State Consumer Disputes Redressal Commission
Mrs.Usha Tanna vs Mr.L.M. Sani And Anr. on 27 February, 2008
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI FIRST APPEAL NO. 2765 OF 2006 Date of filing : 29/12/2006 @ MISC. APPL. NOS. 3255 & 3256 OF 2006 Date of order : 27/02/2008 IN CONSUMER COMPLAINT NO. 576 OF 1999 MUMBAI SUBURBAN DISTRICT CONSUMER FORUM Mrs.Usha Tanna 101, Emerald Apartment, Near Vakola Market, Santacruz (E), Mumbai 400 055. Appellant/org. O.P.No.1 V/s. 1. Mr.L.M. Sani A/12, Azad Apartments, Azad Lane, Andheri (W), Mumbai-400 058. Respondent/org. complainant 2. Shri Rahul D. Raythatha 3A, Shivlok, Ramgali, Kandivali (W), Mumbai-400 067. Respondent/org. O.P.No.2 Corum : Justice Mr.B.B. Vagyani, Honble President Shri P.N. Kashalkar, Honble Judicial Member
Smt. S.P. Lale, Honble Member Present: Mr.Kantawala, Advocate for the appellant.
Mr.U.B. Wavikar, Advocate for the respondent/org. complainant.
- : ORAL ORDER :-
Per Justice Mr. B.B. Vagyani, Honble President This appeal filed by appellant/org. O.P.No.1 in consumer complaint No.576/1999 is directed against the order dated 06/10/2006 passed by Mumbai Suburban District Consumer Forum. The Forum below allowed the complaint bearing No.576/1999 and directed the present appellant to refund Rs.25,000/- to the respondent No.1/org. complainant along with simple interest @ 15% p.a. from 25/10/1997 till the date of realization. The Forum below has awarded Rs.10,000/- to the complainant by way of compensation. The org. O.P.No.1 has taken exception to this order and has come up in appeal.
There is delay of 21 days in filing appeal. Therefore, application for condonation of delay is filed. Delay is not deliberate or intentional. We are therefore inclined to condone the delay. Delay is accordingly condoned.
We heard Mr.Kantawala, Advocate for the appellant and Mr.U.B. Wavikar, Advocate for the respondent No.1/org. complainant.
M/s.Avishkar Fabrics was owned by Saurab Tanna. Saurab Tanna was the sole proprietor of M/s.Avishkar Fabrics. The complainant kept Rs.25,000/- with M/s.Avishkar Fabrics at assured interest @ 15% p.a. from 05/02/1996. The interest was to be paid quarterly. M/s.Avishkar Fabrics continued to pay interest till June 1997. M/s.Avishkar Fabrics discontinued to pay interest after 25/10/1997. The deposit was acknowledged by present appellant after death of her husband who was sole proprietor of M/s.Avishkar Fabrics. After having taken liability to refund deposit money and to pay interest, the appellant refused to pay interest and deposit money. Therefore, the depositor filed consumer complaint No.576/1999 against the wife of sole proprietor of M/s.Avishkar Fabrics.
The present appellant who was O.P.No.1 in the original complaint filed written statement and resisted the very maintainability of the consumer complaint on the ground that the claim is covered under provisions of Negotiable Instrument Act, 1881. It is also contended in the written statement that the appropriate remedy for the complainant is to file summary suit as contemplated under provisions of Code of Civil Procedure. The main defence in the written statement is with regard to forgery. The signature appearing on the Bill of Exchange is denied by the O.P.No.1. It is also contended in the written statement that the complaint is hopelessly time-barred.
The Forum below negatived all the contentions raised by O.P.No.1 and allowed the complaint and passed the impugned order, which is under challenge.
We take the point of limitation for consideration. According to the complainant, O.P.No.1 acknowledged the liability by signing Bill of Exchange after Saurab Tanna expired on 08/11/1997. The interest was stopped after 25/10/1997. The liability was acknowledged according to the complainant after 08/11/1997. The consumer complaint is filed on 24/05/1999. The consumer complaint is filed well within two years from the date of acknowledgement of so called liability. We will thoroughly consider the issue of acknowledgement of liability afterwards.
