State Consumer Disputes Redressal Commission
Parmod Kumar Son Of Naurata Ram vs Sng Chemicals Pvt. Ltd. on 14 January, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH
First Appeal No. 353 of 2008
Date of institution : 23.4.2008
Date of Decision : 14.1.2013
Parmod Kumar son of Naurata Ram, resident of B-II/314, Padhian Street,
Sangrur.
....Appellant.
Versus
1. SNG Chemicals Pvt. Ltd. Company having its Head Office at Tungan
Kularan Road, Near Sibian Rice Mills, Sangrur, through its Director-Raj
Garg son of Amar Nath.
2. Raj Garg son of Amar Nath, Director of SNG Chemicals Pvt. Ltd.
Company, Tungan Kularan Road, Near Sibian Rice Mills, Sangrur.
...Respondents.
First Appeal against the order dated
27.3.2008 of the District Consumer Disputes
Redressal Forum, Sangrur.
Before:-
Shri Piare Lal Garg, Presiding Member.
Shri Jasbir Singh Gill, Member.
Present:-
For the appellant : Ms. Sushma Gupta, Advocate
For the respondents : Sh. S.C. Dheer, Advocate
PIARE LAL GARG, PRESIDING MEMBER:
This is an appeal filed by the appellant/complainant-Parmod Kumar (hereinafter called 'the appellant') against the order dated 27.3.2008 of the District Consumer Disputes Redressal Forum, Sangrur(hereinafter called the 'District Forum') vide which the complaint of the appellant was dismissed by the District Forum.
2. Brief facts of the case are that the appellant (hereinafter referred to as 'the appellant') was one of the Promoter and Director of First Appeal No. 353 of 2008 2 respondent No. 1-Company (hereinafter referred to as 'respondent No.1') and was having 21000 shares of respondent No. 1. The appellant had given Rs. 1,40,000/- vide two cheques of Rs. 60,000/- dated 10.9.1996 and Rs. 80,000/- dated 11.9.1996 as deposit/loan to respondent No. 1 for the erection of Plant and Machinery through Directors and the respondent had assured the appellant to re-pay Rs. 1,40,000/- with interest @ 18% per annum and issued assurance certificate on 19.11.1996 to this effect, when the same will be demanded by the appellant. It was further submitted that in September, 2004 the appellant heard a rumor that respondent No. 2 and Arun Kumar Gupta since deceased, Director/M.D. of respondent No. 1 were planning to settle in foreign country after winding up respondent No.1-Company and they were only waiting for the release of the subsidy amount claimed from the Industry Department to the tune of Rs. 20 lacs. The appellant immediately made a demand of Rs. 1,40,000/- with interest @ 18% per annum as per the assurance and also served a legal notice on 22.9.2004. The then M.D. Sh. Arun Gupta denied to pay the amount vide reply dated 10.10.2004 by leveling baseless and false allegations on the appellant that the amount had been adjusted against the bad debits of the Companies i.e. B.J. Duplex Kundli, Haryana, Kurukshetra Paper Mills Pvt. Ltd. and Oswal Paper Allied Industries, Mukerian as per the verbal instructions of the appellant as the appellant was dealing with the above alleged companies at his own risk. It was also replied that the appellant was removed from the post of Director of the Company/respondent No.1 in an annual meeting dated 16.4.1999. The appellant was removed on basis of fake and forged documents. The Income Tax Returns filed by respondent No. 2 of respondent No. 1 were totally wrong, fake and against the real facts and the same were submitted with a bad motive to cheat the share holders. A complaint was made to the First Appeal No. 353 of 2008 3 SSP, Sangrur, DGP, Punjab Police, and also filed a Civil Suit for declaration before the Civil Judge, Senior Division, Sangrur. A criminal complaint was also filed under Sections 420, 405, 415, 422, 463, 464, 468, 469, 471, 499, 500 and 120-B IPC and under Section 2, 58-A, 259, 220, 303 and 309 of Company Law before C.J.M., Sangrur. The complaint was filed with the prayer that there was deficiency in service on the part of the respondents and they may be directed to pay Rs. 1,40,000/- alongwith interest as well as Rs. 1 lac as compensation.
