State Consumer Disputes Redressal Commission
Chattar Pal Singh vs Smt. Jaspal Kaur on 21 October, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.588 of 2007.
Date of Institution: 27.04.2007.
Date of Decision: 21.10.2011.
Chattar Pal Singh S/o Sh. Gian Singh, General Manager, Punjab Dairy
Development Project, Pandori Bainsan, Tehsil and District Gurdaspur.
.....Appellant.
Versus
Smt. Jaspal Kaur wife of Sh. Balwinder Singh, Resident of village Kala
Nangal, Tehsil and District Gurdaspur.
...Respondent.
First Appeal against the order dated
23.01.2007 of the District Consumer
Disputes Redressal Forum, Gurdaspur.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Baldev Singh Sekhon, Member.
Present:-
For the appellant : Sh. Amrik Singh, Advocate.
For the respondent : None.
INDERJIT KAUSHIK, PRESIDING MEMBER:-
This order will dispose of two appeals i.e. First Appeal No.588 of 2007 (Chattar Pal Singh Vs Jaspal Kaur) and First Appeal No. 589 of 2007 (Chattar Pal Singh Vs. Balwinder Singh), as both the appeals are directed against the similar impugned order dated 23.01.2007 passed by the District Consumer Disputes Redressal Forum, Gurdaspur (in short "District Forum"). The facts are taken from 'First Appeal No. 588 of 2007' and the parties would be referred by their status in this appeal.
2. Brief facts are that Smt. Jaspal Kaur, respondent/complainant (In short "the respondent") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act"), making averments that she invested a sum of Rs.1.00 lac in Punjab Dairy Development Project, having its head First Appeal No.588 of 2007 2 office at Pandori Bainsan (hereinafter called as 'the Dairy"), on the persuasion of the appellant, who is the general manager of the said Dairy, with the assurances that the amount invested will be returned after two years and three months along with interest @ 18% p.a. The appellant and the Dairy issued receipt no.171 dated 07.09.2002, acknowledging the receipt of Rs.1.00 lac and signed the same in the presence of the respondent. The appellant also gave the undertaking in the Court Complex, Gurdaspur on 21.09.2002 which was duly attested by the Notary Public, assuring the respondent to return the amount on the expiry of the stipulated period of two years and three months, but thereafter did not return the same inspite of repeated requests and a sum of Rs.1,46,500/- is due on completion of maturity period. The appellant cheated the respondent and prayed that the appellant be directed to pay Rs.1,46,500/- and Rs.10,000/- be awarded as compensation.
3. In the reply filed on behalf of the appellant, preliminary objections were taken that the respondent can file complaint u/s 138 of the Negotiable Instruments Act, or can file a civil suit for recovery, as the respondent is not a consumer. The complaint is not maintainable as the respondent has already received payment of Rs.1,18,000/- against cheque no.559672 dated 07.04.2005. The Dairy is under winding up process and the appellant is working as administrator and the liquidation proceedings are pending and the complaint is liable to be dismissed.
4. On merits, it was admitted that the respondent invested a sum of Rs.1.00 lac in the Dairy and the appellant is the general manager. It was further submitted that the respondent has already received due interest of one year and three months, amounting to Rs.22,500/- against receipt and voucher. It was further pleaded that a notice dated 23.07.2005 was served which was duly replied. It was disclosed that the respondent came to the other party (Dairy) on 07.04.2005 and made a request for payment of the amount of Rs.1,18,000/- and the other party demanded receipt no.171 dated First Appeal No.588 of 2007 3 07.09.2002 along with undertaking dated 21.02.2002 and the cheque in question, but the respondent told that she had lost all the documents. She also requested that her only son was very serious. Believing her, the other party made payment of Rs.1,18,000/- against receipt/voucher dated 07.04.2005. The complaint is not maintainable and there was nothing due to be paid. All other allegations were denied and it was prayed that the complaint may be dismissed
5. Parties led evidence in support of their respective contentions by way of affidavits and documents.
6. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the appellant has not produced any account book, showing that the cash which was given to the respondent was in its account book and the same was withdrawn from there for paying to the respondent. The appellant has failed to prove that the due amount of the respondent has been paid, and allowed the complaint, directing the appellant to pay Rs.1,46,500/- to the respondent within one month from the receipt of copy of the order, failing which respondent shall be entitled to interest @ 9% p.a. from the date of order till recovery of whole amount.
7. Aggrieved by the impugned order dated 23.01.2007, the appellant has come up in appeal.
8. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the appellant.
9. Neither the counsel for respondent nor anybody else on behalf of the respondent appeared at the time of arguments.
10. Learned counsel for the appellant contended that the payment was made by him to the respondent and she signed the receipt after receiving the amount of Rs.1,18,000/- on 07.04.2005 and the said receipt was placed on file as Ex.R3, but the District Forum has altogether ignored the same on First Appeal No.588 of 2007 4 the pretext that the cash book has not been produced, whereas copy of the ledger and the cash book was also filed along with the receipt Ex.R3 and the order is not sustainable. The complaint filed by the respondent u/s 138 of the Negotiable Instruments Act was also dismissed by the Judicial Magistrate Ist Class, Gurdaspur vide order dated 07.08.2008 in which the said receipt was produced and relied upon.
