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