3. Upon notice, reply was filed by the respondents taking preliminary objection regarding maintainability, jurisdiction, limitation as well as on merits. It was pleaded that the appellant had already filed Civil Suit in the Court of Sh. Ravinder Kumar, Addl. Civil Judge (Sr. Divn.), Sangrur with regard to the same relief, which was pending for 1.12.2007, and also filed criminal complaint before the Court of Sh. K.B. Raheja, Chief Judicial Magistrate, Sangrur claiming Rs. 1,40,000/-, as such, the complaint was not maintainable on the same cause of action. It was admitted that Rs. 1,40,000/- were paid by the appellant to respondent No. 1 without any interest for the erection of plant and machinery. It was denied that the respondents assured the appellant to pay 18% interest on the deposited amount. It was also denied that the respondents have any plan to settle in the foreign country. It was averred that the subsidy amount had already been received from the Government of Punjab. The case of the respondent was that Rs. 1,40,000/- was due against the respondent company and the respondent Company informed the appellant through reply to the notice dated 22.9.2004 that payment of Rs. 1,40,000/- was adjusted against the bed debts of B.J. Duplex Kundli, Kurukshetra Paper Mills Limited, Kurukshetra outstanding against the appellant. Answering respondents pleaded that while the appellant was active Director in the First Appeal No. 353 of 2008 4 Company, he had business dealings with the abovesaid Company and he had given material on credit to that Company at his own risk and costs and Sh. Arun Kumar, M.D. advised the appellant not to do so but he did not listen to him. Respondents after adjusting Rs. 1,40,000/- claimed Rs. 4,04,950/- from the appellant but due to that reason he was annoyed and filed frivolous complaints against the answering respondents to compel them for compromise.
4. Learned District Forum after hearing the learned counsel for the parties and going through the record, dismissed the complaint with costs of Rs. 3,000/-, which shall be payable by the appellant to the respondents.
5. Hence, the appeal by the complainant/appellant.
6. We have gone through the pleadings of the parties, grounds of appeal, perused the record of the learned District Forum and heard the arguments of the learned counsel for the parties.
7. There is no dispute between the parties that Rs. 1,40,000/- was paid by the appellant to respondent No. 1 vide two cheques dated 10.9.1996 and 11.9.1996 and the same were not repaid by the respondents to the appellant in cash.
8. The version of the respondents for non-returning of the said amount is that the appellant started dealing with B.J. Duplex Kundli, Haryana and sold Ferric Alum to the said firm and an amount of Rs. 95,150/- was outstanding of respondent No. 1 against the said concern. Similarly the appellant himself started dealing with Kurukshetra Paper Mill, Kurukshetra and sold Ferric Alum and Rs. 68,800/- of the respondent firm was outstanding against the said concern, similarly a sum of Rs. 3,81,000/- was outstanding against Oswal Paper Allied Ind., Mukarian and the company ultimately civil suit for recovery of Rs. 3,81,000/- was filed by First Appeal No. 353 of 2008 5 respondent No.1. The above mentioned concerns withheld the payments. The Ferric Alum was supplied/sold by the appellant at his own risk, as such, Rs. 1,40,000/- was adjusted against the said bad debt and no amount of the appellant was due/outstanding against the respondents.
9. The appellant served a legal notice Ex. C-6 dated 22.9.2004 upon the respondents regarding the payment of Rs. 1,40,000/- with interest through his counsel Sh. P.L. Bansal. Reply Ex. C-7 dated 10.10.2004 of the same was given by the respondents through Sh. Kimat Rai Aggarwal to Sh. P.L. Bansal that nothing was due towards the respondents of the appellant.
10. The appellant filed the complaint before the District Forum on 25.9.2007 i.e. after two years as the cause of action accrued to the appellant on 10.10.2004 i.e. from the reply of the notice vide which the respondents had denied regarding the outstanding amount of Rs. 1,40,000/- against the respondent No. 1 firm. No application for condonation of delay was filed by the appellant with the complaint.
10. In view of the above discussion, it is clear that the complaint was not filed within limitation i.e. within two years and the same is liable to be dismissed only on this ground/score only as per Section 24A of the Consumer Protection Act, 1986, which is as under:-
"[24A. Limitation period. - (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause o action has arisen.
(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period;
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay."