11. We have considered the submissions made by the learned counsel for the appellant and have examined the entire record carefully.
12. We find force in the arguments of the counsel for the appellant. The District Forum ignored the receipt Ex.R3 only on the ground that any account book has not been produced to show the payment, whereas along with the receipt Ex.R3, the ledger as well as copy of cash book was produced which prove that the payment of Rs.1,18,000/- was made to the respondent. The receipt Ex.R3 is signed by the respondent and is stamped. The respondent has not led any evidence to prove that her signatures were forged and fabricated on the receipt. The receipt Ex.R3 was a documentary evidence to prove the payment, but the District Forum has ignored the same, without any reasons and on the basis of assumptions and presumptions for the reasons best known to it. The respondent-Jaspal Kaur also filed a complaint u/s 138 of the Negotiable Instruments Act before the Judicial Magistrate Ist Class, Gurdaspur and the same was dismissed vide order dated 07.08.2008, wherein the said receipt was relied upon. In that complaint also, the court observed that the complainant (respondent) has failed to prove by leading any cogent evidence that the receipt was obtained by fraud, mis- representation on a plain paper.
13. The order of the District Forum is not sustainable in the eyes of law. Accordingly, the appeal filed by the appellant is accepted and the impugned order dated 23.01.2007 under appeal passed by the District Forum, is set aside. Consequently, the complaint filed by the respondent/complainant is dismissed. No order as to costs.
First Appeal No.588 of 2007 5
14. The appellant had deposited an amount of Rs.25,000/- with this Commission vide receipt dated 18.05.2007. This amount with interest accrued thereon, if any, be remitted by the registry to the appellant through its General Manager, by way of a crossed cheque/demand draft after the expiry of 45 days.
F.A. No.589 of 2007:-
15. Similarly, in F.A. No.589 of 2007, respondent-Balwinder Singh invested a sum of Rs.1.00 lac in Punjab Dairy Development Project, having its head office at Pandori Bainsan (hereinafter called as 'the Dairy"), on the assurances of getting back the amount invested after two years and three months along with interest @ 18% p.a. The appellant and the Dairy issued receipt no.220 dated 10.08.2002, acknowledging the receipt of Rs.1.00 lac and signed the same in the presence of the respondent. The appellant issued duly signed cheque no.1,18,000/- in favour of the respondent and after expiry of maturity period, respondent presented the above cheque to his banker i.e. State Bank of India, Gurdaspur but the same was returned by the bank of the appellant with remarks 'insufficient funds'. On apprising the appellant about the return of above cheque by the bank, appellant undertook to pay Rs.1,18,000/- within one week, but failed to do so, and direction was sought to the appellant to pay Rs.1,40,500/- along with Rs.10,000/- as compensation.
16. The complaint was contested by the appellant on the similar lines of F.A. No.588 of 2007 and it was submitted that the respondent has been paid a sum of Rs.1,40,500/- vide receipt/voucher dated 10.11.2004 in the presence of witnesses.
17. The District Forum observed that the appellant has not filed any document, showing as to where from the said cash was arranged and allowed the complaint, directing the appellant to pay Rs.1,40,500/- to the respondent within one month.
18. In view of the discussion and findings given in F.A.No.588 of 2007 (Chattar Pal Singh Vs Jaspal Kaur) and in view of the fact that in this First Appeal No.588 of 2007 6 case also, the District Forum ignored the receipt Ex.R3 whereas along with the said receipt, the ledger as well as copy of cash book was produced by the appellant to prove that payment of Rs.1,40,500 was made to the respondent on 10.11.2004, the appeal i.e. F.A. No.589 of 2007 (Chattar Pal Singh Vs. Balwinder Singh) filed by the appellant is also accepted and the impugned order dated 23.01.2007 under appeal passed by the District Forum, is set aside. Consequently, the complaint filed by the respondent-Balwinder Singh is dismissed. No order as to costs.
19. The appellant had deposited an amount of Rs.25,000/- with this Commission vide receipt dated 18.05.2007 in F.A. No.589 of 2007. This amount with interest accrued thereon, if any, be remitted by the registry to the appellant through its General Manager, by way of a crossed cheque/demand draft after the expiry of 45 days.
20. The arguments in both these appeals were heard on 13.10.2010 and the order was reserved. Now the order be communicated to the parties.
21. The appeals could not be decided within the stipulated timeframe due to heavy pendency of court cases.
22. Copy of this order be placed in F.A. No.589 of 2007(Chattar Pal Singh Vs. Balwinder Singh).
(Inderjit Kaushik) Presiding Member (Baldev Singh Sekhon) Member October 21, 2011.
(Gurmeet S)