1. Brief facts of the case are that the respondents manufacture gold ornaments in the name of Arian Goldsmith. On 07.2.2008 the complainant purchased a Mala Chain weighing One Tola Six Ratis in consideration of Rs. 21,200/-. On 09.9.2008 the complainant purchased four Bangles of gold weighing 1 Tola 10 Mashas in consideration of Rs. 40,350/-. The respondent also gave guarantee that there would be pure gold in the ornaments. On 12.9.2008 the complainant paid Rs. 3 lacs in cash to the respondents for the purchase of gold ornaments weighing 12 tolas 6 mashas. The respondents promised to handover the prepared gold ornaments to the complainant within two weeks. For all the dealings between the complainant and the respondent receipts were prepared.
2. After the two weeks the respondents did not handover to the complainant the above said gold ornaments and even up till today they have not fulfilled their promise. Afterwards the complainant went to some other goldsmith for selling the mala chain and four bangles of gold then he came to know that there was 60% gold and 40% copper in the above said gold ornaments. On 16.3.2010 the complainant went to the respondents to take back the mala chain and bangles and the respondents offered to pay the amount of the gold to the complainant as per market rate within three days. They also promised to handover the gold ornaments weighing 12 tolas and 6 mashas to the complainant, however even up till today the respondents have not fulfilled their promise. The complainant asked many times to the respondents to pay back the amount in cash to the complainant but all in vain. He has also claimed compensation of Rs. 1 lac. The complainant sent legal notice to the respondent through registered post, hence this complaint.
3. 2 The respondent No. 1 did not appear in the court and he was ultimately initiated against ex-parte while the respondent No. 2 contested the case. Respondent No. 2 submitted his written reply in which he has denied all the allegations leveled by the complainant.
4. 3 Evidence of the parties was recorded. Muhammad Afzal complainant appeared as PW1 and submitted his affidavit EX-PA in his chief examination. During cross examination PW1 has stated that the respondents are running jewellery shop jointly. The receipt of purchase of Mala chain is Mark A, the receipt of purchase of bangles is Mark B while the receipt of receiving of Rs. 3 lacs by the respondents from the complainant is Mark C. PW1 has stated that Mark A has been signed by the respondent No. 1. Receipt Mark B was also signed by respondent No.1, however respondent No. 2 was also present in the deal. He stated it incorrect to suggest that there are fake signatures of respondent No. 2 on Mark C through which the amount of Rs. 3 lacs was received by respondent No.2. Mr. Wakeel Ahmed appeared as PW2 and submitted his affidavit EX-PB. During cross examination he has admitted that at the time of recording of statement of Muhammad Afzal PW1 he was present in the court room. He stated that the respondent run business of gold jewellery jointly. He has stated that Mark C was written at his Medical store which was run by him in those days. At the time of writing of Mark C the petitioner handed over Rs. 3 lacs to the respondent No. 2.
5. The witnesses Asghar Hussain S/o Zakir Hussain and Muhammad Asghar S/o Abdur Raheed were also present on the spot. The amount of Rs. 3 lacs was paid by the petitioner in his presence in medical store which was received by respondent No.2 has stated it incorrect to suggest that he is deposing falsely. Asghar Hussain S/o Zakir Hussain appeared as PW3 and submitted his affidavit which is EX-PC. During cross examination he has stated that the respondent do their business jointly. He has stated that the amount of Rs. 3 lacs was paid to the respondent by the petitioner at Shan Medical Store and currency notes were of the denomination of Rs. 1000/- each. Muhammad Asghar S/o Abdur Rasheed appeared as PW4 and submitted his affidavit EX-PD. During cross examination he has stated that Mark C was written by him which was about the purchase of gold ornaments by the petitioner to the respondent for an amount of Rs. 3 lacs. Respondent No. 2 signed Mark C in my presence. He stated it incorrect to suggest that respondent No. 2 did not sign Mark C.