First Appeal No. 353 of 2008 6
11. It is admitted case of both the parties that Civil Suit and Criminal complaints are pending before the Civil Court and before the Criminal Court, as such, the District Forum is not competent to try and decide the complicated disputes where the elaborate evidence is required to adjudicate the dispute. It was held by the Hon'ble National Commission in case "Magna Nand Vs. Haryana Urban Development Authority and Another", III (2012) CPJ 316 (NC) in para 3(relevant part) as under:-
3. We have heard Mr. S.K. Varma, Advocate, learned Counsel for the petitioner on admission of this revision petition. He has contended that both the Fora below have erroneously held that the dispute involved complicated questions of law and facts requiring voluminous evidence. According to him it is a simple matter in which the Fora below was required to compare two application forms. As the handwritings are apparently distinguishable and the interpolation on the application form is clearly discernible, it required no elaborate evidence to be recorded. Relying upon the judgment of the Hon'ble Apex Court in the case of J.J. Merchant (Dr.) v. Shrinath Chaturvedi, III (2002) CPJ 8 (SC)=IV (2002) SLT 714, he has contended that the Consumer Fora being headed by experienced judicial officers and the objective of the Consumer Protection Act, 1986 being to protect the interest of the consumer and provide inexpensive and speedy redressal of consumer grievance, the Fora below have failed to exercise their jurisdiction. We have considered the arguments advanced by the Counsel for the petitioner. Admittedly, two sets of application forms have appeared on the record purportedly made by the petitioner/complainant. While the complainant's claim is that he applied against the general category, a perusal of the application form on HUDA's record, the word general has been struck off. Of course, without any initial and against SC/ST/OBC category, the word 'SC-A' has been stated.
Both the Fora below have held this to be a matter complicated enough requiring thorough investigation and expert opinion etc. and have held this to be a fit case to be referred to a civil Court. It may be stated here that the Hon'ble Apex Court in the same judgment i.e. J.J. Merchant (supra), has held that a Consumer Forum has the discretion to direct a complainant to approach a civil Court for appropriate relief in case of complicated issues. In this case, both the Fora below in exercise of their jurisdictional discretion have delivered a concurrent finding and in that background our role in exercise of Section 21(b) of the Consumer Protection Act, 1986 is very limited.
12. The appellant also filed a complaint No. 634 of 2007 titled as "Parmod Kumar Versus S.N.G. Chemicals Pvt. Ltd. and others" before the First Appeal No. 353 of 2008 7 District Forum against the answering respondent, which was dismissed by the District Forum vide its order dated 27.3.2008 and in the said complaint the dispute of Rs. 1,40,000/- was also raised by the appellant. Against the said order of the District Forum, First Appeal No. 352 of 2008 was also filed by the appellant on 23.4.2008 which was dismissed by Additional Second Bench of this Commission vide its order dated 26.10.2012. The relevant para of the order of the Commission is reproduced:-
"12. As regards the amount of Rs. 1,40,000/- mentioned by the complainant in his complaint, the contention of the O.Ps is that the amount has already been adjusted in the amount payable by the complainant as bad debt which was created by him due to his wrong management of the company. In any case, the said matter cannot be decided in these summary proceedings because the Consumer Fora have no jurisdiction to decide such claims and counter claims between the partners interse where no consumer dispute is made out."
13. Two complaints on the same cause of action were not maintainable but this fact was not disclosed by the appellant at the time of arguments and willfully concealed the material facts from the District Forum as well as from the State Commission, as such, he is not entitled to get any relief from this Commission as held by the Hon'ble National Commission in case "L.I.C. of India & Ors. Versus Smt. C.P. Kacheebi", II (2003) CPJ 108 (NC) in para No. 5 as follows:-
We are inclined to agree that this was wilful concealment of information while filling in the form on 16.11.1991. It is widely held that insurance is a contract of good faith; whoever violates that pays a price for that. We are unable to sustain the order of the State Commission and is set aside."
14. In view of the above discussion, the appeal is dismissed with costs of Rs. 5,000/-, to be paid to the respondents by the appellant in equal share within one month from the receipt of copy of the order.
15. The arguments in this appeal were heard on 4.1.2013 and the order was reserved. Now the order be communicated to the parties. First Appeal No. 353 of 2008 8
16. The appellant had deposited an amount of Rs. 1500/- with this Commission at the time of filing the appeal. This amount of Rs. 1500/- with interest accrued thereon, if any, be remitted by the registry to the respondents in equal share by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
17. Remaining amount shall be paid by the appellant to the respondents in equal share within 30 days from the receipt of the copy of the order.
18. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Piare Lal Garg)
Presiding Member
January 14, 2013. (Jasbir Singh Gill)
as Member