The short point that arises for consideration is as to whether the debt left by husband is liable to be discharged by the wife after demise of husband. Under the Hindu Law, it is pious obligation of a son to discharge the debt left by his father. Such is not the position with regard to wife. The wife is not under pious obligation or under legal obligation to discharge the debt incurred by her husband.
The complainant has based his entire claim on the basis of so called acknowledgement of liability. The Bill of Exchange is placed on record. According to the complainant, the O.P.No.1 has signed the Bill of Exchange and accepted or acknowledged the liability there under. The Forum below accepted the case of the complainant and ignored the findings recorded by the Bombay City Civil Court. We carefully perused the judgement passed in S.C. Suit No.1788/2001, which was filed by the O.P.No.1 i.e. present appellant. The main issue involved in the said suit was in respect of the so called acknowledgement of liability. The City Civil Court has recorded a clear finding that the Bill of Exchange does not bear the signature of the plaintiff i.e. O.P.No.1. This finding of the City Civil Court is binding on the Consumer Forum, which is quasi-judicial Forum. The finding arrived at by the Bombay City Civil Court takes wind out of the sail of the complainant. The entire base of the consumer complaint filed by the complainant goes away because of finding of the Bombay City Civil Court. The Forum below without minding the consequences of the finding recorded by the City Civil Court came to a wrong conclusion that O.P.No.1 should have brought rebuttal evidence. The reasoning given by the Forum below is beyond our comprehension. The Forum below is well aware about finding recorded by the Bombay City Civil Court. The entire case of the complainant is made out on the basis of fabricated signature. The Forum below having regard to the clear-cut finding recorded by the Bombay City Civil Court ought to have dismissed the complaint. The case made out by the complainant in the consumer complaint is without any basis and foundation.
The privity of contract was between the complainant and the Proprietor of M/s.Avishkar Fabrics. There is no privity of contract between the complainant and O.P.No.1. It is tried to be argued on behalf of the complainant that the entire assets belonging to Saurab Tanna are in the possession of O.P.No.1. Such a presumption would be wrong. The Consumer Forum is not expected to hold heirship inquiry. The Consumer Forum is not expected to find out which legal heir inherited movable and immovable property left by the deceased. We do not know as to whether deceased died leaving behind Will or not. The order passed by the Forum below directing to refund the deposit money therefore suffers from illegality.
The issue with regard to maintainability of the complaint with regard to Bill of Exchange is not considered. Because there is forgery with regard to signature of O.P.No.1. The Bill of Exchange is a spurious document so far as acknowledgement of liability of O.P.No.1 is concerned. There is no acknowledgement of liability as such. Therefore, the maintainability of the complaint in relation to Bill of Exchange need not be gone into. However, we make it clear that default on the part of Proprietor to carry his obligation to repay the principal deposit money or interest constitutes deficiency in service so as to warrant filing of complaint before the Consumer Forum seeking relief under the Consumer Protection Act, 1986. The complainant is free to approach the City Civil Court for a decree against legal heirs of deceased Saurab Tanna on the ground that the property left by Saurab Tanna is in possession of the legal heirs. The Civil Court is competent to enforce a decree against the legal heir, who is in possession of the property left by proprietor of M/s.Avishkar Fabrics. In the result, we pass the following order :-
-: ORDER :-
1. Misc. Appl. No.3256/2006 is allowed. Delay is condoned.
2. Appeal is allowed. The impugned order dated 06/10/2006 is quashed and set aside. Complaint stands dismissed.
3.
No order as to costs.
4. Misc. Appl. No.3255/2006, which is for stay stands disposed of.
5. Copies of the order be furnished to the parties.
(S. P. Lale) (P.N. Kashalkar) (B.B. Vagyani) Member Judicial Member President dd.