6. The legal notice is Mark D while postal receipts are Mark E and Mark F.
7. 4 In the evidence of respondents, respondent No. 2 appeared as RW1 and submitted his affidavit EX-R1. During cross examination RW1 stated it incorrect to suggest that on 07.2.2008 the petitioner got prepared/purchased a mala chain of gold weighing 1 Tola 6 ratis in consideration of Rs.
8. 21200/-. Mark A has been issued by his brother Mr. Muhammad Akhtar respondent No. 1 who has also signed the same. On Mark A it is also printed that proprietors are Muhammad Arshad & Muhammad Asghar. Mark B was also issued by Mr. Muhammad Akhtar Respondent No. 1 and was signed by him. He denied that on the back of Mark C there are his signatures. He denied that on 12.9.2008 he received an amount of Rs. 3 lacs from the petitioner for preparation of gold ornaments weighing 12 tolas 6 mashas. He has also denied that on 16.3.2010 gold ornaments mentioned in Mark A and Mark B were returned to him due to impurity of gold. RW1 has stated that he did not want that this case be disposed off on the basis of oath of the parties. He has also stated that he did not know about his brother Mr. Muhammad Akhtar respondent No. 1 whether he got any amount from the petitioner for preparation of gold ornaments. RW2 Muhammad Asif appeared as witness of the respondent and produced his affidavit EX-R2. During cross examination RW2 has stated that he did not know about anything given and taken between the parties. RW3 Waheed Ashraf appeared as witness of the respondent and submitted his affidavit EX-R3. During cross examination RW3 stated that he did not know whether gold bangles were returned by the complainant to the respondent No. 2. He has also stated that when the petitioner got prepared gold ornaments from the respondent he was present at that time. He has also admitted that in his presence petitioner gave Rs. 3 lacs to the respondent No. 1 along with gold ornaments. The amount of Mark C was paid to the respondent No. 1 & 2 in his presence.
9. 5 On completion of evidence arguments have been addressed by the parties.
10. Learned counsel for the petitioner has argued that respondents have to pay an amount of Rs.
11. 5,38,853/- to the petitioner and he has prayed for acceptance of the petition. Learned counsel for the respondent has argued that nothing could be proved against the respondent No. 2 and prayed for dismissal of the complaint.
12. 6 Arguments heard, record perused.
13. 7 The main plea of the complainant is that he purchased one mala chain weighing 1 tola 6 ratis on 07.2.2008 in consideration of Rs. 21200/- and four bangles on 09.9.2008 weighing 1 tola 10 mashas in consideration of Rs. 40350/-. He has also claimed that on 12.9.2008 he paid Rs./ 3 lacs to the respondents for preparation of gold ornaments weighing 12 tolas 6 mashas. The version of the complainant is that on 16.3.2010 the complainant returned the above said gold ornaments to the respondents as they were made of impure gold and claimed amount. The respondent No. 1 has been initiated against ex-parte while the respondent No. 2 has contested the case. In his documentary evidence the petitioner produced receipts Mark A, Mark B & Mark C while respondent No. 2 has denied his signatures affixed on these documents. Mark A clearly shows that gold ornaments were purchased by the complainant from the respondent for consideration of Rs.
14. 21200/- and Mark B shows that the petitioner has also purchased four bangles from the respondent for consideration of Rs. 40350/-. Mark C is a receipt according to which both the respondents received Rs. 3 lacs for preparation of gold ornaments weighing 12 toals 6 mashas. Signatures of respondent No. 1 and 2 are present on Mark C while witnesses of Mark C along with its subscriber have also appeared in the witness box. The complainant has successfully proved his case. He has claimed the price of the gold at the time of institution of this petition which is Rs. 5,38,853/-.
15. Therefore the petition in hand is hereby accepted with costs and the respondents are directed to pay Rs. 5,38,853/- to the complainant. In the petition the petitioner has demanded compensation of Rs. 1 lac but during evidence of the complainant nothing has been uttered about it. Therefore this compensation cannot be given to the petitioner.
16. File be consigned to record room after its due completion.