to the aforementioned charges and also apprised the official(s) of the opposite parties of the order of the Court in this behalf but he did not accede to his request. Due to the aforementioned unfair trade practice adopted by the big companies like the opposite parties in fleecing the general public, he approached this Forum by way of instant complaint and thereby he sought a direction against the opposite parties directing them to pay to him compensation for subjecting him to mental harassment.

    2. In response to the notice issued, opposite parties put in appearance and filed joint reply and thereby they resisted and contested the claim of the complainant by raising preliminary objection of maintainability on legal as well as factual grounds. But on merits, they admitted that on the relevant day, the complainant had visited their show room and had purchased the articles of worth `7219/-. But according to them, before charging the necessary amount for the carry bag, complainant had been categorically apprised of the fact that he was not under any compulsion to take carry bag and that in case he opted to do so, necessary charges with respect thereto shall be charged from him, and that in response thereto, the complainant had voluntarily consented for the aforementioned payment, and that thereafter the carry bag had been supplied to him and necessary amount had been charged.

    3. In short, it had been tried to be shown on behalf of the opposite parties that there was no element of any compulsion or negligency on their part in conducting the business with the complainant, and had thus made a prayer for dismissal of the complaint with costs.

    4. The complainant had not filed any rejoinder. But to probablise his case, he had tendered in evidence his affidavit Ex. CW-1 and document Annexure C-1.

    5. To controvert the case of the complainant and to lend corroboration to their case, the opposite parties had filed affidavit Ex. OPW-1 of Sh. Shyam Sunder, their Store Manager, and documents Annexures OP-1 & OP-2.

    6. No evidence in rebuttal had been led on behalf of the complainant.

    7. We have heard submissions of the complainant, arguments of ld. Counsel for the opposite party, and have gone through the case file.

    8. Admitted factual position which has emerged out of the nature of the stand taken by the parties in their respective pleadings as well as the subsequent evidence produced is that complainant had purchased certain articles from the store/showroom of the opposite parties on 30.4.2019 against bill Annexure C-1 and that before issuance of the bill in question and charging the necessary amount of the carry bag from the complainant, the cashier of opposite parties had asked the complainant as to whether he also intended to take a carry bag, and that keeping in view the number and volume of the articles purchased by the complainant, he had opted to have a carry bag, and that the opposite parties had charged `07/- as the price of the carry bag. However, dispute interse the parties is with respect to the legality and justifiability on the part of the opposite parties in charging the aforementioned amount.

    9. Complainant had taken the plea that the conduct on the part of the opposite parties in charging the amount for the carry bag was unfair trade practice, whereas opposite parties had come up with the plea that before charging the aforementioned price of the carry bag from the complainant, they had apprised the complainant of his right not to compulsorily purchase the carry bag, and that in case he opted to do so, he would be charged the necessary amount thereof.

    10. Admittedly, the articles in question sold by the opposite parties to the complainant could be held to be goods as defined by Section 2(7) of the Sales of Goods Act 1930. The aforementioned Section of the ibid Act inter alia defines goods as every kind of moveable property other than actionable claims and money.

    11. So in view of the above, regard has to be had to the provisions of ibid Act to appreciate the nature of the controversy in question.

    12. Section 36 of the ibid Act contains provisions with respect to delivery of goods. For the sake of convenience, Section 36 of the ibid Act is reproduced verbatim herein under:-

    36. Rules as to delivery: (1) Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each case on the contract, express or implied, between the parties. Apart from any such contract, goods sold are to be delivered at the place at which they are at the time of the sale, and goods agreed to be sold are to be delivered at the place at which they are at the time of the agreement to sell or if not then in existence, at the place at which they are manufactured or produced. (2)Where under the contract of sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time. (3) Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller to buyer unless and until such third person acknowledges to the buyer that he holds the goods on his behalf: Provided that nothing in this section 7 shall affect the operation of the issue or transfer of any document of title to goods. (4) Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour. What is a reasonable hour is a question of fact. (5) Unless otherwise agreed, the expenses of and incidental to put the goods into a deliverable state shall be borne by the seller.

    13. If the proposition in hand is considered in the light of the ibid Section of the Act, then there is no hesitation to hold that Sub Section 5 of the ibid Act is the relevant provision to determine the dispute in question.

    14. This Sub Section clearly provides that unless otherwise agreed, the expenses of and incidents to put the goods into a deliverable state shall be borne by the seller.

    15. Thus it goes to show that ibid provisions of the Act clearly provides that ordinarily expenses to put the goods in a deliverable state shall be borne by the seller. However, it would be subject to the terms and conditions otherwise agreed upon by the parties.

    16. It is the admitted case of the complainant that before issuing the carry bag and thereafter charging the necessary amount with respect thereto, the cashier of the opposite parties had sought his consent. However, the complainant had tried to show that keeping in view the number and volume of the articles, he had been left with no other option than to accord his consent.

    17. On the other hand, the opposite parties had come up with the specific case that carry bag had been supplied and necessary price with respect thereto had been charged only after categorically apprising the complainant of his right to take or not to take the carry bag, and that it had further been categorically told to him that in case he opted to purchase the carry bag, he would be charged the necessary amount with respect thereto, and that the carry bag in question had been supplied only after the necessary consent given by the complainant.

    18. So in view of the above, it has to be seen as to whether the consent given by the complainant could be held to be a free consent as contemplated by Section 14 of the Indian Contract Act, 1872.

    19. Term free consent has been defined by the ibid Section of the Act as consent which has not been caused by coercion as defined by Section 15, or undue influence as defined by Section 16, or fraud as defined by Section 17, or mis-representation as defined by Section 18 or mistake as defined by Sections 20 to 22 of the ibid Act.

    20. It is not the case of the complainant that his consent had been obtained or caused by any of the aforementioned provisions of the Act. Rather, as per him, in view of the nature of the number of articles and volume thereof, he had been left with no other option than to take a carry bag so as to carry those articles to his home. The aforementioned plea set up by the complainant could not be held to be a consent influenced by any of the provisions of Sections 15 to 12 of the ibid Act.

    21. Further, it has to be seen as to whether the articles purchased by the complainant could be held to be in a deliverable state?

    22. It is not the case of the complainant that articles purchased by him were in lose condition and had not been properly packed. In this behalf, complainant had neither pleaded the necessary facts nor subsequently produced any evidence to show that the articles purchased by him could not be held to be in a deliverable state due to the nature of the packs in which same had been supplied to him.

    23. So considering the case of the complainant from any angle, it could not be legally possible to sustain the simpliciter allegations made by the complainant that opposite parties had indulged into unfair trade practice. Consequently, the complainant merits dismissal, and is hereby dismissed however with no order as to costs. A copy of this order be supplied to the parties as per Rules and the file after needful be consigned to the record- room. Announced at Dharmshala on 03.1.2020 (Pradeep Samyal) President Dinesh Sharma Member

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    Anil Sharma v. Reliance Trends
    (Jan 3, 2020)